Bell v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on October 22, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

ROSE M. BELL

PLAINTIFF

v.

CIVIL NO. 12-3084

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Rose M. Bell, 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) benefits
under the provisions of Title II 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).
I.

Procedural Background:
Plaintiff protectively filed her current applications for DIB and SSI on November 17,

2008, and June 15, 2010, respectively, alleging an inability to work since August 15, 2005, due
to hearing loss. (Tr. 130, 133, 180). For DIB purposes, Plaintiff maintained insured status
through December 31, 2005. (Tr. 11, 176). An administrative hearing was held on May 26,
2010, at which Plaintiff appeared with counsel and testified. (Tr. 25-76).

1

Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.

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By written decision dated April 4, 2011, the ALJ found Plaintiff was not disabled prior
to December 31, 2005, but that Plaintiff became disabled on June 15, 2010, and remained
disabled through the date of the decision. (Tr.11). The ALJ found that since the alleged onset
date of August 15, 2005, Plaintiff had an impairment or combination of impairments that were
severe. (Tr. 13). Specifically, the ALJ found Plaintiff had the following severe impairments:
bilateral hearing loss. However, after reviewing all of the evidence presented, he determined that
since the alleged onset date, 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. 14). The ALJ found that, as of and prior to December 31, 2005, Plaintiff
retained the residual functional capacity (RFC) to perform a full range of work at all exertional
levels except Plaintiff could not perform work that required excellent hearing. (Tr. 15). The
ALJ found that prior to December 31, 2005, Plaintiff was able to perform her past relevant work
as an inspector/packer. (Tr. 18).
The ALJ found that since Plaintiff’s SSI application on June 15, 2010, Plaintiff had the
following severe impairments: severe to profound bilateral hearing loss, a mood disorder, and
an anxiety disorder. (Tr. 13). The ALJ found that since June 15, 2010, Plaintiff retained the
RFC to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: she can perform no work requiring excellent hearing
and is unable to meet the basic mental demands of competitive, remunerative
unskilled work, i.e. she is unable to respond to supervision, co-workers and usual
work situations or deal with changes in a routine work setting on a sustained
basis.
(Tr. 17). The ALJ found that since June 15, 2010, Plaintiff was unable to perform her past

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relevant work or any work in the national economy. (Tr. 19). The ALJ found that as of June 15,
2010, Plaintiff was disabled and continued to be disabled through the date of the decision. (Tr.
19).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on May 25, 2012. (Tr. 1-6). 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. 9,10).
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.
II.

Applicable Law:
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).
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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 her 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. 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.
III.

Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ erred in failing to properly

develop the record; and 2) the ALJ erred in determining that Plaintiff’s mental impairment was
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not severe prior to the expiration of Plaintiff’s insured status.
A.

Insured Status:

In order to have insured status under the Act, an individual is required to have twenty
quarters of coverage in each forty-quarter period ending with the first quarter of disability. 42
U.S.C. § 416(i)(3)(B). Plaintiff last met this requirement on December 31, 2005. Regarding
Plaintiff’s application for DIB, the overreaching issue in this case is the question of whether
Plaintiff was disabled during the relevant time period of August 15, 2005, her alleged onset date
of disability, through December 31, 2005, the last date she was in insured status under Title II
of the Act.
In order for Plaintiff to qualify for DIB she must prove that, on or before the expiration
of her insured status she was unable to engage in substantial gainful activity due to a medically
determinable physical or mental impairment which is expected to last for at least twelve months
or result in death. Basinger v. Heckler, 725 F.2d 1166, 1168 (8th Cir. 1984). Records and
medical opinions from outside the insured period can only be used in “helping to elucidate a
medical condition during the time for which benefits might be rewarded.” Cox v. Barnhart, 471
F.3d 902, 907 (8th Cir.2006) (holding that the parties must focus their attention on claimant's
condition at the time she last met insured status requirements).
B.

Fully and Fairly Develop the Record:

An ALJ is required to develop the record fully and fairly. See Freeman v. Apfel, 208 F.3d
687, 692 (8th Cir. 2000) (ALJ must order consultative examination only when it is necessary for
an informed decision). After reviewing the administrative record, it is clear that the record
before the ALJ contained the evidence required to make a full and informed decision regarding
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Plaintiff’s capabilities during the relevant time period. See Strongson v. Barnhart, 361 F.3d
1066, 1071-72 (8th Cir.2004) (ALJ must develop record fully and fairly to ensure it includes
evidence from treating physician, or at least examining physician, addressing impairments at
issue).
C.

Plaintiff’s Impairments:

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 he 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 improperly found Plaintiff’s alleged mood disorder, to be
a non-severe impairment prior to the expiration of her insured status. While the ALJ did not find
this alleged impairment to be severe prior to her date last insured, the ALJ discussed Plaintiff’s
alleged impairment in the decision, and clearly stated that he considered all of Plaintiff’s
impairments, including the impairments that were found to be non-severe. (Tr. 13). As pointed
out by the ALJ, a review of the record revealed that on December 28, 2005, Plaintiff reported
experiencing anxiety/depression which she associated with the loss of family members and her
divorce. (Tr. 268). Plaintiff was started on Zoloft. When Plaintiff returned for follow-up visits
for her intermittent knee pain on June 26, 2006, and July 11, 2006, Plaintiff made no mention
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of her anxiety/depression. (Tr. 270-271). While the ALJ found that Plaintiff later developed a
severe mental impairment, the Court finds substantial evidence to support the ALJ’s
determination that Plaintiff did not have a severe mental impairment prior to the expiration of
her insured status.
D.

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.
In determining that Plaintiff maintained the RFC to perform a full range of work at all
exertional levels with the exception that Plaintiff could not perform work that required excellent
hearing, the ALJ considered the medical assessments of the non-examining agency medical
consultants; Plaintiff’s subjective complaints; and her medical records for the relevant time
period. Plaintiff's capacity to perform work, at all exertional levels with a hearing limitation, is
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also supported by the fact that the medical evidence does not indicate that Plaintiff's examining
physicians placed restrictions on her activities that would preclude performing the RFC
determined for the relevant time period. See Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999)
(lack of physician-imposed restrictions militates against a finding of total disability).
Accordingly, the Court finds there is substantial evidence of record to support the ALJ’s RFC
findings.
E.

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 Eighth Circuit has observed, “Our touchstone is that [a claimant’s] credibility
is primarily a matter for the ALJ to decide.” Edwards, 314 F.3d at 966.
After reviewing the administrative record, it is clear that the ALJ properly considered and
evaluated Plaintiff’s subjective complaints, including the Polaski factors. Based on the record
as a whole, the Court finds there is substantial evidence to support the ALJ’s credibility findings.
F.

Hypothetical Question to the Vocational Expert:

After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical the ALJ posed to the vocational expert fully set forth
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the impairments which the ALJ accepted as true and which were supported by the record as a
whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds that
the vocational expert's opinion constitutes substantial evidence supporting the ALJ's conclusion
that during the relevant time period Plaintiff's impairments did not preclude her from performing
her past relevant work as an inspector/packer. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.
1996)(testimony from vocational expert based on properly phrased hypothetical question
constitutes substantial evidence).
IV.

Conclusion:
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 22nd day of October, 2013.

/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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