McKee v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on December 4, 2015. (jn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
CAMILLE R. MCKEE

PLAINTIFF

V.

NO. 14-3083

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Camille R. McKee, 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 claim for supplemental security income (SSI)
under the provisions of Title 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 filed her current application for SSI on January 20, 2012, alleging an

inability to work since January 20, 2012, due to back problems, depression, hearing loss,
asthma, knee problems, and hips. (Tr. 19, 66, 79). An administrative hearing was held on
April 10, 2013, at which Plaintiff appeared with counsel, and she and a friend testified. (Tr.
198-239).
By written decision dated June 14, 2013, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe –
degenerative disc disease of the lumbar spine, scoliosis, degenerative joint disease of the
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knees, bilateral sensorineural hearing loss, and asthma. (Tr. 12). 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 light work as defined in 20 CFR 416.967(b) except she has moderate
bilateral hearing loss, but she has hearing aids and can understand
conversational speech, she needs to work in a controlled environment, and
should not be exposed to dust, fumes, or smoke in certain amounts of
temperature extremes.
(Tr. 13). With the help of the vocational expert (VE), the ALJ determined that Plaintiff was
capable of performing past relevant work as a general office clerk and grocery checker. (Tr.
17).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on August 4, 2014. (Tr. 3-6). Subsequently, Plaintiff filed this
action. (Doc. 1). This case is before the undersigned pursuant to the consent of the parties.
(Doc. 6). 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

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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 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)(D). 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 had engaged in
substantial gainful activity since filing her claim; (2) whether the claimant had a severe
physical and/or mental impairment or combination of impairments; (3) whether the
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impairment(s) met or equaled an impairment in the listings; (4) whether the impairment(s)
prevented the claimant from doing past relevant work; and (5) whether the claimant was able
to perform other work in the national economy given her age, education, and experience. See
20 C.F.R. §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 RFC.

See McCoy v.

Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
III.

Discussion:
Plaintiff raises the following issue in this matter – whether the ALJ erred in failing to

find Plaintiff’s hip pain/bursitis a severe impairment. (Doc. 9).
A. Severe Impairment:
An impairment is severe within the meaning of the regulations if it significantly limits
an individual’s ability to perform basic work activities. 20 C.F.R. §§ 1520(a)(4)ii),
416.920(a)(4)(ii). An impairment or combination of impairments is not severe when medical
and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s ability to
work. 20 C.F.R. § § 404.1521, 416.921. The Supreme Court has adopted a “de minimis
standard” with regard to the severity standard. Hudson v. Bowen, 870 F.2d 1392, 1395 (8th
Cri. 1989).
The Court first notes that there are minimal medical records in this case. On April 27,
2012, Dr. Shannon Brownfield conducted a General Physical Examination, wherein Dr.
Brownfield found Plaintiff had reduced range of motion in her hip with significant pain, and
that Plaintiff could not squat/arise from a squatting position due to her hip pain. (Tr. 136137).

Dr. Brownfield concluded that Plaintiff had moderate limitation in prolonged
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“position/stoop/lift/stand.” (Tr. 138). On April 28, 2012, non-examining consultant, Dr.
Sharon Keith, completed a Physical RFC Assessment form, wherein she found Plaintiff could
perform light work with certain postural and environmental limitations. (Tr. 139).
On July 3, 2012, another General Physical Examination was performed by Dr.
Anandaraj Subramanium, wherein he found Plaintiff had 90 degrees range of motion in
flexion of both of her hips, rather than the normal 100 degrees, and 100 degrees range of
motion in flexion of her knees, rather than the normal 150 degrees. (Tr. 168). He also found
that Plaintiff had 70 degrees range of motion in flexion of her lumbar spine, rather than the
normal 90 degrees. (Tr. 168). Dr. Subramanium reported that Plaintiff could perform all
limb functions, except she could not walk on her heel and toes and could not squat/arise from
a squatting position. (Tr. 169). He did not diagnosis Plaintiff with a hip condition, but rather
diagnosed her with a history of chronic back pain with left lower extremity radiculopathy,
history of bilateral hearing loss, history of asthma, and a history of knee pain. (Tr. 170). He
concluded Plaintiff had moderate limitation in prolonged “walk, stand, sit, lift, carry or
handle or hear.” (Tr. 170).
On August 21, 2012, non-examining consultant, Dr. Alice M. Davidson, completed a
Physical RFC Assessment, wherein she found that Plaintiff could perform light work with
postural restrictions, hearing restrictions, and environmental restrictions. (Tr. 192).
Considering the above records, it is clear that Plaintiff sought no medical treatment
during the relevant time period for hip pain or bursitis, which contradicts her claim of a
severe impairment in her hips. See Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997);
Williams v. Sullivan, 960 F.2d 86, 89 (8th Cir. 1992). An impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, not only by a

