Waggoner v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 16, 2014. (rg)

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

DARRELL W. WAGGONER

PLAINTIFF

v.

CIVIL NO. 13-3055

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Darrell W. Waggoner, 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 applications for DIB and SSI on October 13, 2009,

alleging an inability to work since August 28, 2009, due to seizures, epilepsy, parkinsons,
depression, memory loss, and hypoglycemia. (Tr. 141, 145, 193). For DIB purposes, Plaintiff
maintained insured status through June 30, 2010. (Tr. 10, 153). An administrative hearing was
held on February 7, 2012, at which Plaintiff after being informed of his right to representation,
testified without the assistance of a representative. (Tr. 24-71).

AO72A
(Rev. 8/82)

By written decision dated June 29, 2012, 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: osteoarthritis and
degenerative disc disease of the lumbar spine and hips; a seizure disorder; borderline intellectual
functioning; an adjustment disorder; a major depressive disorder; posttraumatic stress disorder;
and a personality 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). Light
work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may
be very little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. He can only occasionally climb ramps and stairs.
He can never climb ladders, ropes or scaffold. He can only occasionally perform
balancing, stooping, kneeling, crouching, and crawling. He must avoid all
exposure to hazards, including no driving as part of work. He can perform work
where the complexity of tasks is learned and performed by rote with a few
variables and little use of judgment. He can perform work where supervision
required is simple, direct and concrete.
(Tr. 14). With the help of a vocational expert, the ALJ determined Plaintiff could perform his
part relevant work as a compression molding machine tender and a housekeeper/cleaner. (Tr.
18).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on March 28, 2013. (Tr. 1-3). Subsequently, Plaintiff filed this action. (Doc.

-2-

AO72A
(Rev. 8/82)

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. 11, 12).
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
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
-3-

AO72A
(Rev. 8/82)

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, 416.920.
III.

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

Plaintiff did not meet Listing 11.02; and 2) the ALJ erred in determining Plaintiff’s RFC.
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, 2010. Regarding
Plaintiff’s application for DIB, the overreaching issue in this case is the question of whether
-4-

AO72A
(Rev. 8/82)

Plaintiff was disabled during the relevant time period of August 28, 2009, his alleged onset date
of disability, through June 30, 2010, 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.

Listing 11.02:

Plaintiff argues that the ALJ erred in not explicitly discussing Listing 11.02,
nonconvulsive epilepsy, when determining that Plaintiff did not have an impairment that met or
equaled a Listing of Impairments pursuant to 20 CFR Part 404, Subpart P, Appendix 1. The
Commissioner argues that the ALJ stated that he reviewed all of the evidence and found that
none of Plaintiff’s impairments met a listing and that the ALJ’s failure to specifically cite Listing
11.02 was not reversible error.
While it is preferable to have an ALJ state explicitly why a claimant failed to meet a
listing, the conclusion must be upheld if the record supports it. Garrett ex rel. Moore v.. Barnhart,
366 F.3d 643, 649 (8th Cir.2004) (internal citations omitted). The burden of proof is on the
Plaintiff to establish that his impairment meets or equals a listing. See Sullivan v. Zebley, 493
-5-

AO72A
(Rev. 8/82)

U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990). To meet a listing, an impairment must
meet all of the listing's specified criteria. Id. at 530, 110 S.Ct. 885 (“An impairment that
manifests only some of these criteria, no matter how severely, does not qualify.”); Johnson v.
Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “Medical equivalence must be based on medical
findings.” 20 C.F.R. § 416.926(b) (2003); Sullivan, 493 U.S. at 531 (“a claimant ... must present
medical findings equal in severity to all the criteria for the one most similar listed impairment”).
The Court finds, based upon the record as a whole, as well as 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 would note that the
medical evidence reflects that Plaintiff’s seizures were controlled when he took his medication
as prescribed. After reviewing the entire evidence of record, the Court finds there is sufficient
evidence to support the ALJ’s determination that Plaintiff did not meet a Listing.
C.

RFC Assessment:

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
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
-6-

AO72A
(Rev. 8/82)

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 notes that
in determining Plaintiff’s RFC, the ALJ discussed the medical opinions of examining and nonexamining medical professionals, as well as the opinions of Plaintiff’s case manager and a nurse
from a shelter where Plaintiff resided in April of 2010. The Court notes that the medical
evidence indicated that Plaintiff was blind in his right eye. (Tr. 878). However, Plaintiff failed
to include a vision impairment in his alleged impairments, and does not appear to report having
difficulty with performing normal activities of daily living due to his right eye blindness. In
addition, in March of 2012, the consultative examiner did not place any visual restrictions on
Plaintiff’s ability to work. Based on the record as a whole, the Court finds substantial evidence
to support the ALJ’s RFC determination for the relevant time period.
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 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
-7-

AO72A
(Rev. 8/82)

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, it is clear that the ALJ properly considered and
evaluated Plaintiff’s subjective complaints, including the Polaski factors. In a Function Report
dated February 9, 2010, Plaintiff indicated that he was able to spend three hours a day in class
at a men’s shelter, and to then read and play cards. (Tr. 202-209). Plaintiff also indicated that he
was able to take care of his personal needs, to walk and use public transportation, and to shop
at the grocery store. A review of the medical records revealed that Plaintiff attended group
therapy in 2009, and was noted to interact well with others in the group, and to participate in the
group exercises. (Tr. 379, 382). In June of 2010, Plaintiff reported that he was able to do
household chores, prepare meals, and go to the grocery store without assistance. (851). At that
time, Plaintiff reported that he had friends and spent time visiting family; that he played pool,
ping pong, cards, and basketball; and that he used weights. In April of 2012, Plaintiff reported
that he got along with others but only socialized with his family. (Tr. 889). Plaintiff reported that
he took care of his personal needs and performed household chores, but noted that his family did
most of the shopping.
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

-8-

AO72A
(Rev. 8/82)

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 he 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 he 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 after listening to the ALJ’s proposed hypothetical question which included the limitations
addressed in the RFC determination discussed above, testified that the hypothetical individual
would be able to perform Plaintiff’s past relevant work. 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

-9-

AO72A
(Rev. 8/82)

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 his past
relevant work as a compression molding machine tender and a housekeeper/cleaner.
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 16th day of June, 2014.

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

-10-

AO72A
(Rev. 8/82)