Smith v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on June 13, 2017. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CLINTON R. SMITH
CIVIL NO. 16-3031
NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration
Plaintiff, Clinton R. Smith, 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) 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).
Plaintiff protectively filed his current application for DIB on May 23, 2013, alleging
an inability to work since December 1, 2009, 2 due to lower back pain, neck pain, shoulder
pain, leg pain and depression. (Doc. 9, pp. 105, 183). For DIB purposes, Plaintiff maintained
insured status through December 31, 2013. (Doc. 9, pp. 12, 190). An administrative hearing
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.
Plaintiff, through his counsel, amended his alleged onset date to June 1, 2012. (Doc. 9, pp. 12, 51).
was held on July 1, 2014, at which Plaintiff appeared with counsel and testified. (Doc. 9, pp.
By written decision dated December 3, 2014, the ALJ found that prior to the expiration
of his insured status Plaintiff had an impairment or combination of impairments that were
severe. (Doc. 9. p. 14). Specifically, the ALJ found Plaintiff had the following severe
impairments: disorder of bilateral shoulders, disorder of the cervical spine, and personality
disorder not otherwise specified. However, after reviewing all of the evidence presented, the
ALJ determined that through the date last insured, 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, pp. 14-15). The ALJ found that through the date last
insured Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) except he was limited to
occasional overhead reaching bilaterally; and occasional climbing of ramps,
stairs, ladders, ropes, and scaffolds, occasional handling, fingering, feeling,
pushing, and pulling with bilateral upper extremities. The claimant was limited
to work involving simple, routine, and repetitive tasks, involving only simple,
work-related decisions, with few, if any, workplace changes, and no more than
incidental contact with co-workers, supervisors, and the general public.
(Doc. 9, p. 16). With the help of a vocational expert, the ALJ determined that through the date
last insured, Plaintiff could perform work as a blending tank tender, a laminating machine offbearer, and a fruit distributer. (Doc. 9, pp. 22-23).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on February 23, 2016. (Doc. 9, p. 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.
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 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 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.
Plaintiff argues the following issues on appeal: 1) the ALJ erred in determining
Plaintiff’s severe impairments; and 2) the ALJ erred in determining Plaintiff’s RFC.
Insured Status and Relevant Time Period:
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 December 31, 2013. 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 June 1, 2012, his amended alleged
onset date of disability, through December 31, 2013, the last date he was in insured status under
Title II of the Act.
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).
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
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.
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
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
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 during the time period in question, Plaintiff reported that he was able to
take care of his personal needs, noting difficulty with bending over to tie his shoes and to put
on pants; to prepare simple meals for him and his disabled wife; to drive; to pay bills; and to
shop for groceries.
With respect to Plaintiff’s physical impairments, the record revealed that while he did
have pain, Plaintiff repeatedly reported to Dr. Ronald Tilley that he was able to perform
activities of daily living when he was taking his pain medication. In August of 2013, Plaintiff
also reported to Dr. Tilley that overall he was doing well with his pain. Dr. Tilley advised
Plaintiff to maintain an active lifestyle and to avoid bed rest.
With regard to Plaintiff’s alleged mental impairments, the record failed to demonstrate
that Plaintiff sought on-going and consistent treatment from a mental health professional
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). The record revealed that Plaintiff denied any
underlying depression numerous times throughout the time period in question. (Doc. 9, pp.
335, 338, 369).
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
Therefore, although it is clear that Plaintiff suffers 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.
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 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 finding Plaintiff able to perform light work with limitations, the ALJ considered
Plaintiff’s subjective complaints, the medical records, and the evaluations of the nonexamining 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 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). In fact, Dr. Tilley repeatedly advised Plaintiff to maintain
an active lifestyle. 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 prior to the date last insured Plaintiff's impairments did not preclude him from
performing work as a blending tank tender, a laminating machine off-bearer, and a fruit
distributer. 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 13th day of June 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?