Juarez v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 20, 2014. (src)

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

PLAINTIFF

v.

CIVIL NO. 13-3001

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Shelly L. Juarez, 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).
I.

Procedural Background:
Plaintiff protectively filed her current applications for DIB and SSI on March 10, 2010,

alleging an inability to work since August 12, 2009, due to a back injury, arthritis, diabetes,
depression, bursitis, anxiety/panic attacks, high blood pressure, menopause, memory loss, and
a vision problem. (Tr. 121, 123, 153). An administrative hearing was held on June 27, 2011,
at which Plaintiff appeared with counsel and testified. (Tr. 25-59).

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 September 22, 2011, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.
12). Specifically, the ALJ found Plaintiff had the following severe impairments: mild to
moderate arthritic changes and status post remote back surgery. 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. 13). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to perform the full range of light work as defined in 20 CFR 404.1567(b) and
416.967(b). With the help of a vocational expert, the ALJ determined Plaintiff could perform
her past relevant work as a sales attendant, a short-order cook, and a security supervisor. (Tr.
19).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence submitted by Plaintiff, denied that request on November 7,
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. 7). Both parties have filed appeal
briefs, and the case is now ready for decision. (Docs. 10, 11).
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
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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 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
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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.
III.

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

mental impairments were non-severe; 2) the ALJ erred in failing to consider Plaintiff’s
impairments in combination; 3) the ALJ erred in determining Plaintiff’s RFC; and 4) the ALJ
failed to properly evaluate Plaintiff’s ability to perform all of the duties of her past work.
A.

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 she suffers from a medically-severe impairment
at Step Two. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.2000).
While the ALJ found that Plaintiff’s alleged mental impairments were non-severe, the
ALJ clearly considered all of Plaintiff’s impairments, including the impairments that were found
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to be non-severe. (Tr. 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 severity”). Thus, the ALJ's
finding that Plaintiff's alleged mental impairments were not “severe” impairments does not
constitute reversible error.
B.

Combination of Impairments:

Plaintiff argues that the ALJ erred in failing to consider all of the claimant’s impairments
in combination.
The ALJ stated that in determining Plaintiff’s RFC, he considered “all of the claimant’s
impairments, including impairments that are not severe.” (Tr. 11). The ALJ further found that
the Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments. (Tr. 13). Such language demonstrates the ALJ considered
the combined effect of Plaintiff’s impairments. Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994).
C.

RFC Assessment and Treating and Examining Medical Opinions:

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
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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. The Court notes that in determining Plaintiff’s RFC, the ALJ specifically
discussed Plaintiff’s subjective complaints, and her medical records when he determined Plaintiff
could perform light work. The ALJ also discussed the medical opinions of examining and nonexamining 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).
With regard to Dr. Shannon Brownfield’s July of 2010, consultative examination notes and
opinion, the ALJ addressed the basis for giving little weight to Dr. Brownfield’s conclusion that
Plaintiff had severe limitations, as the ALJ found Dr. Brownfield’s opinion was inconsistent with
the longitudinal medical evidence, as well as, Dr. Brownfield’s examination notes. Prosch v.
Apfel, 201 F.3d 1010 at 1012 (the ALJ may reject the conclusions of any medical expert,
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whether hired by the claimant or the government, if they are inconsistent with the record as a
whole). The medical evidence further revealed that in 2011, Dr. Thomas Embry, one of
Plaintiff’s treating physician’s, noted Plaintiff had a normal gait, and was able to get on and off
of an examining table on her own. (Tr. 522, 527, 530, 567). The ALJ also specifically discussed
Dr. Ronald McEntire’s findings and determined that Plaintiff’s mental impairments did not
impede Plaintiff’s ability to perform bask work-related tasks. The record further revealed that
Plaintiff denied back tenderness or pain in July of 2011, that Plaintiff had good range of motion
in her extremities in August of 2011, and that Plaintiff reported no inattention or decreased
concentration in May of 2011. (Tr. 567. 595, 622, 516). Based on the record as a whole, the
Court finds substantial evidence to support the ALJ’s RFC determination.
D.

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).

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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 revealed that Plaintiff was able to take care of her personal needs; to perform some
household chores; to prepare simple meals; to drive her son to and from work, seventy-two miles
round trip; to watch movies and attend BBQ’s; and to sew a little.
The Court would also note that while Plaintiff alleged an inability to seek treatment due
to a lack of finances, 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 ALJ also pointed out
that while Plaintiff indicated that she could not seek treatment for her pain due to the lack of
funds, Plaintiff was able to come up with the funds to support her smoking habit.
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.
E.

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

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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 that the ALJ stated that he compared Plaintiff’s RFC to the mental and
physical demands of Plaintiff past work and determined that Plaintiff could perform her past
work as a sales attendant, a short order cook, and a security supervisor as this work is generally
performed. (Tr. 19). The Court notes in this case the ALJ also relied upon the testimony of a
vocational expert, who testified that Plaintiff’s past relevant work as a short order cook, security
supervisor, and a sales attendant were jobs within Plaintiff’s determined RFC. 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).

The Court would further note that the

vocational expert testified that Plaintiff’s work as a sales attendant was considered unskilled

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work. (Tr. 33). Accordingly, the ALJ properly concluded Plaintiff could perform her past
relevant work as sales attendant, a short order cook, and a security supervisor.
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 20th day of February, 2014.

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

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