Powers v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 24, 2016. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JASON A. POWERS

PLAINTIFF

V.

NO. 15-3011

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

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Jason A. Powers, 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 August 14, 2013, alleging

an inability to work since August 1, 2012, due to “depression; anxiety; suicidal thoughts,
taking meds and counselling; panic attacks; back pain; arms/legs pain with numbness; ptsd;
stresses to [sic] easily around people or phone; reading and writing disability; was in special
ed; does not do well with changes.” (Tr. 85-86, 216-229, 253). An administrative hearing
was held on November 6, 2014, at which Plaintiff appeared with counsel, and he and his wife
testified. (Tr. 32-84).
By written decision dated December 10, 2014, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe –
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bilateral carpal tunnel syndrome status post release on the left; degenerative disk disease of
the lumbar spine; plantar fasciitis of the right lower extremity; depression; and anxiety. (Tr.
35). 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. 16). 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
that he can frequently, but not repetitively, grasp, handle and finger. He can
do work involving simple tasks and simple instructions with only incidental
contact with the public.
(Tr. 18). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would be unable to perform his past relevant work, but there
were other jobs Plaintiff would be able to perform, such as price marker, plastics molding
machine tender, and hotel housekeeper. (Tr. 25).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which considered additional information, and denied that request on March 12, 2015. (Tr. 14). 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. 12, 13).
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 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). 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). 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 had engaged in
substantial gainful activity since filing his 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 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 RFC. See McCoy
v. Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520; 416.920.
III.

Discussion:
Plaintiff raises the following issues in this matter: 1) Whether the case should be

remanded because the Appeals Council failed to remand the case based on additional
evidence; 2) Whether the ALJ erred in failing to properly consider Plaintiff’s mental
impairments in his RFC; and 3) Whether the ALJ erred in his credibility analysis. (Doc. 12).
A. Additional Evidence before the Appeals Council:
The ALJ’s decision is dated December 10, 2014. One week prior to the decision, on
December 3, 2014, Dr. Shannon Brownfield, Plaintiff’s treating physician since April of
2013, completed a Physical Medical Assessment Questionnaire with Manipulation Hands
and Legs Limitations. (Tr. 810). The ALJ did not discuss the questionnaire in his decision,
and the Appeals Council had this questionnaire before it when it denied Plaintiff’s request for
review. (Tr. 2). Plaintiff argues that Dr. Brownfield’s December 2014 capacity assessment
establishes that he is disabled, and that the Appeals Council erred by denying review.
The Appeals Council considered the additional evidence and concluded it did not
provide a basis for changing the ALJ’s decision. (Tr. 2). When the Appeals Council has
considered material new evidence and nonetheless declined review, the ALJ's decision
becomes the final action of the Commissioner. The Court then has no jurisdiction to review
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the Appeals Council's action because it is a nonfinal agency action.

See Browning v.

Sullivan, 958 F.2d 817, 822 (8th Cir.1992). At this point, the Court’s task is only to decide
whether the ALJ's decision is supported by substantial evidence in the record as a whole,
including the new evidence made part of the record by the Appeals Council that was not
before the ALJ. As the United States Court of Appeals for the Eighth Circuit has noted, "this
[is] a peculiar task for a reviewing court." Riley v. Shalala, 18 F.3d 619, 622 (8th Cir.1994).
However, once it is clear that the Appeals Council considered the new evidence, then we
must factor in the evidence and determine whether the ALJ's decision is still supported by
substantial evidence. This requires the Court to speculate on how the ALJ would have
weighed the newly submitted evidence had it been available at the initial hearing. Flynn v.
Chater, 107 F.3d 617, 621 (8th Cir.1997). Thus, the Court has endeavored to perform this
function with respect to the newly submitted evidence.
The Court has reviewed the entire record, and although Dr. Brownfield opined that
Plaintiff had severe limitations, the Court believes that had the ALJ considered Dr.
Brownfield’s opinion, it would not have changed the result and there was substantial
evidence to support his decision.
The Court first notes that at Plaintiff’s visits to Dr. Brownfield in 2014, Dr.
Brownfield diagnosed Plaintiff with: dyspepsia and depression with anxiety (Tr. 651);
pharyngitis (acute)(Tr. 653); GERD, abdominal pain epigastric, BMI 31.0-31.9, ADULT (Tr.
655); GERD, hypogonadism, testicular (Tr. 751); parotitis, NOS, retention of urine,
unspecified (Tr. 753); excoriation, contusion of foot, anxiety disorder, NOS (Tr. 755); and
sinusitis frontal, obstructive sleep apnea. (Tr. 757). None of these 2014 records indicate that
Dr. Brownfield treated Plaintiff for any significant orthopedic problems. In 2013, Dr.

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Bownfield treated Plaintiff’s complaints of back pain with conservative measures. (Tr. 645646). In addition, on February 25, 2014, Dr. Brownfield reported that Plaintiff had normal
range of motion of the cervical spine. (Tr. 655). The Court therefore believes that Dr.
Brownfield’s December 2014 opinion is inconsistent with his previous medical records, and
the ALJ would have been warranted in discounting, or even disregarding Dr. Brownfield’s
opinion. See Knox v. Colvin, No. 14-3891, 2016 WL 362240 at *2 (8th Cir. Jan. 29, 2016)
quoting from Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015).
Based upon the foregoing, the Court finds that had the ALJ considered Dr.
Brownfield’s opinion, it would not have changed the result, and there is substantial evidence
to support the ALJ’s decision.
B. Credibility Analysis:
Plaintiff argues that his normal daily activities do not diminish his credibility and that
the ALJ failed to consider the side effects of Plaintiff’s medication. 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 id.
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).

