Hutson v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on May 4, 2017. (tg)

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

LARRY E. HUTSON

v.

PLAINTIFF

CIVIL NO. 16-3014

NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Larry E. Hutson, 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:
The applications for DIB and SSI presently before this Court were protectively filed on

November 8, 2010, alleging an inability to work since July 7, 2010, due to a back injury, a
neck injury, a leg injury, and arthritis in the hands. (Tr. 62, 239). An administrative hearing

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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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was held on December 15, 2011. (Tr. 251-287). Plaintiff was present and represented by
counsel.
In a written decision dated February 22, 2012, the ALJ determined that Plaintiff
retained the residual functional capacity (RFC) to perform light work with limitations. (Tr. 919). The Appeals Council declined review of the ALJ’s decision on January 18, 2013. (Tr. 35). For DIB purposes, Plaintiff maintained insured status through December 31, 2015. (Tr.
50).
Plaintiff appealed this decision in federal district court. This Court remanded Plaintiff's
case back to the Commissioner to obtain additional evidence. (Tr. 291). The Appeals Council
vacated the ALJ's decision and remanded Plaintiff's case back to the ALJ on August 4, 2014.
(Tr. 321-322). At that time, the Appeals Council merged Plaintiff’s subsequent claims for DIB
and SSI filed on February 3, 2014, 2 with the applications currently before this Court. (Tr. 291).
A supplemental hearing was held on July 29, 2015. (Tr. 757-796). Plaintiff was represented
and testified at this hearing.
By written decision dated October 28, 2015, the ALJ found that Plaintiff has an
impairment or combination of impairments that are severe. (Tr. 293). Specifically, the ALJ
found Plaintiff had the following severe impairments: degenerative disc disease, hypertension,
obesity, a disorder of the left rotator cuff, and male organ dysfunction. (Tr. 293). However,
after reviewing all of the evidence presented, he determined that Plaintiff’s impairments do not
meet or equal the level of severity of any impairment listed in the Listing of Impairments found

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Plaintiff alleged chronic pain syndrome, entire spine from neck to lower back pain, sciatic pain, headaches, a
mood disorder, erectile dysfunction, high blood pressure, high cholesterol and low testosterone in the February
of 2014, applications for benefits. (Tr. 336).

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in Appendix I, Subpart P, Regulation No. 4. (Tr. 293). The ALJ found Plaintiff retained the
RFC to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
occasionally stoop, crouch, crawl; occasionally push/pull with left nondominant upper extremity; occasionally reach overhead with left non-dominant
upper extremity; and frequent climbing, balancing, and kneeling.
(Tr. 294). With the help of a vocational expert, the ALJ found Plaintiff could perform work as
a blending tank tender helper, a dealer account investigator, and a furniture rental clerk. (Tr.
298-299).
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. 10, 12).
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
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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).
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.

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III.

Discussion:
Plaintiff argues the following issue on appeal: 1) the ALJ failed to fully and fairly

develop the record; 2) the ALJ erred in determining Plaintiff’s severe impairments; and 3) the
ALJ erred in determining Plaintiff’s RFC.
A.

Full and Fair Development of the Record:

The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47
F.3d 935, 938 (8th Cir.1995). The ALJ's duty to fully and fairly develop the record is
independent of Plaintiff's burden to press his case. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th
Cir. 2010). The ALJ, however, is not required to function as Plaintiff's substitute counsel, but
only to develop a reasonably complete record. “Reversal due to failure to develop the record
is only warranted where such failure is unfair or prejudicial.” Shannon v. Chater, 54 F.3d 484,
488 (8th Cir. 1995). “While an ALJ does have a duty to develop the record, this duty is not
never-ending and an ALJ is not required to disprove every possible impairment.” McCoy v.
Astrue, 648 F.3d 605, 612 (8th Cir. 2011).
In this case, the record consists of physical RFC assessments completed by nonexamining and examining medical consultants; a consultative physical evaluation; and
Plaintiff’s medical records. After reviewing the entire record, the Court finds the record before
the ALJ contained the evidence required to make a full and informed decision regarding
Plaintiff’s capabilities during the relevant time period. Accordingly, the undersigned finds the
ALJ fully and fairly developed the record.
B.

