Ballance v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on November 14, 2013. (rw)

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

JACKSON E. BALLANCE

PLAINTIFF

v.

CIVIL NO. 12-3104

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Jackson E. Ballance, 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 his 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).
I.

Procedural Background:
Plaintiff protectively filed his current application for SSI on October 2, 2009, alleging

an inability to work since May 30, 2007, due to his back, neck, wrist, knees, and feet. (Tr. 96,
146, 203). An administrative hearing was held on September 8, 2010, at which Plaintiff
appeared with counsel and testified. (Tr. 471-514). Subsequent to the hearing, Plaintiff filed a

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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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DIB application alleging disability since May 30, 2007. (Tr. 13). This DIB application was
escalated to the hearing level. (Tr. 13). For DIB purposes, Plaintiff maintained insured status
through June 30, 2007. (Tr. 13, 100).
By written decision dated July 11, 2011, the ALJ found that during the relevant time
period, Plaintiff performed substantial gainful activity from January of 2008, through June of
2008 when he was laid off from work. (Tr. 15). The ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 16).
Specifically, the ALJ found Plaintiff had the following severe impairments: degenerative disc
disease/osteoarthritis of the cervical, thoracic, and lumbar spine; obesity; hypertension; left
lateral epicondylitis; borderline intellectual functioning; a learning disorder, NOS; a depressive
disorder, NOS; a pain disorder; and a seizure 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. 16). 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 the
individual is limited to only occasional climbing of ramps/stairs, never climbing
ladders/ropes/scaffolds, only occasional balancing, stooping, kneeling, crouching,
and crawling, and no overhead work with the dominant left upper extremity. The
individual must avoid concentrated exposure to temperature extremes, wetness,
humidity, fumes/odors/dusts/gasses/poor ventilation, and hazards, e.g.
unprotected heights, unprotected moving machinery, and driving as a part of
work. The individual is further limited to work where interpersonal contact is
incidental to the work performed, the complexity of tasks is learned and
performed by rote, with few variables and use of little judgment, and the
supervision required is simple, direct, and concrete.
(Tr. 18). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
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as a production worker and an inspector. (Tr. 25).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on June 22, 2012. (Tr. 6-9). 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).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
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year and that prevents him 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 his disability, not simply his 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 his 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 his 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 his residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520, 916.520.
III.

Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ erred in determining Plaintiff’s

RFC; 2) the ALJ erred in failing to find Plaintiff met Listing 12.05(c); 3) the ALJ erred in
determining Plaintiff could perform other work, based on the “worn-out worker” rule; and 4) the
ALJ erred in making a credibility finding.
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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 June 30, 2007. 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 May 30, 2007, his alleged onset date
of disability, through June 30, 2007, the last date he was in insured status under Title II of the
Act.
In order for Plaintiff to qualify for DIB he must prove that, on or before the expiration
of his insured status he 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.

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
his 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
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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 the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and his medical records
when he determined Plaintiff could perform light work with limitations. The Court further notes
that in determining Plaintiff’s RFC, the ALJ discussed the medical opinions of examining and
non-examining medical professionals, and set forth the reasons for the weight given to the
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); Prosch v. Apfel, 201 F.3d 1010 at 1012 (the ALJ may reject the conclusions of any
medical expert, whether hired by the claimant or the government, if they are inconsistent with
the record as a whole). Based on the record as a whole, the Court finds substantial evidence to
support the ALJ’s RFC determination for the relevant time period.
C.

Listing Impairment 12.05C:

Under Listing 12.05C, a claimant suffers from the required severity of mental retardation
if he shows a valid verbal, performance, or full scale IQ of 60 through 70, with an onset prior
to age 22, and a physical or other mental impairment imposing an additional and significant
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work-related limitation of function. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C; McNamara
v. Astrue, 590 F.3d 607, 611 (8th Cir. 2010). When trying to establish that the Listing 12.05C
requirements have been met, the claimant must also meet the requirements in the introductory
paragraph of Listing 12.05. Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006). Those
requirements clearly include demonstrating that the claimant suffered “deficits in adaptive
functioning” and that those deficits “initially manifest during the developmental period [before
age 22].” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05; Cheatum v. Astrue, 388 Fed. Appx. 574,
576 (8th Cir. 2010)(citations omitted).
The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit, and that there was sufficient evidence for the ALJ to
make an informed decision. Therefore, the Court finds there is substantial evidence of record
to support the ALJ’s finding that Plaintiff did not meet Listing 12.05C.
D.

The “worn-out-worker” rule:

The “worn-out-worker” rule applies to a claimant who has:
no more than a marginal education (see § 404.1564) and work experience of 35
years or more during which [he] did only arduous unskilled physical labor, and
[he was] not working and [is] no longer able to do this kind of work because of
a severe impairment(s) (see §§ 404.1520(c), 404.1521, and 404.1523).
20 C.F.R § 404.1562. If a claimant qualifies as a worn-out worker, the Commissioner “will
consider [him] unable to do lighter work, and therefore, disabled.” Id.; see also Smith v. Shalala,
46 F.3d 45, 46 (8th Cir.1995). Marginal education is defined as “ability in reasoning, arithmetic,
and language skills which are needed to do simple, unskilled types of jobs. [The Commissioner]
generally consider[s] that formal schooling at a 6th grade level or less is a marginal education.”

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20 C.F.R. § 404.1564(b)(2). Marginal education is one level above “illiteracy” and one level
below “limited education.” Limited education is defined as having “ability in reasoning,
arithmetic, and language skills, but not enough to allow a person with these educational
qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs.”
20 C.F.R. § 404.1564(b)(3).
The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit, and that there was sufficient evidence for the ALJ to
make an informed decision. Therefore, the Court finds there is substantial evidence of record
to support the ALJ’s finding that Plaintiff did not meet the requirements of the “worn-outworker” rule.
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 his pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of his 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. A review of the record
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revealed that in August of 2010, Plaintiff reported that he was able to perform some household
chores, shop for groceries, visit friends, talk to neighbors, and exercise. (Tr. 205-226). A review
of the medical evidence further revealed that in April of 2011, Plaintiff was noted to have full
range of motion of his spine and extremities; normal strength; normal coordination; normal and
symmetrical reflexes; and no tenderness or swelling. (Tr. 403).
Therefore, although it is clear that Plaintiff suffers with some degree of pain, he has not
established that he 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.
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
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
Plaintiff's impairments did not preclude him from performing work as a production worker and
an inspector during the relevant time period. 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
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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 14th day of November, 2013.

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

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