Walker v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 18, 2012. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CIVIL NO. 11-5116
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Randy Walker, 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).
Plaintiff protectively filed his current applications for DIB and SSI on November 15,
2007, and January 16, 2009, respectively, alleging an inability to work since July 1, 2006, due
to epilepsy, head injuries, amputated right biceps, and seizures. (Tr. 53, 57, 65). For DIB
purposes, Plaintiff maintained insured status through September 30, 2009. (Tr. 10, 48). An
administrative hearing was held on June 5, 2009, at which Plaintiff appeared with counsel and
testified. (Tr. 212-235).
By written decision dated February 23, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 12).
Specifically, the ALJ found Plaintiff had the following severe impairment: visual field
contraction. 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. 14). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
perform a full range of work at all exertional levels. However, the claimant has
nonexertional limitations precluding work requiring fine visual acuity, exposure
to extremes of heat, climbing ladders, ropes or scaffolds, and more than moderate
exposure to work-place hazards such as untended moving machinery, heights, or
other hazards consistent with normal seizure precautions.
(Tr. 14). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
in housekeeping, and as a hand packager. (Tr. 19).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on April 7, 2011. (Tr. 2-4). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 6). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8, 9).
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),
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 him 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, 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.
Plaintiff contends that the ALJ erred in concluding that the Plaintiff was not disabled
because (1) the ALJ erred in failing to consider all of the claimant’s impairments in combination;
(2) the ALJ erred in her analysis and credibility findings in regard to Plaintiff’s subjective
complaints of pain; (3) the ALJ erred in finding that Plaintiff retained the RFC to perform a full
range of work at all exertional levels; and (4) the ALJ erred in failing to fully and fairly develop
the record. Defendant argues substantial evidence supports the ALJ’s determination.
Combination of Impairments:
Plaintiff argues that the ALJ erred in failing to consider all of the claimant’s impairments
The ALJ stated that in determining Plaintiff’s RFC, she considered “all of the claimant’s
impairments, including impairments that are not severe.” (Tr. 11). The ALJ further found that
the Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments. (Tr. 14). 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 Credibility Analysis:
Plaintiff argues that the ALJ improperly disregarded Plaintiff’s subjective complaints.
Defendant argues that substantial evidence of record supports the ALJ’s credibility findings.
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 evaluated
Plaintiff’s subjective complaints. Although Plaintiff contends that his impairments were
disabling, the evidence of record does not support this conclusion.
With regard to Plaintiff’s alleged seizure disorder, the ALJ noted that Plaintiff reported
that he experienced seizures two to three times a week. A review of the medical evidence failed
to reveal that Plaintiff ever sought treatment for seizures during the relevant time period. The
record revealed that on January 23, 2008, Plaintiff reported to Dr. Rayetta Eaton during the
consultative evaluation that he had experienced a seizure a few weeks prior to the evaluation, and
then a year prior to that. However the ALJ pointed out that the record failed to show that
Plaintiff sought treatment for these seizures. (Tr. 186-191). The ALJ further pointed out that
during the administrative hearing held on June 5, 2009, Plaintiff testified that he had not been
treated for his seizures since 1992. (Tr. 227-228). The Court notes that Dr. Eaton stated that
some consideration for a neurological check might be necessary based off of Plaintiff’s report
that he experienced seizures; however, as pointed out by the ALJ, there is no evidence to support
that Plaintiff had ever sought treatment for seizures since 1992. It is also noteworthy that the
ALJ did consider Plaintiff’s alleged seizures, as she included standard seizure precautions when
determining Plaintiff’s RFC. Thus, the Court finds substantial evidence to support the ALJ’s
findings regarding Plaintiff’s alleged seizure impairment.
While Plaintiff alleged an inability to seek treatment for his seizures 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). Furthermore, the record revealed that
Plaintiff sought treatment from the emergency room physicians, as well as Dr. Wm. Frank Webb,
Plaintiff’s treating physician, and at no time did he complain of experiencing on-going seizures.
As Plaintiff reported that he had last used marijuana as recently as May of 2009, it appears
Plaintiff had some financial means and chose not to seek treatment. (Tr. 207).
With regard to Plaintiff’s partially amputated biceps, the ALJ pointed out that Plaintiff
reported to Dr. Eaton in January of 2008, that this injury occurred in 1990. (Tr. 186). The ALJ
noted that Dr. Eaton found Plaintiff had full range of motion in Plaintiff’s spine and extremities
and normal grip strength in Plaintiff’s right hand.1 The medical evidence revealed that in July
of 2006, Dr. Webb noted that Plaintiff’s extremities were healthy. (Tr. 172-173). The ALJ also
pointed out that Plaintiff had worked for many years with this alleged disabling impairment. The
Court notes that absent a showing of deterioration, working after the onset of an impairment is
some evidence of an ability to work. Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir.2005). The
ALJ also noted that Plaintiff failed to report limitations caused by this impairment to his treating
physicians. Based on the record as a whole, the Court finds substantial evidence to support the
ALJ’s findings regarding Plaintiff’s alleged partially amputated biceps.
