Greer v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 18, 2016. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JAMES E. GREER

PLAINTIFF

V.

NO. 14-3122

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

DEFENDANT

MEMORANDUM OPINION
Plaintiff, James E. Greer, 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) 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 filed his current applications for DIB and SSI on April 2, 2012, alleging an

inability to work since March 13, 2012, due to his back, neuropathy, arthritis, heat
exhaustion, and vision. (Tr. 205-211, 465, 469). An administrative hearing was held on July
11, 2013, at which Plaintiff appeared with counsel, and he and his wife testified. (Tr. 99139).
By written decision dated December 16, 2013, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe –
degenerative joint disease, obesity, bilateral carpal tunnel syndrome, chronic obstructive
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pulmonary disease, and status-post multiple heat exhaustion episodes. (Tr. 86). 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. 88). 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). He is able to
frequently perform handling and fingering. He is to avoid even moderate exposure to
fumes, odors, dusts, gases, poor ventilation, and similar environments. He is to avoid
extreme heat. He is limited to work involving simple, routine, and repetitive tasks
involving only simple, work-related decision [sic], with few, if any workplace
changes, and no more than incidental contact with co-workers, supervisors, and the
general public.
(Tr. 88). With the help of the vocational expert (VE), the ALJ determined that during the relevant
time period, Plaintiff would not be able to perform his past relevant work, but there would be other
jobs Plaintiff would be able to perform, such as poultry production; production line assembler; and
sewing machine operator. (Tr. 92-93).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
considered additional information and denied that request on October 27, 2014. (Tr.1-4).
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

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(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)(D). A Plaintiff must show that his disability, not simply his
impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require him 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 his claim; (2) whether the claimant had a severe
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physical and/or mental impairment or combination of impairments; (3) whether the
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 his 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 his RFC.

See McCoy v.

Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §416.920, abrogated on other
grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. § 404.1520;
§416.920.
III.

Discussion:
Plaintiff raises the following issues in this matter: 1) Whether the ALJ erred in

determining Plaintiff’s severe impairments; 2) Whether the ALJ erred in his RFC
determination; and 3) Whether the new evidence presented to the Appeals Council required
remand of the case. (Doc. 9).
A. Severe Impairments:
Plaintiff argues that the ALJ erred in failing to find Plaintiff’s chronic back
pain/degenerative disc disease a severe impairment at Step 2. While the ALJ did not find
Plaintiff’s back pain was a severe impairment during the relevant time period, he clearly
considered Plaintiff’s back pain, noting that Plaintiff had complained of low back pain for
many years prior to his alleged onset date of disability. (Tr. 91). The ALJ also noted that the
MRI of Plaintiff’s low back showed only minor degenerative changes, and that there was
nothing his treating physician thought required orthopedic intervention. Finally, the ALJ
noted that Plaintiff had been treated conservatively for many years with prescribed non4

steroidal anti-inflammatory medications. (Tr. 91). Where the 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 a particular impairment as “severe” at step two is harmless. Swartz
v. Barnhart, 188 F3d. Appx. 361, 388 (6th Cir. 2006); Elmore v. Astrue 2012 WL 1085487 at
*12 (E.D. Mo. Mar. 5, 2012); see also 20 C.F.R. §416.945(a)(2)((in assessing RFC, the 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, even if the ALJ erred in failing to
determine Plaintiff’s back pain was severe at Step 2, it is not reversible error.
B. Credibility Analysis:
With respect to the ALJ’s 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 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.

