Cooper v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on June 21, 2017. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JESSEY B. COOPER
CIVIL NO. 16-3037
NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration
Plaintiff, Jessey B. Cooper, 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 child’s insurance benefits (CIB) as a disabled adult
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 CIB and SSI on June 13, 2013,
alleging an inability to work since June 13, 2013, due to seizures. (Doc. 9, pp. 104, 200, 207).
An administrative hearing was held on July 15, 2014, at which Plaintiff appeared with counsel
and testified. (Doc. 9, pp. 72-102).
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.
By written decision dated November 14, 2014, the ALJ found that Plaintiff had not
attained the age of twenty-two as of the alleged onset date. (Doc. 9, p. 60). The ALJ found
that during the relevant time period, Plaintiff had an impairment or combination of
impairments that were severe. (Doc. 9, pp. 60-61). Specifically, the ALJ found Plaintiff had
the following severe impairments: epilepsy, a history of headaches, obesity, 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. 61).
The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform a full range of work at all exertional levels; however, she has nonexertional limitations. She must avoid hazards such as moving machinery and
unprotected heights. Further, she is limited to simple, routine, and repetitive
tasks in settings where interpersonal contact is incidental to the work
performed. Additionally, the supervision required must be simple, direct, and
(Doc. 9, p. 62). With the help of a vocational expert, the ALJ determined Plaintiff could
perform work as an office clerk, a photo machine copy operator, and a hand packer. (Doc. 9,
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 February 25,
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. 10, 11).
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).
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. To establish entitlement to CIB on the record earnings of an
insured person, a Plaintiff must prove she is 18 years of age or older and suffers from a
disability that began before she reached 22 years of age. 42 U.S.C. § 402(d).
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 following issue on appeal: 1) the ALJ erred in determining
Plaintiff’s RFC as it was made without the input of a treating or examining physician and was
based on the ALJ’s lay opinion of the medical evidence.
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 her 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 a consultative general physical examination
completed by Dr. Nancy A. Bunting; the assessments of four non-examining medical
consultants, Drs. Christal Janssen, Bill F. Payne, Janet Cathy, and Melissa F. Jackson; and
medical records for the time period in question.
Plaintiff argues that the ALJ should have contacted her treating physicians to obtain a
RFC of Plaintiff’s abilities. A RFC assessment from a treating physician, although helpful, is
not required. See Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.2007)(the medical evidence,
State agency physician opinions, and claimant's own testimony were sufficient to assess
residual functional capacity); Stormo v. Barnhart, 377 F.3d 801, 807–08 (8th
Cir.2004)(medical evidence, State agency physicians' assessments, and claimant's reported
activities of daily living supported residual functional capacity assessment). 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.
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 revealed that Plaintiff is able to take care of her personal needs, noting that she is not
allowed to take a bath alone or lock the door; to take her dogs for walks several times a day;
to prepare simple meals; to do some household chores; to shop; and to read, write, watch
television, crochet and use the computer daily. Plaintiff’s mother testified at the administrative
hearing held on July 15, 2014, that Plaintiff was enrolled in college and took twelve hours her
first semester and fifteen her second semester. (Doc. 9, p. 94). Plaintiff’s mom testified that
she dropped Plaintiff off for class at eight o’clock in the morning and would pick her up at four
o’clock in the afternoon, Monday through Thursday. (Doc. 9, p. 93). Plaintiff’s mother
testified that Plaintiff made “A’s” and “B’s.”
With respect to Plaintiff’s epilepsy, the record revealed that Plaintiff has been treated
with medication for most of her life. In March of 2013, prior to the alleged onset date,
Plaintiff’s family reported no seizures and Sharon B. Stevenson, APN, noted that Plaintiff’s
seizures were well controlled. The ALJ pointed out that while Plaintiff reported that she
continued to have spells often, the relevant medical evidence does not show Plaintiff reported
the frequency of these spells to her doctors. The medical evidence revealed that during the time
period in question Plaintiff sought treatment for symptoms related to allergies, a sinus
infection, an upper respiratory infection and an ear infection. 2 While Plaintiff reported
frequent migraines, the medical evidence does not reflect that Plaintiff reported these to her
doctors. After reviewing the record, the Court finds substantial evidence supports the ALJ’s
determination that Plaintiff’s physical impairments are not disabling.
With respect to Plaintiff’s alleged mental impairments, the record revealed that Plaintiff
did not allege a mental impairment in her applications for benefits. See Dunahoo v. Apfel, 241
F.3d 1033, 1039 (8th Cir. 2001) (failure to allege disabling mental impairment in application
is significant, even if evidence of depression is later developed). A review of the record also
failed to establish that Plaintiff sought on-going and consistent treatment from a mental health
provider during the time period in question. 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 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).
With regard to the statements by Plaintiff’s family and friends, and Plaintiff’s mother’s
testimony, the ALJ properly considered this evidence but found it unpersuasive.
The Court notes Plaintiff submitted medical evidence to the Appeals Council for her treatment of seizures
after having oral surgery in June of 2015. This was well after the time period in question for the application
currently before this Court.
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 during the time period
in question. Accordingly, the Court concludes that substantial evidence supports the Appeals
Council’s conclusion that Plaintiff’s subjective complaints were not totally credible.
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 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 the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and her medical
records when he determined Plaintiff could perform a full range of work at all exertional levels
but with some non-exertional limitations during the time period in question. The Court notes
that in determining Plaintiff’s RFC, the ALJ 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
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 Plaintiff’s RFC. 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 period
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 an office
clerk, a photo machine copy operator, and a hand packer. 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 21st day of June 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE
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