With regard to Plaintiff’s peptic ulcer disease, the medical evidence revealed that prior
to the relevant time period, Plaintiff was diagnosed and treated for gastroenteritis, peptic ulcer
disease, and erosive gastritis. (Tr. 147-167, 176-182). On June 26, 2006, Dr. Webb noted that
Plaintiff’s gastritis had healed “pretty good.” (Tr. 174).
The medical evidence during the relevant time period revealed that on July 5, 2006,
Plaintiff complained of a worsening of his ongoing stomach problems. (Tr. 172-173). Plaintiff
reported he had a lot of blood in his stool and vomit. Plaintiff reported that it was ten times
worse than the previous week. Plaintiff reported experiencing chills, a fever and the inability to
sleep for the past three days. Dr. Webb noted that Plaintiff had documented peptic ulcer disease
and severe fundal gastritis from a biopsy. Upon examination, Dr. Webb noted Plaintiff’s
The medical records indicated that Plaintiff had a boxer’s fracture of the left hand at the time of the evaluation.
abdomen was soft with active bowel sounds; that Plaintiff’s extremities were healthy; and that
Plaintiff was neurologically grossly intact. Dr. Webb diagnosed Plaintiff with peptic ulcer
disease, acute gastritis and irritable bowel syndrome. Plaintiff was prescribed Librax, Valium,
MS Contin and Zyprexa. On August 1, 2006, Dr. Webb noted that objectively Plaintiff’s
physical examination was healthy. (Tr. 170). There is no medical evidence to show that Plaintiff
sought treatment for his peptic ulcer disease again during the relevant time period. Based on the
record as a whole, the Court finds substantial evidence to support the ALJ’s findings regarding
Plaintiff’s alleged peptic ulcer disease.
With regard to Plaintiff’s alleged head injury, the ALJ noted that Plaintiff reported a head
injury in the distant past, and again in 2007, for which he was admitted into the hospital. The
ALJ pointed out that the only medical evidence of a hospital admission in 2007, was when
Plaintiff was brought to the emergency room after being involved in a “brawl” at his girlfriend’s
house in May of 2007. (Tr. 126-146). The records revealed that on May 20, 2007, Plaintiff
presented to the Northwest Medical Center emergency room and reported he had been involved
in a fist fight. Dr. Jerry S. Dorman noted that Plaintiff had been brought into the emergency
room after being severely beaten about the head and neck. Dr. Dorman noted that an initial
evaluation revealed extensive abrasions, contusions, and lacerations about the head and neck.
Dr. Dorman noted Plaintiff also had a fracture of the left rib. Plaintiff’s lacerations were sutured
in the emergency room, and Plaintiff was admitted for observation. Plaintiff was noted to have
had a previous hospitalization for a bleeding ulcer for which he took Carafate. Plaintiff reported
that he worked vaccinating cattle and putting roofs on barns. Plaintiff was discharged on May
21, 2007. The ALJ also pointed out that along with no treatment records for a head injury, the
medical evidence failed to show any objective testing of a head injury during the time period in
question. Based on the record as a whole, the Court finds substantial evidence to support the
ALJ’s findings regarding Plaintiff’s alleged head injury.
With regard to Plaintiff’s alleged depression and anxiety, it is noteworthy that Plaintiff
did not allege a disabling mental impairment in his application 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). In addressing
Plaintiff’s mental impairments, the ALJ noted that the evidence failed to demonstrate that
Plaintiff sought or received ongoing and consistent mental health treatment 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 medical evidence revealed that Dr. Webb diagnosed Plaintiff with
anxiety on August 1, 2006; however when Dr. Webb treated Plaintiff in June of 2007 and March
of 2008, there was no mention of anxiety. (Tr.170). The ALJ also pointed out that when Plaintiff
was examined by Dr. Patricia Walz in September of 2009, Dr. Walz’s opinion regarding
Plaintiff’s Computerized Assessment of Response Bias (CARB) test results was as follows:
This test indicated that he gave extremely poor effort. The effort was far below
individuals who have sustained a severe brain injury and was within the range of
random responding. The report stated, “A 3 year old child who is simply
pressing keys randomly could easily obtain such a performance. Individuals who
are attempting to simulate, exaggerate, or malinger cognitive deficits may obtain
this profile[; this] indicates a complete lack of compliance with the assessment
process.” Therefore, test results are suspect.
(Tr. 209). After evaluating Plaintiff, Dr. Walz summarized her findings as follows:
Mr. Walker’s performance on a comprehensive neuropsychological evaluation
was considered invalid because of his poor performance on the CARB.