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C. RFC Determination:
Plaintiff argues that the ALJ’s RFC determination does not provide appropriate
limitations, given Plaintiff’s left shoulder pain and carpal tunnel syndrome. 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. “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 13-4087-MWB, 2015 WL 1510159 at *15 (quoting
from Willms v. Colvin, Civil No. 12-2871, 2013 WL 6230346 (D. Minn. Dec. 2, 2013).
The ALJ noted that x-rays of Plaintiff’s hands in 2010 showed degenerative
osteoarthritis changes and that nerve conduction studies performed in July of 2011 showed
right carpal tunnel syndrome with sensory neuropathy. (Tr. 90). The ALJ further reported
that Plaintiff received a steroid injection in the carpal canal in July of 2011, with reported
relief of his symptoms, and that Plaintiff stated he did not want to have surgery. (Tr. 90, 549,
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551). On May 24, 2013, Plaintiff saw Dr. Merwin Moore for his right carpal tunnel
syndrome, and underwent a regional block in his clinic. (Tr. 779). The ALJ concluded that
Plaintiff’s carpal tunnel syndrome was treated successfully with steroid injections and only
recently underwent release on the right hands. (Tr. 91).
The Court finds it noteworthy that in a May 10, 2012, Medical Exam Report for
Commercial Drive Fitness Determination, Plaintiff indicated he had “no limitations” and the
doctor completing the form indicated Plaintiff “meets standards, but periodic evaluation
required” due to blood pressure. (Tr. 647, 649). Nothing was noted regarding limitations with
Plaintiff’s shoulder or from carpal tunnel syndrome.
On June 12, 2012, non-examining physician, Dr. Karmen Hopkins, completed a
physical RFC Assessment, wherein she found inter alia, that no manipulative limitations
were established. (Tr. 611). On October 1, 2012, Plaintiff reported that he drove, shopped,
hunted three to four times a year if he could ride his 4-wheeler, fished one to two times a year
and had to be able to sit often, and performed gunsmithing, as long as he could work sitting.1
(Tr. 493-494). On November 2, 2012, Dr. Clarence Ballard affirmed Dr. Hopkins’ decision.
(Tr. 668). On May 24, 2013, Dr. Merwin Moore noted that Plaintiff reported he “had
numbness for years.” (Tr. 779). However, Plaintiff was able to perform medium work for
several years.
The Court believes the evidence does not establish that Plaintiff’s shoulder pain and
carpal tunnel syndrome resulted in functional limitations lasting or expecting to last a
duration of twelve months, beyond the functional limitations restricting Plaintiff to the range
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The Court notes that at the hearing held on July 11, 2013, Plaintiff testified that he had to stop the
gunsmithing, although he continued to fill in for the gunsmith boss when he needed to go places. (Tr. 108).

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of the ALJ’s RFC determination, and that there is substantial evidence to support the ALJ’s
RFC determination.
D. New Evidence Submitted to Appeals Council:
Plaintiff argues that the Appeals Council failed to remand the case once it received
the medical evidence from September 2014. Subsequent to the ALJ’s decision dated
December 16, 2013, Plaintiff submitted numerous medical records, dated August 8, 2014,
through September 5, 2014, from Baxter Regional Medical Center, and dated September 4,
2014 through September 29, 2014, from White River Medical Center. The Appeals Council
looked at the records, and concluded that the new information was about a later time. (Tr. 2).
Therefore, the Appeals Council found the subsequent records did not affect the decision
about whether Plaintiff was disabled beginning on or before December 16. 2013. (Tr. 2).
The new records submitted to the Appeals Council relate to the fact that Plaintiff
apparently suffered a stroke, at least eight months after the ALJ’s decision. “[T]he Appeals
Council must consider evidence submitted with a request for review ‘if the additional
evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the
ALJ’s decision.’” Box v. Shalala, 52 F.3d 168, 171 (8th Cir. 1995)(quoting Williams v.
Sullivan, 905 F.2ds 214, 216-17 (8th Cir. 1990). “An implicit requirement is that the new
evidence pertain to the time period for which benefits are sought, and that it not concern later
acquired disabilities or subsequent deterioration of a previously non-disabling condition.”
Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997). In addition, “[a]dditional evidence
showing a deterioration in a claimant's condition significantly after the date of the
Commissioner's final decision is not a material basis for remand, although it may be grounds

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for a new application for benefits.” Id. Plaintiff’s stroke involved a series of incidents
occurring some eight months after the ALJ’s decision. Accordingly, the Court finds the new
evidence does not warrant a remand.
E. Hypothetical Question to VE:
After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court also finds that the hypothetical questions the ALJ posed to the VE 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 such
jobs in poultry production, production line assembler, and sewing machine operator. 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.
IT IS SO ORDERED this 18th day of February, 2016.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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