Plaintiff’s Impairments:

At Step Two of the sequential analysis, the ALJ is required to determine whether a
claimant's impairments are severe. See 20 C .F.R. § 404.1520(c). While “severity is not an
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onerous requirement for the claimant to meet…it is also not a toothless standard.” Wright v.
Colvin, 789 F.3d 847, 855 (8th Cir. 2015) (citations omitted). To be severe, an impairment
only needs to have more than a minimal impact on a claimant's ability to perform work-related
activities. See Social Security Ruling 96-3p. The claimant has the burden of proof of showing
he suffers from a medically-severe impairment at Step Two. See Mittlestedt v. Apfel, 204
F.3d 847, 852 (8th Cir.2000).
While the ALJ did not find all of Plaintiff’s alleged impairments to be severe
impairments during the time period in question, the ALJ stated that he considered all of
Plaintiff’s impairments, including the impairments that were found to be non-severe. See
Swartz v. Barnhart, 188 F. App'x 361, 368 (6th Cir. 2006) (where 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 particular impairment as “severe” at step two is harmless);
Elmore v. Astrue, 2012 WL 1085487 *12 (E.D. Mo. March 5, 2012); see also 20 C.F.R. §
416.945(a)(2) (in assessing RFC, 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”). The
Court finds the ALJ did not commit reversible error in setting forth Plaintiff’s severe
impairments during the relevant time period.
C.

Subjective Complaints and Symptom Evaluation:

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

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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, 314 F.3d
at 966.
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 revealed that in a Function Report completed on March 30, 2014, Plaintiff indicated
that he was able to take care of his personal needs, noting that his wife helped with shoes, socks
and showering; that he could prepare simple meals; that he could do light cleaning and laundry;
that he could drive; that he could shop for groceries for about an hour; that he could pay bills;
that could watch television; and that he tried to do go church on Sunday. (Tr. 344-351). The
record further revealed that Plaintiff experienced an increase in pain in May of 2014 after
lifting heavy boxes because he was moving; that his pain medication was stolen from his
unlocked car while he was fishing in April of 2015; and that he had fallen off his roof in May
of 2015. (Tr. 569, 747, 750).
With regard to Plaintiff’s alleged degenerative disc disease of the spine and shoulder
pain, the ALJ found that while Plaintiff may indeed have some limitations, the evidence did
not support a finding of disability. A review of the evidence reveals that Plaintiff’s pain
responded well to medication. Brace v. Astrue, 578 F.3d 882, 885 (8th Cir. 2009) (“If an
impairment can be controlled by treatment or medication, it cannot be considered

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disabling.”)(citations omitted). Thus, while Plaintiff may indeed experience some degree of
pain due to his degenerative disc disease and shoulder pain, the Court finds substantial
evidence of record supporting the ALJ's finding that Plaintiff does not have a disabling back
or shoulder impairment. See Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997) (upholding
ALJ's determination that claimant was not disabled even though she had in fact sustained a
back injury and suffered some degree of pain).
Regarding Plaintiff’s mental functioning, the record showed Plaintiff sought very little
treatment for these alleged impairments. 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). Based on the record as a whole, the
Court finds substantial evidence to support the ALJ’s determination that Plaintiff does not have
a disabling mental impairment.
The Court would note that while Plaintiff alleged an inability to seek treatment due to
a lack of finances, the record is void of any indication that Plaintiff had been denied treatment
due to the lack of funds. Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding
that lack of evidence that plaintiff sought low-cost medical treatment from her doctor, clinics,
or hospitals does not support plaintiff’s contention of financial hardship). It is noteworthy, that
Plaintiff was able to come up with the funds to purchase cigarettes throughout the relevant time
period.
With regard to the statements by Plaintiff’s daughters and son-in-law, the ALJ properly
considered this evidence but found it unpersuasive. This determination was within the ALJ's

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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.

ALJ’s RFC Determination and Medical Opinions:

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 light work with limitations during the time
period in question. The Court notes that in determining Plaintiff’s RFC, the ALJ discussed the

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medical opinions of examining and non-examining medical professionals, including the
opinions of Drs. James Hawk, Terry Hansen, Ronald Tilley, 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). The ALJ also took Plaintiff’s obesity into
account when determining that Plaintiff could perform light work with limitations. Heino v.
Astrue, 578 F.3d 873, 881-882 (8th Cir. 2009) (when an ALJ references the claimant's obesity
during the claim evaluation process, such review may be sufficient to avoid reversal). After
reviewing the entire transcript, the Court finds substantial evidence supporting the ALJ’s RFC
determination for the time periods 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
blending tank tender helper, a dealer account investigator, and a furniture rental 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).

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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 4th day of May, 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE

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