Thacker v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on November 14, 2014. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
KURT D. THACKER
CIVIL NO. 13-3098
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Kurt D. Thacker, 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 period of disability and disability insurance benefits
(DIB) 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).
Plaintiff protectively filed his current application for DIB on November 18, 2010,
alleging an inability to work since December 31, 2008, due to otitis externa, obesity, moderate
degenerative disc disease, nicotine dependence, osteoarthritis, chronic back pain, gout, lateral
epicondylitis, gastroesophageal reflux disease (GERD), chronic migratory arthritis, vascular
headaches, hypertension, and chronic pain syndrome. (Tr. 152, 191). For DIB purposes,
Plaintiff maintained insured status through December 31, 2009. (Tr. 10, 29, 168). An
administrative hearing was held on August 15, 2012, at which Plaintiff appeared with counsel
and testified. (Tr. 25-65).
By written decision dated September 20, 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: degenerative
disc disease, status post discectomy; degenerative joint disease of both knees; and obesity.
However, after reviewing all of the evidence presented, the ALJ determined that, during the
relevant time period, 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 that during the relevant time period, Plaintiff retained the residual
functional capacity (RFC) to:
perform “sedentary” work as defined in 20 CFR 404.1567(a) except he was
capable of only occasional stooping, kneeling, crouching, or crawling.
Furthermore, he was unable to climb ladders, ropes, or scaffolds.
(Tr. 13). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a document preparer, a telephone quotation clerk, and a sorter during the relevant time period.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on September 6, 2013. (Tr. 1-4). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 8).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 12, 14).
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 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
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. 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.
Plaintiff argues the following issues on appeal: 1) the ALJ erred in failing to find
Plaintiff’s chronic articular pain to be a severe impairment; 2) the ALJ erred in determining
Plaintiff’s RFC; and 3) the ALJ’s decision denying benefits is not supported by substantial
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, 2009. 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 December 31, 2008, his alleged onset
date of disability, through December 31, 2009, 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).
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).
The ALJ clearly considered all of Plaintiff’s impairments during the relevant time period,
including the impairments that were found to be non-severe. 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”). The Court finds the ALJ did not commit reversible
error in setting forth Plaintiff’s severe impairments for the time period in question.
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 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 non-examining
agency medical consultants, Plaintiff’s subjective complaints, and his medical records when he
determined Plaintiff could perform sedentary work with limitations during the time period in
question. 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. While Plaintiff argued that there was no medical opinion regarding
Plaintiff’s abilities for the relevant time period, a review of the record revealed that Drs.
Melodee Woodard and John May, both non-examining medical consultants, opined that Plaintiff
could perform light work with limitations during the time period in question. (Tr. 74-77, 550).
Plaintiff's capacity to perform sedentary work with limitations is also supported by the
fact that the medical evidence does not indicate that Plaintiff's examining physicians placed
restrictions on his activities that would preclude performing the RFC determined for the time
period in question. See Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (lack of physicianimposed restrictions militates against a finding of total disability). The ALJ also took Plaintiff’s
obesity into account when determining that Plaintiff could perform sedentary work with
limitations. Heino v. Astrue, 578 F.3d 873, 881-882 (8th Cir. 2009) (when an ALJ references
the claimant's obesity during the claim evaluation process, such review may be sufficient to
avoid reversal). 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 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 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 for the time period
in question. Although it is clear that Plaintiff suffers with some degree of limitation, he has not
established that he was unable to engage in any gainful activity during the relevant time period.
Accordingly, the Court concludes that substantial evidence supports the ALJ’s conclusion that
Plaintiff’s subjective complaints were not totally credible.
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 document preparer,
a telephone quotation clerk, and a sorter 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).
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 14th day of November, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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