Fisher v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 16, 2017. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TREVOR L. FISHER
Civil No. 2:16-cv-02128
NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration
Trevor L. Fisher (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying his applications for
Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), and a period of
disability under Titles II and XVI of the Act.
The Parties have consented to the jurisdiction of a magistrate judge to conduct any and all
proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and
conducting all post-judgment proceedings. ECF No. 6. Pursuant to this authority, the Court issues
this memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed his disability applications on September 19, 2013. (Tr. 8, 113-142,
231-244). In his applications, Plaintiff alleges being disabled due to bipolar borderline personality
and headaches. (Tr. 275). Plaintiff alleges an onset date of March 16, 2011. (Tr. 8). These
applications were denied initially and again upon reconsideration. (Tr. 113-142).
Plaintiff requested an administrative hearing on his applications. (Tr. 189-190). This request
was granted, and Plaintiff’s administrative hearing was held on October 1, 2014 in Fort Smith,
Arkansas. (Tr. 28-70). At this hearing, Plaintiff was present and was represented by Fred Caddell.
Id. Plaintiff, a witness for Plaintiff, and Vocational Expert (“VE”) Jim Spraggins testified at this
hearing. Id. During this hearing, Plaintiff testified he was thirty-seven (37) years old, which is
defined as a “younger person” under 20 C.F.R. § 404.1563(c) (DIB) and 20 C.F.R. § 416.963(c)
(SSI). (Tr. 35). As for his education, Plaintiff testified he completed two years of college. Id.
On April 2, 2015, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s applications. (Tr. 5-19). The ALJ determined Plaintiff met the insured
status requirements of the Act through September 30, 2014. (Tr. 10, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since March 16, 2011,
his alleged onset date. (Tr. 10, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: mood disorder, not otherwise specified; dysthymic disorder; bipolar disorder; cannabis
abuse, episodic; anxiety disorder; and borderline personality disorder. (Tr. 10-11, Finding 3). The
ALJ also determined Plaintiff’s impairments did not meet or medically equal the requirements of any
of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr.
11-13, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 13-17, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the capacity to perform the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work at all
exertional levels but that he has nonexertional limitations. Specifically, the claimant
is able to perform work where interpersonal contact is incidental to the work
performed and where the complexity of tasks is learned and performed by rote with
few variables and little judgment. The supervision required is simple, direct and
The ALJ then considered Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17-19, Finding 6).
Considering his RFC, the ALJ determined Plaintiff retained the capacity to perform his PRW as a
construction worker II. Id. Because Plaintiff retained the capacity to perform his PRW, the ALJ
determined Plaintiff had not been under a disability, as defined by the Act, from his alleged onset
date of March 16, 2011 through the date of his decision or through April 2, 2015. (Tr. 19, Finding
Plaintiff sought review with the Appeals Council. (Tr. 26-27). On May 10, 2016, the
Appeals Council denied his request for review. (Tr. 1-3). On June 10, 2016, Plaintiff filed his
Complaint in this case. ECF No. 1. Both Parties have filed appeal briefs and have consented to the
jurisdiction of this Court. ECF Nos. 6, 13, 15. This case is now ready for decision.
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2010); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as there is substantial evidence in the record that supports the Commissioner’s decision, the
Court may not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome or because the Court would have decided the case differently. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the
findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
It is well-established that a claimant for Social Security disability benefits has the burden of
proving his or her disability by establishing a physical or mental disability that lasted at least one
year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,
160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
a “physical or mental impairment” as “an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A plaintiff must show that
his or her disability, not simply his or her impairment, has lasted for at least twelve consecutive
months. See 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)
whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
In his appeal brief, Plaintiff argues the ALJ erred in finding he was not disabled. ECF No.
13 at 8-16. Specifically, he argues the ALJ erred in his evaluation of his medical records. Id. The
ALJ found Plaintiff was not disabled because his impairments were controlled with medication. (Tr.
13-17). In response, Plaintiff argues his impairments were not controlled with medication. ECF No.
13 at 8-16. As such, he claims his case must be reversed and remanded.
In making his argument, Plaintiff primarily argues that the ALJ erred in rejecting the opinions
of his counselor, Ms. Susan Smith and his treating physician, Dr. Robert G. Bishop, M.D. ECF No.
13 at 13-17. As for the opinions of Ms. Smith, the ALJ fully evaluated her opinions but discounted
them for several reasons, including the fact they were “not consistent with her own treatment notes
that show she consistently found the claimant’s memory intact and his concentration, judgment, and
insight to be good.” (Tr. 17). The ALJ also noted Ms. Smith provided opinions regarding Plaintiff’s
limitations in July of 2013 despite the fact she had not treated him since February of 2013 and
Plaintiff had only been receiving sporadic treatment. Id. Thus, the Court cannot find the ALJ erred
in discounting her findings.1
Further, as for Dr. Bishop, the ALJ also fully considered his opinions. (Tr. 17). After
considering those opinions, the ALJ discounted them because they were “inconsistent with other
evidence of record” and were “outside the doctor’s area of expertise.” Id. Indeed, the opinions
Additionally, as a counselor, Ms. Smith is not an “acceptable medical source,” and her opinions
are not entitled to controlling weight. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).
which Plaintiff claims the ALJ was required to adopt were on a two-page “checklist” form. (Tr. 496498). Such a form is entitled to no deference between it contains no more that conclusory opinions
without any evidentiary basis. See, e.g., Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir. 1996)
(recognizing “[a] treating physician’s opinion deserves no greater respect than any other physician’s
opinion when the treating physician’s opinion consists of nothing more than vague, conclusory
statements.”). Thus, the Court cannot find the ALJ improperly considered Dr. Bishop’s findings.
As a final point, the ALJ considered Plaintiff’s substance abuse in his decision to discount
his subjective complaints. (Tr. 13-17). Plaintiff claims this was in error, and the ALJ should have
determined whether Plaintiff’s substance abuse was a contributing factor material to a determination
of disability. ECF No. 15 at 5-6. However, in his opinion, the ALJ found Plaintiff was not disabled
at Step Four of the Analysis. The ALJ did not find Plaintiff was disabled at Step Five and then need
to determine whether this standard applied. Thus, the Court also finds this is not a basis for reversal.
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating
these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 16th day of May 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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