Royer v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on May 30, 2017. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
ELAINE R. ROYER
CIVIL NO. 16-3023
NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration
Plaintiff, Elaine R. Royer, 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 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).
Plaintiff protectively filed her current applications for DIB and SSI on October 9, 2012,
and October 22, 2012, respectively, alleging an inability to work since August 23, 2012, due
to a head trauma, fractures in the legs and arms, a hand fracture, and left eye blindness. 2 (Doc.
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.
The Court notes the ALJ found Plaintiff’s alleged onset date to be August 28, 2012. (Doc. 9, p. 32).
9, pp. 112, 240, 248, 290). An administrative hearing was held on May 19, 2014, at which
Plaintiff appeared with counsel and testified. (Doc. 9, pp. 51-109).
By written decision dated October 20, 2014, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Doc.
9, p. 34). Specifically, the ALJ found Plaintiff had the following severe impairments: fractures
of the left arm and left foot, a visual defect, a head injury, and an affective disorder. 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. (Doc. 9, p. 35). 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
she can only occasionally finger with her non-dominant left hand and perform
only occasional overhead work with her non-dominant left upper extremity. In
addition, she can occasionally climb, balance, stoop, kneel, crouch, and crawl.
She is further limited and can perform only simple, routine and repetitive tasks
in a setting where interpersonal contact is incidental to the work performed.
She can respond to supervision that is simple, direct and concrete.
(Doc. 9, p. 37). With the help of a vocational expert, the ALJ determined Plaintiff could
perform work as power screwdriver operator, a warehouse clerk, and a blending tank tender.
(Doc. 9, p. 43).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence submitted by Plaintiff denied that request on January 12,
2016. (Doc. 9, pp. 5-11). 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. 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.
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).
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. §§ 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 her 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.
Plaintiff argues the ALJ erred in determining Plaintiff’s RFC. Defendant argues that
substantial evidence supports the ALJ’s decision.
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 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 during the time period in question Plaintiff was able to take care of her
personal needs, do light housekeeping, drive for short distances during the day, shop for
groceries, prepare simple meals, and spend time with her family. The record revealed that in
September of 2014, Plaintiff sought treatment for abscessed insect bites that she first noticed
when she was camping.
With respect to Plaintiff’s physical limitations, the record reveals that Plaintiff
underwent the surgical repair of her left arm and foot after falling off a bluff in August of 2012.
The medical evidence indicated that Plaintiff underwent a second surgical repair in her left
upper extremity in October of 2012.
After continuing to experience left wrist pain in
November and December of 2012, Plaintiff’s surgeon Dr. Troy H. Caron, limited Plaintiff from
doing “any lifting with her left arm yet.” (Doc. 9, p. 554). At that time, Plaintiff was instructed
to return in four weeks for a re-evaluation. The record failed to show that Plaintiff returned to
see Dr. Caron.
On May 14, 2013, Plaintiff underwent a consultative general physical
examination. (Doc. 9, p. 532). Plaintiff was found to have normal range of motion of the upper
and lower extremities with the exception of a ten percent decrease in her dorsiflexion of the
right ankle. Plaintiff exhibited a normal gait. During this evaluation, Plaintiff was also able
to pick up a coin bilaterally, to oppose thumb to fingers and to touch her fingertips to her palm.
Plaintiff’s grip was noted as being 100% on the right and 80% on the left. The examiner opined
that Plaintiff would have mild to moderate limitation with lifting and fingering with her left
hand. Plaintiff complained of pain after moving boxes in October of 2013, but the record is
void of any subsequent medical treatment, with the exception of treatment for abscessed insect
bites while camping, during the relevant time period.
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
With regard to the testimony of Plaintiff’s adult children and a letter from a friend, 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, 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.
The 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 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 determining that Plaintiff maintained the RFC to perform light work with limitations,
the ALJ considered the medical assessments of the examining and non-examining agency
medical consultants; Plaintiff’s subjective complaints; and her medical records. The ALJ also
discussed the medical opinions of the examining and non-examining medical professionals,
including the opinion of Drs. Nancy A. Bunting and Jerry Cunningham, 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). 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:
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 her from performing work as a power
screwdriver operator, a warehouse clerk, and a blending tank tender. 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 30th day of May 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE
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