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In his decision, the ALJ recognized that Plaintiff’s subjective allegations must be
considered, giving careful consideration to the nature, location, onset, duration, frequency,
radiation and intensity of any pain; precipitating and aggravating factors; type, dosage,
effectiveness and adverse side-effects of any pain medications; treatment, other than
medication, for relief of pain; functional restrictions; and daily activities. (Tr.l 19). He also
indicated that any other factors concerning Plaintiff’s functional limitations and restrictions
due to pain or other symptoms were also considered. (Tr. 19).
With respect to daily activities, the ALJ found Plaintiff had mild restrictions. (Tr. 16).
He noted that Plaintiff had no difficulties with personal care, did house and yard work,
shopped for groceries, and drove his daughter to school. (Tr. 16-17, 23). The ALJ also
discussed all of the medical records and objective medical evidence in this case. With respect
to the side effects of medication, Plaintiff argues that the medications made him sleepy and
that the ALJ failed to address this. It is noteworthy that in the Mental Diagnostic Evaluation
conducted by W. Charles Nichols, Psy.D., dated January 13, 2014, Plaintiff reported he was
taking Sertaline and Trazodone, that they had been effective, and denied side effects. (Tr.
623).
Based upon the foregoing, and the record as a whole, the Court finds that there is
substantial evidence to support the ALJ’s credibility analysis.
C. RFC Determination:
Plaintiff argues that the ALJ failed to appropriately consider his mental imapirments,
specifically anxiety, in determining his RFC. 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

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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).
Prior to the relevant time period, Plaintiff underwent a Psychological Screening by
Leslie S. Johnson, MS, and Letitia C. Hitz, Ph.D. (Tr. 368). It was found that Plaintiff would
likely be successful in programmed or mastery learning approaches, and should be allowed
sufficient time and “hands on” experience in a work setting. (Tr. 369). It was also reported
that Plaintiff was generally functioning in the below average to average range of intellectual
and academic ability. (Tr. 370). Plaintiff was diagnosed as follows:
Axis I:

Anxiety Disorder Not Otherwise Specified
Disorder of Written Expression

Axis II:

No diagnosis
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Axis III:

Deferred to Physician

(Tr. 370). Based upon the test results, it was reported that Plaintiff would probably find
college coursework very difficult, and would likely be more successful in skilled training,
such as that available at a vo-tech school. (Tr. 371). The examiners recommended extensive
vocational guidance and counseling, and if Plaintiff was provided those services, it was felt
that he may reasonably be expected to sustain independent functioning by means of
competitive employment. (Tr. 371).
During the summer months of 2013, Plaintiff received counseling at Vista Health.
(Tr. 406, 408, 412-413, 415). On July 25, 2013, Eugenia O’Shea Cottrell, LCSW, reported
that Plaintiff and his wife agreed that Plaintiff needed to be admitted to an inpatient setting.
(Tr. 406). However, Plaintiff decided to receive outpatient counseling from Dr. Thomas
Lawson instead. (Tr. 257, 400).
As stated earlier, on January 13, 2014, Plaintiff underwent a Mental Diagnostic
Evaluation by W. Charles Nichols, Psy.D. (Tr. 622). Dr. Nichols reported there were no signs
of physical discomfort/pain, Plaintiff’s gait was normal, and his seated posture was upright.
(Tr. 624). Dr. Nichols diagnosed Plaintiff as follows:
Axis I:

Dysthymic Disorder, Early Onset
Generalized Anxiety Disorder

Axis II:

no diagnosis

Axis V:

55-60 (Current)

(Tr. 626).
Dr. Nichols reported that Plaintiff: needed minimal to no support in order to complete
his essential daily tasks; had capacity to interact and communicate with others adequately;
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was likely able to complete simple, routine tasks without outside assistance or supervision,
and his concentration was adequate; appeared to possess adequate mental effort and
resources to complete tasks that required sustained mental effort and attention to detail; and
would likely be able to complete simple, routine job-like tasks in a timely manner. (Tr. 626627).
On February 7, 2014, non-examining consultant, Jerry Henderson, Ph.D., completed a
Mental RFC Assessment, finding no indication of marked level limitations, and that Plaintiff
was capable of performing unskilled work. (Tr. 97, 99). This opinion was supported by nonexamining consultant, Dan Donahue, Ph.D. (Tr. 146). Dr. Henderson also completed a
Psychiatric Review Technique Form. (Tr. 95).
In his decision, the ALJ discussed the evaluations performed by the above individuals
(Tr. 20), and gave substantial weight to the opinions of Dr. Hitz and Ms. Johnson, Dr.
Nichols, Dr. Henderson and Dr. Donahue. (Tr. 24). Plaintiff does not point to any specific
medical evidence that the ALJ purportedly omitted or overlooked in his decision, except he
does refer to the examination of “Dr. Brown.” There is no evaluation contained in the record
by a Dr. Brown.
In addition, the ALJ also considered and discussed the comments of Plaintiff’s wife,
daughter and mother-in-law, and concluded that although Plaintiff was limited, he was not
limited to the extent alleged. (Tr. 24). Finally, the ALJ limited Plaintiff to unskilled work,
which is consistent with the medical records.
The Court finds that there is substantial evidence to support the ALJ’s RFC regarding
Plaintiff’s mental impairments.
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D. 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 VE’s opinion constitutes substantial evidence supporting the ALJ's
conclusion that there were jobs Plaintiff would be capable of performing, such as price
marker, plastics molding machine tender, and hotel housekeeper. 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 24th day of May, 2016.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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