Nonetheless, even if he was giving poor effort he was able to perform in the
borderline range on the IQ test which would rule out mental retardation. His
achievement skills were in the low average to average range with the exception
of math reasoning. He did poorly on a test of concept formation and mental
flexibility but otherwise his cognitive skills were in the average range, including
memory. He reported depression and anxiety related to his seizure disorder.
Diagnostic impression is of Anxiety and Depression secondary to Medical
Condition (Seizures). He also reported anger control issues which have affected
his functioning in that he’s lost jobs and been to prison.
(Tr. 211). The ALJ found that based on Plaintiff’s lack of mental health treatment, the lack of
a valid diagnosis, and Dr. Walz’s report concerning Plaintiff’s veracity that Plaintiff’s mental
impairments were not severe. Based on the record as a whole, the Court finds substantial
evidence to support the ALJ’s findings regarding Plaintiff’s alleged mental impairments.
With regard to Plaintiff’s alleged back and leg pain and arthritis, the ALJ noted that there
was no treatment, diagnosis, diagnostic studies, or imaging in Plaintiff’s medical records to
support Plaintiff’s allegations of disabling pain. The medical evidence revealed that in August
of 2006, Dr. Webb noted that Plaintiff’s physical examination was healthy. (Tr. 170). The ALJ
noted that in January of 2008, Dr. Eaton found Plaintiff to have a full range of motion of his
spine and extremities. Dr. Eaton further stated “ I do not appreciate any physical limitations once
vision is evaluated.” (Tr. 190). While Dr. Webb noted that Plaintiff complained of aches and
pain in March of 2008, and diagnosed Plaintiff with arthritis, he did not place any limitations on
Plaintiff. (Tr. 195). In July of 2009. Dr. Blake N. Geren noted Plaintiff moved about the
examination room without assistance. (Tr. 200). It is noteworthy that Plaintiff did not seek
treatment for these alleged impairments again during the relevant time period. Based on the
record as a whole, the Court finds substantial evidence to support the ALJ’s findings regarding
Plaintiff’s alleged back and leg pain and arthritis.
As for Plaintiff’s visual impairment, the ALJ noted that Dr. Geren found Plaintiff’s bestcorrected visual acuity was 20/20 in both eyes. (Tr. 200-202). Dr. Geren further noted that
Plaintiff had a visual field constriction in his right eye. The ALJ noted these findings and
included limitations for the visual field constriction in the RFC determination. Based on the
record as a whole, the Court finds substantial evidence to support the ALJ’s findings regarding
Plaintiff’s visual impairment.
Plaintiff's subjective complaints are also inconsistent with evidence regarding his daily
activities. A review of the record revealed that in a Function Report dated April 24, 2008,
Plaintiff reported that he could take care of his personal needs when he was not dizzy; that he
could prepare simple meals; and that he could perform household chores when he was not dizzy.
(Tr. 89-96). A review of the record revealed that in May of 2007, Plaintiff reported that his job
consisted of vaccinating cattle and putting roofs on barns. (Tr. 128). Plaintiff was also noted
to have custody of his two daughters, who apparently lived with his mother yet he saw them
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.
The ALJ’s RFC determination:
Plaintiff argues that the ALJ erred in determining that Plaintiff could perform a full range
of work at all exertional levels. Defendant argues that substantial evidence of record supports
the ALJ’s RFC finding.
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 the present case, the ALJ considered the medical assessments of non-examining agency
medical consultants, Plaintiff’s subjective complaints, and his medical records when the ALJ
determined Plaintiff maintained the RFC to perform work at all exertional levels with some nonexertional limitations. Plaintiff's capacity to perform work at all exertional levels with limitations
is supported by the fact that the medical evidence does not indicate that Plaintiff's examining
physicians placed restrictions on his activities that would preclude performing the RFC
determined. See Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (lack of physician-imposed
restrictions militates against a finding of total disability). Based on our above discussion of the
medical evidence and Plaintiff's activities during the relevant time period, the Court finds
substantial evidence of record to support the ALJ's RFC determination.
Fully and Fairly Develop the Record:
The Court rejects Plaintiff’s contention that the ALJ failed to fully and fairly develop the
record. While an ALJ is required to develop the record fully and fairly, see Freeman v. Apfel, 208
F.3d 687, 692 (8th Cir.2000) (ALJ must order consultative examination only when it is necessary
for an informed decision), 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. See
Strongson v. Barnhart, 361 F.3d 1066, 1071-72 (8th Cir.2004) (ALJ must develop record fully
and fairly to ensure it includes evidence from treating physician, or at least examining physician,
addressing impairments at issue).
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 him from performing work in housekeeping, and as a
hand packager. 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
DATED this 18th day of June 2012.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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