Vest v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 15, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
KATHERINE M. VEST
CIVIL NO. 11-3113
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Katherine Marie Vest, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and XVI
of the Social Security Act (Act). In this judicial review, the Court must determine whether there
is substantial evidence in the administrative record to support the Commissioner's decision. See
42 U.S.C. § 405(g).
Plaintiff protectively filed her current applications for DIB and SSI on June 25, 2010,
alleging an inability to work since June 18, 2010, due to a herniated disc in the neck, neck spurs,
mental stress, attention deficit disorder, and anxiety. (Tr. 176, 183, 223). An administrative
hearing was held on September 1, 2011, at which Plaintiff appeared with counsel and testified.
By written decision dated September 15, 2011, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.
11). Specifically, the ALJ found Plaintiff had the following severe impairments: a cervical spine
disorder. However, after reviewing all of the evidence presented, the ALJ determined that
Plaintiff’s impairments did not meet or equal the level of severity of any impairment listed in the
Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 12). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that
she is able to occasionally climb ramps and stairs, balance, stoop, kneel, crouch
and crawl, but no climbing ropes, ladders, or scaffolds. The claimant cannot
(Tr. 12). With the help of a vocational expert, the ALJ determined Plaintiff could perform her
past relevant work as a license clerk. (Tr. 15).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on October 5, 2011. (Tr. 1-4). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8, 10).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
This Court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner's decision. The ALJ's decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d
964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other
words, 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. 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 her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A),
1382c(a)(3)(A). The Act defines “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 her disability, not simply her impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given her age, education, and experience. See 20 C.F.R. §§ 404.1520, 416.920. Only
if the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work
experience in light of her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520, 416.920.
Plaintiff argues the following issues in this appeal: 1) the ALJ erred in failing to find
Plaintiff’s depression, attention deficit disorder, and chronic fatigue to be severe impairments;
2) the ALJ erred in determining Plaintiff’s RFC; and 3) the ALJ erred in performing the
Motion for New and Material Evidence:
On May 10, 2012, Plaintiff filed a brief setting forth reasons why she believed the ALJ
had erred in denying her applications for disability benefits. (Doc. 8). In her brief, Plaintiff
attached as an exhibit the September 22, 2011, report and opinion of Dr. Vann Arthur Smith, a
neuropsychologist, who opined that Plaintiff was unable to perform substantial gainful activity.
(Doc. 8, Attachment 1). Plaintiff argues that while this report was not before the ALJ, it was
submitted to the Appeals Council therefore the Court can consider this evidence when reviewing
the ALJ’s determination. Defendant filed a brief on June 8, 2012, arguing that this evidence was
not part of the certified administrative record, and therefore cannot be considered. (Doc. 10).
The Court notes that the Appeals Council Notice dated October 5, 2011, did not state that it had
received or reviewed the findings of Dr. Smith. (Tr. 1-4). As it appears this evidence was not
before the Defendant at any time, the Court will construe Plaintiff’s brief and exhibits as a
motion for the Court to consider new and material evidence.
A court may remand a social security claim for consideration of additional evidence “only
upon a showing that there is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding.” Hepp v. Astrue, 511
F.3d 798, 808 (8th Cir.2008) (quoting 42 U.S.C. § 405(g)). “To be material, new evidence must
be non-cumulative, relevant, and probative of the claimant's condition for the time period for
which benefits were denied, and there must be a reasonable likelihood that it would have
changed the Secretary's determination.” Woolf v. Shalala, 3 F.3d 1210, 1215 (8th Cir.1993).
This evidence concerns Plaintiff’s medical condition three weeks after the ALJ’s unfavorable
In order for new evidence to be submitted, Plaintiff must also show good cause for failing
to incorporate the evidence into the administrative proceeding. In referencing Dr. Smith’s
opinion, Plaintiff states this evidence was before the Appeals Council and therefore can be
considered by the Court.
A review of the certified administrative record failed to show that Plaintiff attempted to
submit Dr. Smith’s evaluation to the Appeals Council. After reviewing the Appeal Council’s
Notice, Plaintiff’s counsel should have been alerted to the fact that the Appeals Council failed
to mention the receipt or review of Dr. Smith’s opinion. Plaintiff’s counsel could have then
requested that the Appeals Council reconsider and include Dr. Smith’s report in the record for
review as Plaintiff’s counsel alleges this evidence was mailed to Defendant on September 29,
2011. Because Plaintiff failed to address why this evidence was not submitted to the Appeals
Council, the Court does not find Plaintiff established good cause for failing to incorporate the
evidence into the administrative proceeding. See Hepp, 511 F.3d at 808 (citing Hinchey v.
