Smith v. Social Security Administration Commissioner
Filing
15
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 18, 2016. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
CONNIE SMITH
vs.
PLAINTIFF
Civil No. 4:15-cv-04079
CAROLYN COLVIN
Commissioner, Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Connie Smith (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying her application for
Disability Insurance Benefits (“DIB”) under Title II of the Act. The parties have consented to the
jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including
conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment
proceedings. ECF No. 5.1 Pursuant to this authority, the Court issues this memorandum opinion
and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff’s application for DIB was filed on April 18, 2013. (Tr. 40, 173-176). Plaintiff
alleged she was disabled due to bad knees and depression. (Tr. 196). Plaintiff alleged an onset date
of March 27, 2013. (Tr. 40). This application was denied initially and again upon reconsideration.
(Tr. 40, 141-143, 148-149). Thereafter, Plaintiff requested an administrative hearing on her
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The docket numbers for this case are referenced by the designation “ECF. No.___” The transcript pages
for this case are referenced by the designation “Tr.”
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application and this hearing request was granted. (Tr. 151).
Plaintiff ‘s administrative hearing was held on July 29, 2014. (Tr. 80-113). Plaintiff was
present and was represented by counsel, Greg Giles, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Susan Johnson testified at this hearing. Id. At the time of this hearing, Plaintiff was
fifty-one (51) years old and had a high school education. (Tr. 83).
On August 27, 2014, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 40-75). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2018. (Tr. 42, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since her alleged onset date of
March 27, 2013. (Tr. 43, Finding 2).
The ALJ also determined Plaintiff had the severe impairments of morbid obesity, residuals
status post Lap-Band surgery, residuals status post left knee replacement surgery, degenerative joint
disease of the right knee, anxiety disorder, and a major depressive disorder. (Tr. 44, Finding 3). The
ALJ then determined Plaintiff’s impairments did not meet or medically equal the requirements of
any of the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr.
57, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 60-70). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
an RFC for a restricted range of sedentary work. (Tr. 60-61, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 70, Finding 6). The ALJ
found Plaintiff was unable to perform her PRW. Id. The ALJ however determined there was other
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work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 72,
Finding 10). The VE testified at the administrative hearing regarding this issue. (Tr. 44-46). Based
upon that testimony, the ALJ determined Plaintiff retained the ability to perform other work such as
information clerk with 18,000 such jobs in Arkansas and 966,000 such jobs in the nation and sorter
with 1,900 such jobs in Arkansas and 48,000 such jobs in the nation. (Tr. 74). Given this, the ALJ
determined Plaintiff had not been under a disability as defined in the Act from March 27, 2013
through the date of the decision. (Tr. 74, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 36). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-13).
On August 31, 2015, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on September 1, 2015. ECF No. 5. Both Parties have filed appeal briefs.
ECF Nos. 10, 13. This case is now ready for decision.
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible
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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. See 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 or her disability by establishing a physical or mental disability that lasted at least one
year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,
160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
a “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 or her disability, not simply his or her impairment, has lasted for at least twelve consecutive
months. See 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)
whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
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the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3. Discussion:
Plaintiff brings the present appeal claiming the ALJ erred: (1) by failing to find Plaintiff met
a Listing and (2) by failing to properly consider Plaintiff’s mental impairments in assessing her RFC.
ECF No. 10, Pgs. 3-18. In response, the Defendant argues the ALJ did not err in any of her findings.
ECF No. 13.
A. Listings
The ALJ must determine whether Plaintiff has a severe impairment that significantly limits
the physical or mental ability to perform basic work activities. A medically determinable impairment
or combination of impairments is severe if it significantly limits an individual’s physical or mental
ability to do basic work activities. See 20 C.F.R. §§ 404.1521 and 416.921.
The ALJ found Plaintiff did suffer from impairments considered to be severe within the
meaning of the Social Security regulations. These impairments included morbid obesity, residuals
status post Lap-Band surgery, residuals status post left knee replacement surgery, degenerative joint
disease of the right knee, anxiety disorder, and a major depressive disorder (Tr. 44, Finding 3).
