Tumbleson v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on September 8, 2017. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CIVIL NO. 16-3058
NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration
Plaintiff, Tracy Tumbleson, 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) 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 her current application for DIB on May 28, 2013, alleging
an inability to work since February 2, 2004, 2 due to back problems, neck problems, arthritis,
scoliosis, chronic bilateral knee pain, ankle and foot problems, high blood pressure, chronic
obstructive pulmonary disease, bronchitis, hyperglycemia and sleep apnea. (Tr. 75, 153). An
administrative hearing was held on September 9, 2014, at which Plaintiff appeared with
counsel and testified. (Tr. 27-73).
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 her counsel, amended her alleged onset date to October 1, 2012. (Tr. 33).
By written decision dated January 14, 2015, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.
15). Specifically, the ALJ found Plaintiff had the following severe impairments: asthma,
obesity, hypertension, chronic obstructive pulmonary, degenerative disc disease, and diabetes
mellitus. 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. (Tr. 16). The
ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) except the
following: she can occasionally climbing (sic) ramps and stairs, balance, stoop,
kneel, crouch, and crawl. Environmentally, she should avoid concentrated
exposures to pulmonary irritants. She remains able to frequently finger and
(Tr. 17). With the help of a vocational expert, the ALJ determined Plaintiff could perform
work as a cashier, a space scheduling representative, and an appointment clerk. (Tr. 21).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on April 1, 2016. (Tr. 1-6). 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).
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. 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); 20 C.F.R. § 404.1520.
Plaintiff argues the following issues on appeal: 1) the ALJ failed to consider all of
Plaintiff’s impairments in combination; 2) the ALJ erred in his analysis and credibility findings
in regard to Plaintiff’s subjective complaints of pain; 3) the ALJ erred in finding Plaintiff
retains the RFC to perform a limited range of sedentary work; and 4) the ALJ erred in failing
to fully and fairly develop the record.
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. 14). The ALJ further found that
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments. (Tr. 16). Such language demonstrates the ALJ
considered the combined effect of Plaintiff’s impairments. Hajek v. Shalala, 30 F.3d 89, 92
(8th Cir. 1994).
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 during the relevant time period, Plaintiff reported that she was able to take
care of her personal hygiene, noting pain with shaving, brushing her hair, and using the toilet;
to prepare simple meals; to do laundry and light housekeeping, slowly; to drive; to shop for
food, cleaning supplies and clothes; to handle personal finances; and to visit with friends and
family. Plaintiff further reported that she cared for her disabled husband who had a history of
numerous heart attacks and severe breathing limitations.
With respect to Plaintiff’s alleged physical impairments, the record revealed that
Plaintiff was treated conservatively and appeared to experience some relief with the use of
medication. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir.1998); See Robinson v. Sullivan,
956 F.2d 836, 840 (8th Cir. 1992) (course of conservative treatment contradicted claims of
With respect to Plaintiff’s alleged disabling asthma and chronic obstructive pulmonary
disease, Plaintiff’s medical providers recommended that Plaintiff stop smoking and despite
these recommendations, Plaintiff continued to smoke throughout the relevant time period. See
Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997) (noting that a failure to follow prescribed
treatment may be grounds for denying an application for benefits). This is not a case in which
the correlation between Plaintiff's smoking and Plaintiff’s impairment is not readily apparent.
Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir. 2008) (citations omitted). To the contrary, there
is no dispute that smoking has a direct impact on Plaintiff’s pulmonary impairments. Thus, the
ALJ appropriately considered Plaintiff's failure to stop smoking. Id.
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). 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, 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 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 sedentary work with limitations. 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 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 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). Based on the record as a whole, the Court
finds substantial evidence to support the ALJ’s RFC determination.
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 cashier,
a space scheduling representative, and an appointment 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).
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). 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.
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 8th day of September 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE
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