Ockman v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 17, 2015. (tg)

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

EARL A. OCKMAN

PLAINTIFF

v.

NO. 14-3015

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Earl A. Ockman, 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 March 22, 2011,

alleging an inability to work since March 15, 2011, due to a hernia, depression, dyslexia,
illiteracy, joint pain, back pain, and high blood pressure. (Tr. 224, 231, 309). For DIB purposes,
Plaintiff maintained insured status through June 30, 2012. (Tr. 17, 239). An administrative
video hearing was held on May 31, 2012, at which Plaintiff appeared with counsel and testified.
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By written decision dated August 21, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 19).
Specifically, the ALJ found Plaintiff had the following severe impairments: a large abdominal
hernia, a mathematics disorder, and a reading deficit. 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. 19). 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
claimant is able to perform work with simple, routine and repetitive tasks,
involving only simple, work-related decisions, with few, if any workplace
changes, and no more than incidental contact with co-workers, supervisors and
the general public. He cannot engage in any occupation that requires more than
simple math or reading.
(Tr. 21). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a poultry laborer, and a production/assembly worker. (Tr. 32).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on August 13, 2013. (Tr. 9-12). 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. (Doc. 10; Doc. 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

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

severe impairments; 2) the ALJ erred in the credibility assessment of Plaintiff; and 3) the ALJ
erred in failing to consider the provisions of SSR 82-63 showing an inability to make an
adjustment to other work.
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, 2012. 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 March 15, 2011, his alleged onset date
of disability, through June 30, 2012, 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
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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.

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).
While the ALJ did not find Plaintiff’s alleged diverticulitis to be a severe impairment,
the ALJ specifically discussed this alleged impairment in the decision, and clearly stated that he
considered all of Plaintiff’s impairments, including the impairments that were found to be nonsevere. (Tr. 18). 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
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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 diverticulitis is not a “severe” impairment does not constitute
reversible error.
C.

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, and the Defendant’s well-stated reasons set
forth in her brief, it is clear that the ALJ properly considered and evaluated Plaintiff’s subjective
complaints, including the Polaski factors. As noted by the ALJ, Plaintiff testified that he started
working in the Wal-Mart tire department starting in September of 2011, for thirty-two hours a
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week. (Tr. 30). While Plaintiff testified that he was absent from his job due to his physical
impairments, as noted by the ALJ, pay-stubs submitted by Plaintiff indicate he was able to work
an average of thirty-one hours a week from September of 2011, through May of 2012. (Tr. 258274). The ALJ further pointed out that Plaintiff was able to drive and to shop independently
during the time period in question. A review of the evidence reveals that in July of 2011,
Plaintiff “very reluctantly admitted” to Dr. Nancy A. Bunting, that he was able to shop
independently. (Tr. 383).
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). As pointed out by the ALJ,
the evidence revealed that Dr. Jacob L. Dickinson offered to help Plaintiff set up an appointment
with the financial counselor at the hospital so that Plaintiff could undergo a hernia repair;
however, Plaintiff testified that he did not recall Dr. Dickinson offering to help him set up an
appointment with a financial counselor. (Tr. 52, 370). The record further revealed that Plaintiff
was able to come up with the funds to support his smoking habit during the relevant time period.
With regard to the testimony of Plaintiff's wife and friend, as well as a letter from
Plaintiff’s manager, the ALJ properly considered this evidence but found it unpersuasive. This
determination was within the ALJ's province. See Siemers v. Shalala, 47 F.3d 299, 302 (8th Cir.
1995); Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993).
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, he has
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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.
D.

The ALJ’s RFC Determination and 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
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 determining that Plaintiff maintained the RFC to perform light work with limitations,
the ALJ considered the medical assessments of the examining and non-examining agency
medical consultants; Plaintiff’s subjective complaints; and his medical records. The Court notes
that in determining Plaintiff’s RFC, the ALJ discussed the medical opinions of examining and
non-examining medical professionals, including the opinions of Drs. Anandaraj Subramanium,
Nancy Bunting, Diane Kogut, Bill F. Payne, Kay Cogbill, Jim Takach, and Vann Arthur Smith,
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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.
E.

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 a poultry laborer, and
a production/assembly worker . Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony
from vocational expert based on properly phrased hypothetical question constitutes substantial
evidence).
F.

Social Security Ruling (SSR) 82-63 showing an inability to make an
adjustment to other work:

Plaintiff argues that the ALJ erred in failing to consider the provisions of SSR 82-63,
which gives clarification to the two medical-vocational profiles which show an inability to make
a vocational adjustment to other work pursuant to 20 C.F.R. § 404.1562. See S.S.R. No. 82-63,

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1982 WL 31390 (1982). The characteristics of these two medical-vocational profiles are: (1)
marginal education and long work experience limited to arduous unskilled physical labor and (2)
advanced age, limited education and no work experience.
As Plaintiff has work experience, to be considered disabled under 20 C.F.R. § 404.1562,
a claimant must: 1) have only a marginal education; 2) have at least thirty-five years of work
experience performing arduous, unskilled physical labor; and 3) be unable due to a severe
impairment to return to such labor. 20 C.F.R. § 404.1562(a). The record does not support a
finding that Plaintiff has at least thirty-five years of work experience performing arduous
unskilled physical labor, therefore this provision does not apply, and the Court finds no error in
the ALJ’s determination that Plaintiff could perform other work in the national economy.
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 17th day of June, 2015.

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

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