Boleman v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on December 23, 2015. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
REBECCA JO BOLEMAN
CIVIL NO. 14-3130
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Rebecca Jo Boleman, 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)
benefits 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).
Plaintiff protectively filed her current application for SSI on December 7, 2011,
alleging an inability to work due to cirrhosis, depression, anxiety, ulcers, scoliosis, and
arthritis. (Tr. 167, 211). An administrative hearing was held on January 1, 2013, at which
Plaintiff appeared with counsel and testified. (Tr. 30-57). A supplemental hearing was held on
July 24, 2013. (Tr. 58-65).
By written decision dated September 25, 2013, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.
14). Specifically, the ALJ found Plaintiff had the following severe impairments: alcoholic
cirrhosis, diabetes mellitus, and depression. 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. 14). The ALJ found Plaintiff retained the residual functional capacity
perform sedentary work as defined in 20 CFR 416.967(a) except the claimant
may be required to climb, balance, crawl, kneel, stoop, and crouch on an
occasional basis; the claimant can understand, remember, and carry out simple,
routine, repetitive tasks, and respond to usual work situations and routine work
changes, where the supervision provided is simple, direct, and concrete, and
where there is only occasional interaction with supervisors, co-workers, and the
(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform
work as a surveillance systems monitor, a charge account clerk, and an addressing clerk. (Tr.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on November 25, 2014. (Tr. 1-6). 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. (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.
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 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)(C). 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 has engaged in
substantial gainful activity since filing her 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 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 residual functional capacity. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. § 416.920.
Plaintiff argues the following issues on appeal: 1) the ALJ erred in finding that Plaintiff
did not meet Listing 5.05A; and 2) the ALJ erred in determining that Plaintiff could perform
other work at Step Five. 1
The ALJ must determine whether Plaintiff has a severe impairment that significantly
limits the physical or mental ability to perform basic work activities. A medically determinable
impairment or combination of impairments is severe if it significantly limits an individual's
physical or mental ability to do basic work activities. See 20 C.F.R. § 416.921.
The ALJ found Plaintiff did suffer from impairments considered to be severe within
the meaning of the Social Security regulations. These impairments included alcoholic cirrhosis,
diabetes mellitus, and depression. (Tr. 14). However, there was no substantial evidence in the
record showing Plaintiff's condition was severe enough to meet or equal that of a listed
impairment as set forth in the Listing of Impairments. See 20 C.F.R. pt. 404, subpt. P, app. 1.
Plaintiff has the burden of establishing that her impairment(s) meet or equal an impairment set
out in the Listing of Impairments. See Sullivan v. Zebley, 493 U.S. 521, 530–31 (1990).
Plaintiff has not met this burden.
The Court combined Plaintiff’s second and third argument on appeal.
Plaintiff argues that she meets a Listing under Section 5.05A concerning “chronic liver
disease.” (Doc. 9, pgs. 3-5). Defendant argues Plaintiff has failed to establish she meets this
listing. (Doc. 10, pgs. 5-8).
Impairments found under Listing 5.00 involve digestive system disorders such as
gastrointestinal hemorrhage, hepatic (liver) dysfunction, inflammatory bowel disease, short
bowel syndrome, and malnutrition. See 20 C.F.R. pt. 404, subpt. P, app.1, 5.00A. To meet
Listing 5.05A, Plaintiff must show chronic liver disease accompanied by objective evidence
of hemorrhaging from esophageal, gastric, or ectopic varices or from portal hypertensive
gastropathy requiring hospitalization and a blood transfusion. See 20 C.F.R. pt. 404, subpt. P,
A review of the medical evidence reveals that on November 21, 2011, Plaintiff was
admitted into North Arkansas Regional Medical Center for a gastrointestinal bleed. (Tr. 304350). Plaintiff underwent an esophagogastroduodenoscopy (EGD) which showed esophageal
varices, but they were not the source of Plaintiff’s bleeding and were determined to be nonsevere. (Tr. 304, 337). In December of 2012, Plaintiff underwent an EGD which revealed two
large varices in the distal esophagus without any recent/impending bleeding. (Tr. 450). In
June of 2013, Plaintiff underwent an abdominal ultrasound which did not reveal hemorrhaging.
