Norman v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on August 9, 2017. (tg)

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

LARRY L. NORMAN, JR.

PLAINTIFF

v.

CIVIL NO. 16-3069

NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Larry L. Norman, Jr., 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:
Plaintiff protectively filed his current applications for DIB and SSI on December 14,

2012, alleging an inability to work since January 1, 2008, due to bipolar disorder, paranoia,
depression and extreme anxiety. (Doc. 9, pp. 79, 317, 319). An administrative hearing was
held on August 12, 2014, at which Plaintiff appeared with counsel and testified. (Doc. 9, pp.
42-76).

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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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By written decision dated March 6, 2015, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Doc. 9,
p. 22). Specifically, the ALJ found Plaintiff had the following severe impairments: a right
rotator cuff tear, an affective disorder, a generalized anxiety disorder and obesity. 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. 23). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
perform a full range of work at all exertional levels but with the following nonexertional limitations: The claimant is limited to work where interpersonal
contact is incidental to the work performed; supervision is simple, direct, and
concrete; and work does not require complicated written communications. He
is unable to reach overhead with his right upper extremity, and can only reach
in all other directions occasionally on the right.
(Doc. 9, p. 24). With the help of a vocational expert, the ALJ determined Plaintiff could
perform work as a machine tender. (Doc. 9, p. 33).
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 April 18,
2016. (Doc. 9, p. 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. 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.
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
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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),
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), 1382(3)(C). 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

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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); 20 C.F.R. §§ 404.1520, 416.920.
III.

Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ’s RFC determination is

unsupported by substantial evidence; 2) the ALJ erred in failing to find that Plaintiff met
Listing 12.04; and 3) the ALJ erred in failing to make a proper credibility finding. 2
A.

Listing of Impairments:

Plaintiff argues that the ALJ erred by failing to determine that Plaintiff’s impairments
met Listing 12.04 of the Listing of Impairments pursuant to 20 CFR Part 404, Subpart P,
Appendix 1.
The burden of proof is on the Plaintiff to establish that his impairments meet or equal
a listing. See Sullivan v. Zebley, 493 U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).
To meet a listing, an impairment must meet all of the listing's specified criteria. Id. at 530, 110
S.Ct. 885 (“An impairment that manifests only some of these criteria, no matter how severely,
does not qualify.”); Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “Medical
equivalence must be based on medical findings.” 20 C.F.R. § 416.926(b) (2003); Sullivan, 493
U.S. at 531 (“a claimant ... must present medical findings equal in severity to all the criteria
for the one most similar listed impairment”). In this case, the ALJ explicitly found there were

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The Court has reordered Plaintiff’s arguments to correspond with the five-step analysis utilized by the Commissioner.

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no medical listings that precisely met or were medically equal to the criteria described in any
of the impairments contained in the Listing of Impairments.
After reviewing the entire evidence of record, the Court finds there is sufficient
evidence to support the ALJ’s determination that Plaintiff’s impairments did not medically
equal a Listing.
B.

Subjective Complaints and Symptom Evaluation:

We now address the ALJ's assessment of Plaintiff's subjective complaints. 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 United States Court of Appeals for the Eighth Circuit observed, “Our touchstone is that
[a claimant's] credibility is primarily a matter for the ALJ to decide.” Edwards v. Barnhart,
314 F.3d 964, 966 (8th Cir. 2003).
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 in September of 2012, Plaintiff indicated that he was able to take care of his
personal needs, prepare simple meals, do laundry, walk, use public transportation, and watch
television. (Doc. 9, pp. 441-448). While Plaintiff indicated that he did not have much of a
social life, medical evidence revealed that Plaintiff reported he was not able to be out due to
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the rules of the shelter or the time he spent on public transportation, and not because he did not
want or was unable to be around others. (Doc. 9, pp. 672, 701).
With respect to Plaintiff’s alleged mental impairments, the record revealed that Plaintiff
responded well to medication, and while he had some setbacks, he reported on more than one
occasion that he was doing well. (Doc. 9, pp. 762, 843, 880, 887, 912). A review of the record
revealed that Plaintiff was noted to have a normal attention span and concentration, as well as
a normal memory, on numerous occasions during the time period in question. (Doc. 9, pp.
512, 516, 522, 543, 679, 681, 878, 885, 965). With respect to the side effects caused by
medication, the record revealed that in March of 2014, Plaintiff denied experiencing any side
effects. (Doc. 9, p. 912). In an August of 2014 Medical Source Statement, Ms. Judy Sweet,
LCSW, also reported that Plaintiff did not report experiencing side effects caused by his
medications. (Doc. 9, p. 975).
With respect to Plaintiff’s alleged shoulder impairment, the record revealed that
Plaintiff underwent an unsuccessful rotator cuff repair in June of 2014. (Doc. 9, p. 971).
During a follow-up appointment on July 15, 2014, Plaintiff indicated that he did not want to
undergo an additional surgery and reported that he had less pain and was functioning
reasonably well. (Doc. 9, p. 973). The ALJ addressed Plaintiff’s right shoulder impairment
and included limitations when determining Plaintiff’s RFC.
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,

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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
periods.
With regard to the testimony of Plaintiff’s sister, 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, 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.
C.

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,

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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.
“The [social security] regulations provide that a treating physician's opinion ... will be
granted ‘controlling weight,’ provided the opinion is ‘well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] record.’” Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000) (citations
omitted). An ALJ may discount such an opinion if other medical assessments are supported
by superior medical evidence, or if the treating physician has offered inconsistent opinions. Id.
at 1013. Whether the weight accorded the treating physician's opinion by the ALJ is great or
small, the ALJ must give good reasons for that weighting. Id. (citing 20 C.F.R. §
404.1527(d)(2)).
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 a full range of exertional work with some
limitations. The Court notes that in determining Plaintiff’s RFC, the ALJ discussed the
medical opinions of examining and non-examining medical professionals, as well as “other
source” medical opinions, 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).

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Plaintiff argues that the ALJ improperly discounted Ms. Sweet’s, August 26, 2014,
Mental Medical Assessment Questionnaire, opining that Plaintiff was unable to meet the
competitive standards or had no useful ability to function in numerous areas of functioning.
After review, the Court finds that the ALJ did not err in discounting the opinion of Ms. Sweet.
The ALJ declined to give controlling weight to Ms. Sweet’s opinion for good and wellsupported reasons. See Goff v. Barnhart, 421 F.3d 785, 790–91 (8th Cir. 2005) (“[A]n
appropriate finding of inconsistency with other evidence alone is sufficient to discount [the
treating physician's] opinion.”). A review further reveals substantial evidence supports the
weight that the ALJ gave to the opinions of Drs. Sharon Steingard and Frank Rosekrans.
While Plaintiff argues that the ALJ erred in the analysis of Plaintiff’s GAF scores, a
GAF score is not essential to the RFC’s accuracy. Howard v. Commissioner of Social Security,
276 F.3d 235, 241 (6th Cir. 2002). “[A]n ALJ may afford greater weight to medical evidence
and testimony than to GAF scores when the evidence requires it.” Jones v. Astrue, 619 F.3d
963, 974 (8th Cir. 2010). 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.
D.

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

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as a whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). The Court notes that the
vocational expert decreased the number of jobs available to the hypothetical individual due to
the limitations on reaching with the non-dominant hand. 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 machine 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).
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 9th day of August 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE

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