Shalala, 29 F.3d 428, 433 (8th Cir.1994))(“Good cause does not exist when the claimant had the
opportunity to obtain the new evidence before the administrative record closed but failed to do
so without providing a sufficient explanation.”). Based on the above, the Court will not consider
this evidence when determining if substantial evidence supports the ALJ’s determination.
At Step Two of the sequential analysis, the ALJ is required to determine whether a
claimant's impairments are severe. See 20 C .F.R. § 404.1520(c). To be severe, an impairment
only needs to have more than a minimal impact on a claimant's ability to perform work-related
activities. See Social Security Ruling 96-3p. The Step Two requirement is only a threshold test
so the claimant's burden is minimal and does not require a showing that the impairment is
disabling in nature. See Brown v. Yuckert, 482 U.S. 137, 153-54 (1987). The claimant,
however, has the burden of proof of showing she suffers from a medically-severe impairment
at Step Two. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.2000).
Plaintiff argues that the ALJ erred in not finding Plaintiff’s depression, attention deficit
disorder, and chronic fatigue to be severe impairments. While the ALJ did not find these
impairments to be severe, the ALJ specifically discussed these alleged impairments, and clearly
stated that he considered all of Plaintiff’s impairments, including the impairments that were
found to be non-severe. (Tr. 10-11). See Swartz v. Barnhart, 188 F. App'x 361, 368 (6th
Cir.2006) (where ALJ finds at least one “severe” impairment and proceeds to assess claimant's
RFC based on all alleged impairments, any error in failing to identify particular impairment as
“severe” at step two is harmless); Elmore v. Astrue, 2012 WL 1085487 *12 (E.D. Mo. March
5, 2012); see also 20 C.F.R. § 416.945(a)(2) (in assessing RFC, ALJ must consider “all of [a
claimant's] medically determinable impairments ..., including ... impairments that are not ‘severe’
”); § 416.923 (ALJ must “consider the combined effect of all [the claimant's] impairments
without regard to whether any such impairment, if considered separately, would be of sufficient
The Court further notes that a review of the evidence reveals that while Plaintiff did
report fatigue to her treating physician at times, in October of 2010, Plaintiff denied experiencing
fatigue. (Tr. 401). The record further revealed that Plaintiff’s attention deficit disorder was well
controlled with the use of medication. As pointed out by the ALJ, Plaintiff was able to perform
her job as a license clerk for fifteen years while being treating for this impairment. It is also
noteworthy that in August of 2010, Plaintiff reported to Dr. Nancy Bunting that she did not know
of any mental or emotional problems that interfered with her working. (Tr. 363).
Based on the evidence of record, the Court finds that the ALJ’s determination that
Plaintiff’s alleged depression, attention deficit disorder and fatigue were not “severe”
impairments does not constitute reversible error.
The ALJ’s RFC Determination:
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. This includes medical
records, observations of treating physicians and others, and the claimant’s own descriptions of
her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from symptoms such as pain
are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3). The United States Court of
Appeals for the Eighth Circuit has held that a “claimant’s residual functional capacity is a
medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, an ALJ’s
determination concerning a claimant’s RFC must be supported by medical evidence that
addresses the claimant’s ability to function in the workplace. Lewis v. Barnhart, 353 F.3d 642,
646 (8th Cir. 2003). “[T]he ALJ is [also] required to set forth specifically a claimant’s
limitations and to determine how those limitations affect his RFC.” Id.
The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit, and there was sufficient evidence for the ALJ to make
an informed decision. When determining Plaintiff’s RFC, the ALJ specifically discussed the
relevant medical records, including the “other source “ opinions of LaGena L. Rosa, DC, and Joe
W. McCoy, DC, and set forth the reasons for the weight given to the medical and “other source”
opinions. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012) (“It is the ALJ’s function
to resolve conflicts among the opinions of various treating and examining physicians”)(citations
omitted). Based on the record as a whole, the Court finds substantial evidence to support the
ALJ’s RFC determination for the relevant time period.