However, there was no substantial evidence in the record showing Plaintiff’s condition was severe
enough to meet or equal that of a listed impairment as set forth in the Listing of Impairments. See
20 C.F.R. pt. 404, subpt. P, app.1. Plaintiff has the burden of establishing that her impairment(s)
meet or equal an impairment set out in the Listing of Impairments. See Sullivan v. Zebley, 493 U.S.
521, 530-31 (1990). Plaintiff has not met this burden.
Plaintiff argues she meets a Listing under Section 1.02 because ineffective ambulation due
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to the need for a right knee replacement. ECF No. 10, Pgs. 3-13. Defendant argues Plaintiff has
failed to establish she meets this Listing. ECF No. 13.
To meet Listing 1.02, Plaintiff must have a major dysfunction of a joint with clinical
evidence of joint space narrowing, bony destruction, or ankylosis, with either:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee or
ankle), resulting in inability to ambulate effectively, or
B. Involvement of one major peripheral joint in each upper extremity (i.e.,shoulder,
elbow, or wrist-hand), resulting in inability to perform fine and gross movements
effectively.
An “inability to ambulate effectively” is an extreme limitation of the ability to walk, i.e., an
impairment that interferes very seriously with the individual’s ability to independently initiate,
sustain, or complete activities. Ineffective ambulation is having insufficient lower extremity
functioning to permit independent ambulation without the use of a hand-held assistive device(s) that
limits the functioning of both upper extremities. See 20 C.F.R. pt. 404, subpt. P, app. 1, §
1.00B2b(1). To ambulate effectively, individuals must be capable of sustaining a reasonable walking
pace over a sufficient distance to be able to carry out activities of daily living, and they must be able
to travel without companion assistance to and from a place of employment or school. See 20 C.F.R.
pt. 404, subpt. P, app. 1, § 1.00B2b(2). Examples of ineffective ambulation include, but are not
limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability
to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory activities, such as shopping and banking,
and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. Id.
Plaintiff does not have a joint dysfunction that resulted in an inability to ambulate effectively.
A diagnosis of a disorder alone is insufficient proof that Plaintiff met a listing. See 20 CFR §
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404.1525(d); Harris v. Barnhart, 356 F.3d 926, 929 (8th Cir. 2004); Collins ex. rel. Williams v.
Barnhart, 335 F.3d 726, 730 (8th Cir. 2003). Plaintiff has failed to establish she is unable to
ambulate effectively. Plaintiff offered no evidence she has to use a walker, two crutches, or two canes
to walk, or that a physician prescribed these items.
The medical record evidence supports the ALJ decision. In March 2012, Dr. Lawson Kile,
treated Plaintiff for complaints of bilateral knee pain. (Tr. 317). Dr. Kile reported Plaintiff walked
with a limp, but she was status-post total left knee replacement, and another physician told her the
right knee was a candidate for replacement surgery. (Tr. 318).
Following Plaintiff’s Lap-Band surgery in September 2012, Plaintiff was informed of the
importance of general exercise for her recovery. Dr. Ron Hekier advised Plaintiff on the importance
of exercising at least three times per week. (Tr. 283). Dr. Hekier continued to inform Plaintiff about
the importance of routine exercise on follow up visits. (Tr. 289, 292, 395).
From October 3, 2013 through November 20, 2013, Plaintiff attended physical therapy
sessions at the Little River Memorial Hospital. (Tr. 443-472). A physical therapist stated Plaintiff
had a limp on her right side; she ambulated independently; and did not use any assistive devices. (Tr.
459). A report from November 11, 2013, indicated Plaintiff’s muscle strength in her right knee was
“4+/5:” the range of motion was within normal limits; and she walked over 1,000 feet independently,
without assistive devices. (Tr. 463-464).
In July 2014, Dr. Greg Smolarz indicated Plaintiff was using anti-inflammatory medication
for her knee pain, and it appeared effective in controlling her knee pain. (Tr. 572). Dr. Smolarz
further recommended Plaintiff participate in an exercise program for strengthening of her knee. Id.
As a result of the above, Plaintiff has failed to establish she meets Listing 1.02.
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B. RFC
Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required
to determine a claimant’s RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must
be based on medical evidence that addresses the claimant’s ability to function in the workplace. See
Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). The ALJ should consider “‘all the evidence
in the record’ in determining the RFC, including ‘the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.’” Stormo v. Barnhart,
377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002)).