After reviewing the record, the Court finds substantial evidence supports the ALJ’s
determination that Plaintiff did not have an impairment or combination of impairments equal
to one listed in 20 C.F.R. pt. 404, subpt. P, app.1.
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 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
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, 314 F.3d
After reviewing the administrative record, it is clear that the ALJ properly considered
and evaluated Plaintiff’s subjective complaints, including the Polaski factors. A review of the
record reveals that Plaintiff completed a Function Report on December 29, 2011, indicating
that she was able to take care of her personal needs, to prepare simple meals, to perform
household chores, to watch television, and to talk on the telephone. (Tr. 201-208). In January
of 2012, Plaintiff reported to Dr. Terry L. Efird, a consultative examiner, that she was able to
perform basic self-care tasks independently; to perform household chores adequately, aside
from heavy lifting and excessive bending; to shop independently; to handle personal finances;
and to perform most activities of daily living, aside from heavy lifting and excessive bending.
(Tr. 352-355). The record further revealed Plaintiff’s report to her counselor that she was able
to walk to her neighbor’s house, which was about one mile round trip, three times per week.
The Court finds substantial evidence to support the ALJ’s determination that Plaintiff’s daily
activities were not consistent with an inability to perform substantial gainful activity.
With regard to the testimony of Plaintiff’s friends, 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
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she
has not established that she is unable to engage in any gainful activity. Accordingly, the Court
concludes that substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective
complaints were not totally credible.
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 h[er] RFC.” Id.
In finding Plaintiff able to perform sedentary work with limitations, the ALJ considered
Plaintiff’s subjective complaints, the medical records of her treating and examining physicians,
and the evaluations of the examining and non-examining medical examiners. Plaintiff's
capacity to perform this level of work is supported by the fact that Plaintiff's examining
physicians placed no restrictions on her activities that would preclude performing the RFC
determined during the relevant time period. See Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir.
1999) (lack of physician-imposed restrictions militates against a finding of total disability.
After reviewing the entire transcript, the Court finds substantial evidence supporting the ALJ’s
RFC determination for the time period in question.
Hypothetical Question to the Vocational Expert:
Plaintiff argues that the jobs suggested by the vocational expert - surveillance systems
monitor, a charge account clerk, and an addressing clerk – require a reasoning level of 2 and
3, which she claims exceeds her RFC for:
occupations with unskilled sedentary limitations and involving only simple,
routine, repetitive tasks, and respond to usual work situations and routine work
changes, where the supervision provided is simple, direct, and concrete and
where there is only occasional interaction with supervisors, co-workers and the
(Doc. 9, pgs. 5-6).
According to the Dictionary of Occupational Titles (DOT) the job as addressing clerk
requires a reasoning level of 2; and the jobs of surveillance systems monitor and charge account
clerk require a reasoning level of 3. See DICOT §§§ 209.587-010, 205.367-014, 379.367-010
The DOT defines a reasoning level of two as follows: “Apply
commonsense understanding to carry out detailed but uninvolved written or oral instructions.
Deal with problems involving a few concrete variables in or from standardized situations.”
DOT (4th ed.), App. C, Components of the Definition Trailer, 1991 688702 (Jan. 1, 2008). The
DOT defines a reasoning level of three as follows: “Apply commonsense understanding to
carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems
involving several concrete variables in or from standardized situations.” Id.
It is well established that reasoning level of two and three are not inconsistent with
unskilled work. See Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir.2007) (a reasoning level
of three was not inconsistent with unskilled work). See also Robinson v. Astrue, 2010 WL
481045, at *17–18 (E.D. Mo. Feb. 4, 2010) (reasoning levels of two and three are consistent
with unskilled work and ALJ's RFC limitations of following simple instructions and nondetailed tasks). Moreover, the “DOT itself cautions that its descriptions may not coincide in
every respect with the content of jobs as performed in particular establishments or at certain
localities.” Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000). “In other words, not all of the
jobs in every category have requirements identical to or as rigorous as those listed in the DOT.”
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. 2 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 work as a
surveillance systems monitor, a charge account clerk, and an addressing clerk. 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 23rd day of December, 2015.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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