Ivey v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 9, 2016. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
CHARLES N. IVEY

PLAINTIFF

v.

NO. 15-3015

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Charles N. Ivey, 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 February 22,

2012, alleging an inability to work since August 1, 2006, due to blood pressure problems,
chronic obstructive pulmonary disease COPD), and severe nose bleeds. (Tr. 153, 160, 198).
For DIB purposes, Plaintiff maintained insured status through September 30, 2008. (Tr. 9,
172). An administrative hearing was held on June 14, 2013, at which Plaintiff appeared with
counsel and testified. (Tr. 26-85).

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By written decision dated November 12, 2013, the ALJ found that Plaintiff engaged in
substantial gainful activity from September of 2010, through April of 2011. (Tr. 11). The ALJ
further found that there have been continuous 12-month periods during which Plaintiff did not
engage in substantial gainful activity. The ALJ found that the following findings address the
periods Plaintiff did not engage in substantial gainful activity since his alleged onset date of
disability. The ALJ found that during the relevant time period, Plaintiff had an impairment or
combination of impairments that were severe. (Tr. 12). Specifically, the ALJ found Plaintiff
had the following severe impairments: hypertension, COPD, a history of non-displaced rib
fractures, and a depressive disorder not otherwise specified. 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. 12). 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
he must avoid even moderate exposure to fumes, odors, dusts, gases, and poor
ventilation. He is further limited to simple, routine, repetitive tasks performed
in an environment where interpersonal contact is only incidental to the work
performed and the supervision required is simple, direct, and concrete.
(Tr. 13). With the help of a vocational expert, the ALJ determined Plaintiff could perform
work as a hand packager, and an inspector. (Tr. 20).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on January 23, 2015. (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. 12, 13).

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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 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).

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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 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), 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 argues the following issues on appeal: 1) the ALJ failed in determining

Plaintiff’s credibility; and 2) the ALJ erred in failing to find that Plaintiff met Listing 3.02(A)
A.

Insured Status and Relevant Time Periods:

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 September 30, 2008. 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 August 1, 2006, his alleged onset date
of disability, through September 30, 2008, the last date he was in insured status under Title II
of the Act.
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In order for Plaintiff to qualify for DIB he must prove that, on or before the expiration
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).
With respect to Plaintiff’s SSI application, benefits are not payable prior to the date of
application, regardless of how far back disability may, in fact, be alleged or found to extend.
See 20 C.F.R. § 416.335. Therefore, the relevant period is from February 22, 2012, the date
Plaintiff protectively applied for SSI benefits, through November 12, 2013, the date of the
ALJ’s decision.
B.

Evaluation of the Listed Impairment 3.02:

The burden of proof is on the Plaintiff to establish that his impairment meets or equals
a listing. See Sullivan v. Zebley, 493 U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).
To meet a listing, an impairment must meet all of the listing's specified criteria. Id. at 530, 110
S.Ct. 885 (“An impairment that manifests only some of these criteria, no matter how severely,
does not qualify.”); Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “Medical
equivalence must be based on medical findings.” 20 C.F.R. § 416.926(b) (2003); Sullivan, 493
U.S. at 531 (“a claimant ... must present medical findings equal in severity to all the criteria
for the one most similar listed impairment”). In this case, the ALJ found the medical evidence
does not show medical findings that are the same or equivalent to a listed impairment.
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The Court finds, based upon the record as a whole Plaintiff’s argument is without merit,
and there was sufficient evidence for the ALJ to make an informed decision. Accordingly, the
Court finds there is sufficient evidence to support the ALJ’s determination that Plaintiff’s
impairments do not medically equal a Listing.
C.

Subjective Complaints and Credibility Analysis:

We now address the ALJ's assessment of Plaintiff's subjective complaints. 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, 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 performed substantial gainful activity from September of 2010,
through April 30, 2011. (Tr. 181-182, 189). The record also reveals that during the relevant
time period, Plaintiff reported that he was able to take care of his personal hygiene, shop for
short periods of time, drive short distances, pay bills with his wife, perform some household

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chores, watch television, attend monthly volunteer fire department meetings, use the computer,
and spend time with his family and neighbors.
With respect to Plaintiff’s hypertension, the record reveals that while Plaintiff did have
some difficulty off and on with prescribed medication, the medical evidence shows Plaintiff’s
blood pressure problem worsened after he consumed mixed drinks and when Plaintiff did not
take his medication as prescribed. In February of 2012, Plaintiff’s treating physician noted
that while Plaintiff reported that he could not afford his medication, when asked to discontinue
the use of alcohol and drugs in favor of blood pressure medication, Plaintiff refused and stated
that “he full well knows all the risks.” (Tr. 291). Plaintiff was notified that he could die or
suffer a debilitating stroke but still did not want to quit. The Court notes that this failure to
follow a prescribed course of treatment can be a basis to deny disability. Brown v. Barnhart,
390 F.3d 535, 540-541 (8th Cir. 2004)(citations omitted)(“Failure to follow a prescribed course
of remedial treatment without good reason is grounds for denying an application for benefits.”),
20 C.F.R. § 416.930(b).
As for Plaintiff’s alleged disabling COPD, as noted above, Plaintiff’s medical providers
repeatedly recommended that Plaintiff stop smoking and despite these recommendations,
Plaintiff continued to smoke throughout the relevant time period. See Kisling v. Chater, 105
F.3d 1255, 1257 (8th Cir.1997) (noting that a failure to follow prescribed treatment may be
grounds for denying an application for benefits). This is not a case in which the correlation
between Plaintiff's smoking and Plaintiff’s impairment is not readily apparent. Mouser v.
Astrue, 545 F.3d 634, 638 (8th Cir. 2008) (citations omitted). To the contrary, there is no
dispute that smoking has a direct impact on Plaintiff’s pulmonary impairments. Thus, the ALJ

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appropriately considered Plaintiff's failure to stop smoking in making his credibility
determination. Id.
With respect to Plaintiff’s alleged mental impairments, the record fails to establish that
Plaintiff sought on-going and consistent treatment from a mental health provider. See Gowell
v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (holding that lack of evidence of ongoing
counseling or psychiatric treatment for depression weighs against plaintiff’s claim of
disability).

While Plaintiff may have some limitations due to his mental impairments, the

Court finds substantial evidence to support the ALJ’s determination that Plaintiff does not have
disabling mental impairments.
With regard to the testimony of Plaintiff’s wife, 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 not established that he 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.
D.

RFC Assessment:

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

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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 finding Plaintiff able to perform light work with limitations, the ALJ considered
Plaintiff’s subjective complaints, the medical records of his treating and examining physicians,
and the evaluations of the 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 his activities that would preclude him 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.
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 as a hand

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packager, and an inspector. 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 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 9th day of June, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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