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claimant’s statement of symptoms. 20 C.F.R. §416.908. “While ‘[s]everity is not an onerous
requirement for the claimant to meet …it is also not a toothless standard.’” Wright v. Colvin,
789 F.3d 847, 855 (8th Cir. 2015)(quoting Kirby v. Astrue, 500 F.l3d 705, 708 (8th Cir. 2007).
Nor has Plaintiff proven or alleged any particular additional limitations on the RFC
that arise from hip pain/bursitis. Finally, even though Plaintiff asserts that she was unable to
afford treatment, there is no indication that Plaintiff was turned down by any health care
provider for financial reasons. Further, Plaintiff smoked cigarettes, and was somehow able to
afford cigarettes, which discredits her disability allegations. See Lewis v. Barnhart, 353 F.3d
642, 647 8th Cir. 2003); Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999).
In his decision, the ALJ noted that Plaintiff reported she had arthritis in her back,
hips, and knees, and that Plaintiff’s medications included Naproxen and Chantix. (Tr. 13-14).
He also discussed Plaintiff’s daily activities, and the fact that no physician placed any
functional restrictions on her activities that would preclude work activity. (Tr. 14).
Based upon the foregoing, the Court finds that Plaintiff has failed to meet her burden
of proving that she has a severe impairment of hip pain/bursitis, and finds there is substantial
evidence to support the ALJ’s decision regarding severe impairments.
B. Credibility:
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

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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 v.
Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
The Court finds there is substantial evidence to support the ALJ’s credibility analysis.
C. 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 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 ALJ is permitted to base its RFC determination on ‘a non-examining physician’s
opinion and other medical evidence in the record.’” Barrows v. Colvin, No. C 13-4087MWB, 2015 WL 1510159 at *15 (quoting from Willms v. Colvin, Civil No. 12-2871, 2013
WL 6230346 (D. Minn. Dec. 2, 2013).

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As stated earlier, the ALJ found Plaintiff had the RFC to perform light work with
moderate hearing loss and environmental limitations.

The ALJ discussed the minimal

medical records as well as the opinions of the examining and non-examining physicians. He
also addressed the testimony of Plaintiff’s friend and the documents from Plaintiff’s husband
and ex-husband. The ALJ also gave some weight to the assessments of Dr. Brownfield and
Dr. Subramanium to the extent there opinions were consistent with the medical evidence of
record and Plaintiff’s testimony.

(Tr. 16). He gave little weight to Dr. Sharon Keith’s

assessment, because he found her findings were not fully supported by the objective medical
evidence that showed she had hearing loss. (Tr. 16). He gave the opinion of Dr. Davidson
great weight (Tr. 17), and gave little weight to Plaintiff’s testimony, because he did not
believe the evidence supported her ultimate allegation of disability. (Tr. 17).
Based upon a review of the record as a whole, the Court finds there is substantial
evidence to support the ALJ’s RFC determination, and the fact that his RFC included all of
the Plaintiff’s impairments that are supported by the record.
D. Hypothetical Question:
At the hearing held before the ALJ, the ALJ posed the following hypothetical
questions to the VE:
Q: So an individual with a residual functional capacity to perform a full range
of light work. Should be able to perform the job of a general office clerk or a
grocery checker; is that right?
A: Yes, sir.
Q: Let me give you a couple hypothetical questions. Assume we have an
individual who is the same age, education, and work background as that of the
claimant. Assume further this individual, from an exertional standpoint, can
perform light work. Assume further this individual has a moderate bilateral
hearing loss but has hearing aids and can understand conversational speech.

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Would that compromise the ability to perform and – yeah, go ahead. Does that
compromise the ability to perform those jobs?
A: No, sir.
Q: So such a person could perform the jobs of a general office clerk of
grocery check?
A: Yes, sir.
Q: For the second hypothetical, assume this individual would need to work in
a controlled environment in which they are not exposed to dust, fumes, or
smoke in concentrated amounts or temperature extremes. Would that
compromise the ability to perform those jobs?
A: No, sir. …
(Tr. 232-233).
After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical questions 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 her from performing her
past relevant work of general office clerk and grocery checker. 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 Court finds substantial

evidence supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision
is hereby affirmed. The Plaintiff’s Complaint should be, and is hereby, dismissed with
prejudice.
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IT IS SO ORDERED this 4th day of December, 2015.

/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE

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