The Plaintiff has the burden of producing documents and evidence to support his or her claimed RFC.
See Cox, 160 F.3d at1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The ALJ, however, bears the primary responsibility for making the RFC determination and
for ensuring there is “some medical evidence” regarding the claimant’s “ability to function in the
workplace” that supports the RFC determination. Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir.
2001).
Furthermore, this Court is required to affirm the ALJ’s RFC determination if that
determination is supported by substantial evidence on the record as a whole. See McKinney v. Apfel,
228 F.3d 860, 862 (8th Cir. 2000).
In this matter, the ALJ determined Plaintiff retained the RFC for a restricted range of
sedentary work. (Tr. 60-61, Finding 5). Plaintiff argues the ALJ erred in this RFC determination by
failing to give appropriate weight to the opinions of Dr. Betty Feir. ECF No. 10, Pgs. 13-18.
However, substantial evidence supports the ALJ’s RFC determination.
In reviewing Plaintiff’s medical evidence of record, Plaintiff was seen for counseling and
mental health treatment from April 2013 through August 2013 with Dr. Betty Feir. (Tr. 369-378,
405-432). Notes from April 4, 2013, show Plaintiff was being seen because she had embezzled
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money from her employer, and they fired her the Monday before when an auditor discovered the theft.
(Tr. 377). This was approximately one week following her alleged date of disability. Additionally,
Plaintiff reported her husband was seeing another woman. Id.
When seen on May 16, 2013, Plaintiff’s attitude and mood improved, and she indicated she
had a “wonderful day yesterday” with a family outing. (Tr. 371). On May 23, 2013, Plaintiff showed
a “positive attitude and improved mood,” was “doing well,” and, “has some thoughts about doing
some floral work or even baking and cake decorating.” (Tr. 420). On June 20, 2013, Plaintiff
reported she and her mother had taken a trip to Nashville, Tennessee, to visit the Grand Ole Opry and
took a riverboat ride. (Tr. 416). On July 3, 2013, Plaintiff reported attending her grandson’s ball
game, and she had a positive attitude and improved mood. (Tr. 415). The medical record shows
Plaintiff attended her last counseling session on August 29, 2013. (Tr. 406). Plaintiff described her
day as busy with making fig and peach preserves, which the doctor described as evidence of a positive
attitude and improved mood. Id.
On July 22, 2014, a year after her last counseling session, Dr. Feir performed a psychological
evaluation of Plaintiff. (Tr. 539-548). Based on Plaintiff’s claims, Dr. Feir stated Plaintiff did not
appear to be able to work a forty-hour workweek without interference from psychologically based
symptoms. (Tr. 541). Dr. Feir also completed a form for assessing Plaintiff’s mental residual
functional capacity. (Tr. 542-543). Dr. Feir found Plaintiff was markedly limited in her ability to
understand and remember detailed instructions; perform activities within a schedule; sustain an
ordinary routine; work with others; and accept instructions from supervisors. Id.
Plaintiff argument the ALJ did not consider Dr. Feir’s opinions is without merit. The ALJ
discussed Dr. Feir’s records in detail. (Tr. 47-51, 53-54, 64-65, 68-69). The ALJ noted significant
contradictions between Dr. Feir’s objective treatment notes, which showed a progression of
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improvement in Plaintiff’s life, and the doctor’s mental evaluation, which heavily relied on Plaintiff’s
subjective complaints. (Tr. 64). The ALJ properly determined Dr. Feir’s assessment was entitled
to little evidentiary weight. (Tr. 69).
Further, ALJ considered Plaintiff’s ex-employer fired her for embezzlement, and not due to
a mental impairment. (Tr. 64). Also, Plaintiff filed for disability benefits due to her considerable
financial problems, “hoping to get disability to repay the amount she owed.” Id.
As shown by the above medical evidence, substantial evidence supports the ALJ’s RFC
determination. Plaintiff has the burden of establishing her claimed RFC. See Goff v. Barnhart, 421
F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)).
Because Plaintiff has not met her burden in this case and because the ALJ’s RFC determination is
supported by sufficient medical evidence, this Court finds the ALJ’s RFC determination should be
affirmed.
4. Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, is supported by
substantial evidence and should be affirmed. A judgment incorporating these findings will be entered
pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 18th day of July 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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