Subjective Complaints and Credibility Analysis:
The ALJ was required to consider all the evidence relating to Plaintiff’s subjective
complaints including evidence presented by third parties that relates to: (1) Plaintiff's daily
activities; (2) the duration, frequency, and intensity of her pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of her medication; and (5) functional
restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While an ALJ may
not discount a claimant's subjective complaints solely because the medical evidence fails to
support them, an ALJ may discount those complaints where inconsistencies appear in the record
as a whole. Id. As the United States Court of Appeals for the Eighth Circuit observed, “Our
touchstone is that [a claimant's] credibility is primarily a matter for the ALJ to decide.” Edwards
v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
After reviewing the administrative record, and the Defendant’s well-stated reasons set
forth in his brief, it is clear that the ALJ properly considered and evaluated Plaintiff’s subjective
complaints, including the Polaski factors. The record revealed that during the relevant time
period, Plaintiff received unemployment benefits. The Court notes “[a] claimant may admit an
ability to work by applying for unemployment compensation benefits because such an applicant
must hold himself out as available, willing and able to work.” Jernigan v. Sullivan, 948 F.2d
1070, 1074 (8th Cir.1991).
Plaintiff also alleged an inability to seek treatment due to a lack of finances; however,
the record is void of any indication that Plaintiff had been denied treatment due to the lack of
funds. Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding that lack of evidence
that plaintiff sought low-cost medical treatment from her doctor, clinics, or hospitals does not
support plaintiff’s contention of financial hardship). The Court would also point out that the
record revealed in August of 2010, Plaintiff was noted to be driving a BMW sports convertible,
and that Plaintiff was able to come up with the funds to support her smoking habit.
As for activities of daily living, the record revealed that in August of 2010, Plaintiff
reported she was able to drive herself to appointments, to shop without difficulty, to perform
household chores, to watch television, to use the computer for email and solitaire, and to attend
her daughter’s school events. This level of activity belies Plaintiff’s complaints of pain and
limitation and the Eighth Circuit has consistently held that the ability to perform such activities
contradicts a Plaintiff’s subjective allegations of disabling pain. See Hutton v. Apfel, 175 F.3d
651, 654-655 (8th Cir. 1999) (holding ALJ’s rejection of claimant’s application was supported
by substantial evidence where daily activities– making breakfast, washing dishes and clothes,
visiting friends, watching television and driving-were inconsistent with claim of total disability).
Therefore, although it is clear that Plaintiff suffers with some degree of pain, she has not
established that she is unable to engage in any gainful activity. See Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000) (holding that mere fact that working may cause pain or discomfort does not
mandate a finding of disability). Accordingly, the Court concludes that substantial evidence
supports the ALJ’s conclusion that Plaintiff’s subjective complaints were not totally credible.
Past Relevant Work:
Plaintiff has the initial burden of proving that she suffers from a medically determinable
impairment which precludes the performance of past work. Kirby v. Sullivan, 923 F.2d 1323,
1326 (8th Cir. 1991). Only after the claimant establishes that a disability precludes performance
of past relevant work will the burden shift to the Commissioner to prove that the claimant can
perform other work. Pickner v. Sullivan, 985 F.2d 401, 403 (8th Cir. 1993).
According to the Commissioner's interpretation of past relevant work, a claimant will not
be found to be disabled if she retains the RFC to perform:
1. The actual functional demands and job duties of a particular past
relevant job; or
2. The functional demands and job duties of the occupation as
generally required by employers throughout the national economy.
20 C.F.R. §§ 404.1520(e); S.S.R. 82-61 (1982); Martin v. Sullivan, 901 F.2d 650, 653 (8th Cir.
1990)(expressly approving the two part test from S.S.R. 82-61).
The Court notes in this case the ALJ relied upon the testimony of a vocational expert,
who testified that Plaintiff’s past relevant work consisted of a light, semi-skilled job. See Gilbert
v. Apfel, 175 F.3d 602, 604 (8th Cir. 1999) ("The testimony of a vocational expert is relevant
at steps four and five of the Commissioner's sequential analysis, when the question becomes
whether a claimant with a severe impairment has the residual functional capacity to do past
relevant work or other work") (citations omitted). Accordingly, the ALJ properly concluded
Plaintiff could perform her past relevant work as a license clerk, as performed in the national
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision denying the Plaintiff benefits, and thus the decision
should be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be
dismissed with prejudice.
DATED this 15th day of February, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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