Johnson v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 10, 2017. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

WESLEY O. JOHNSON

v.

PLAINTIFF

CIVIL NO. 16-3002

NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Wesley O. Johnson, 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 claim for a period of disability and disability insurance benefits
(DIB) under the provisions of Title II 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 application for DIB on April 26, 2010, alleging

an inability to work since May 15, 2008, due to cirrhosis of the liver, a calcaneous fracture,
anxiety, and depression. (Tr. 14, 190). An administrative hearing was held on January 25,
2011, at which Plaintiff appeared with counsel and testified. (Tr. 27-82).

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Nancy A. Berryhill, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.

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By written decision dated September 4, 2014, the ALJ found Plaintiff was not disabled
prior to February 1, 2010, but that Plaintiff became disabled on February 1, 2010, and remained
disabled through the date of the decision. (Tr. 14). Specifically, the ALJ found that since May
15, 2008, Plaintiff had the following severe impairments: a history of a right calcaneal fracture
status post open reduction and internal fixation; hepatic cirrhosis; major depressive disorder;
anxiety disorder, not otherwise specified (NOS); and polysubstance abuse/dependence
(alcohol and marijuana). (Tr. 16). However, after reviewing all of the evidence presented, the
ALJ determined that since May 15, 2008, 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 that since May 15, 2008, Plaintiff
retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant
could not climb, kneel, crouch, crawl or push/pull with his right lower
extremity. He could not operate foot controls with his right lower extremity. He
could occasionally balance and stoop. The claimant had to avoid exposure to
extreme cold and also avoid concentrated exposure to humidity and hazards
including no driving as part of work. He was able to perform simple, routine,
repetitive tasks with incidental interpersonal contact and simple, direct and
concrete supervision.
(Tr. 20). With the help of a vocational expert, the ALJ found Plaintiff was not disabled prior
to February 1, 2010, as he was able to perform work as a an inspector/checker of dowels, a
semi-conductor bonder, and a lamp shade assembler. (Tr. 25).
Plaintiff then requested a review of the hearing decision by the Appeals Council which
denied that request on November 9, 2015. (Tr. 5). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 9, 10).

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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. 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.
III.

Discussion:
Plaintiff argues the following issue on appeal: 1) the ALJ erred in failing to consider

Plaintiff’s mental impairments during the relevant time period and failed to consider them in
combination with Plaintiff’s physical impairments.
A.

Combination of Impairments:

Plaintiff argues that the ALJ erred in failing to consider all of the claimant’s
impairments in combination.
The ALJ stated that in determining Plaintiff’s RFC he considered “all of the claimant’s
impairments, including impairments that are not severe.” (Tr. 15). The ALJ further found that
Plaintiff did not have an impairment or combination of impairments that met or medically
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equaled one of the listed impairments prior to February 1, 2010. (Tr. 16-17). Such language
demonstrates the ALJ considered the combined effect of Plaintiff’s impairments. Hajek v.
Shalala, 30 F.3d 89, 92 (8th Cir. 1994).
B.

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 for the time
period in question. As for Plaintiff’s alleged depression and anxiety, there is no medical
evidence of record revealing that Plaintiff sought on-going and consistent treatment for his
alleged depression and anxiety during the relevant time period. 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). After reviewing the

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evidence of record, the Court finds substantial evidence to support the ALJ’s finding that
during the relevant time period Plaintiff did not have a disabling mental impairment.
Therefore, although it is clear that Plaintiff suffered with some degree of limitation, he
has not established that he was unable to engage in any gainful activity during the time period
in question. Accordingly, the Court concludes that substantial evidence supports the ALJ’s
conclusion that Plaintiff’s subjective complaints were not totally credible.
C.

ALJ’s 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 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.
In the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and his medical
records when he determined Plaintiff could perform sedentary work with limitations during
the time period in question. The Court notes that in determining Plaintiff’s RFC, the ALJ
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discussed the medical opinions of examining and non-examining medical professionals, and
set forth the reasons for the weight given to the opinions. Renstrom v. Astrue, 680 F.3d 1057,
1065 (8th Cir. 2012) (“It is the ALJ’s function to resolve conflicts among the opinions of
various treating and examining physicians”)(citations omitted); Prosch v. Apfel, 201 F.3d 1010
at 1012 (the ALJ may reject the conclusions of any medical expert, whether hired by the
claimant or the government, if they are inconsistent with the record as a whole). Based on the
record as a whole, the Court finds substantial evidence to support the ALJ’s RFC
determination.
D.

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 an
inspector/checker of dowels, a semi-conductor bonder, and a lamp shade assembler prior to
February 1, 2010. 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

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should be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be
dismissed with prejudice.
DATED this 10th day of March, 2017.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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