Whittenburg v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on April 12, 2013. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CIVIL NO. 12-5059
MICHAEL J. ASTRUE1, Commissioner
Social Security Administration
Plaintiff, Angela Whittenburg, 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 29, 2009, alleging an
inability to work since February 12, 2009, due to Crohn’s disease, osteoarthritis of the lower
back, vision problems, multiple levels of degenerative disc disease, and asthma.2 (Tr. 104, 138).
Carolyn Colvin became the Acting Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn Colvin has been substituted for Commissioner Michael
J. Astrue as the Defendant in this suit.
At the administrative hearing held on July 13, 2010, Plaintiff amended her alleged onset date to May 14, 2009. (Tr.
An administrative hearing was held on July 13, 2010, at which Plaintiff appeared with counsel
and testified. (Tr. 37-59).
By written decision dated October 26, 2010, the Administrative Law Judge (ALJ) found
that during the relevant time period, Plaintiff had an impairment or combination of impairments
that were severe. (Tr. 14). Specifically, the ALJ found Plaintiff had the following severe
impairments: degenerative disc disease, Crohn’s disease, asthma, 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. (Tr. 15). The ALJ found Plaintiff retained the
residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a). She can lift/carry 10
pounds. She can only occasionally climb, balance, crawl, kneel, stoop and
crouch. Additionally, she must avoid concentrated exposure to pulmonary
irritants, including fumes, dusts, odors, fumes (sic), gases and poor ventilation.
She also requires reasonable access to restroom facilities such that she could use
them during normal work breaks.
(Tr. 15). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a small product assembler, a small production machine operator, and a credit interviewed.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on February 1, 2012. (Tr. 1-4). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 4).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8,10).
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),
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 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 in this appeal: 1) the ALJ erred in determining
Plaintiff’s severe impairments; 2) the ALJ erred in determining Plaintiff’s RFC; 3) the ALJ erred
in determining what jobs Plaintiff was able to perform; and 4) the ALJ failed to properly develop
At Step Two of the sequential analysis, the ALJ is required to determine whether a
claimant's impairments are severe. See 20 C .F.R. § 404.1520(c). To be severe, an impairment
only needs to have more than a minimal impact on a claimant's ability to perform work-related
activities. See Social Security Ruling 96-3p. The Step Two requirement is only a threshold test
so the claimant's burden is minimal and does not require a showing that the impairment is
disabling in nature. See Brown v. Yuckert, 482 U.S. 137, 153-54 (1987). The claimant,
however, has the burden of proof of showing she suffers from a medically-severe impairment
at Step Two. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.2000).
Plaintiff argues that the ALJ improperly found Plaintiff’s alleged fainting/syncope and
depression/anxiety to be a non-severe impairments. A review of the medical evidence failed to
show that Plaintiff sought treatment for either of these impairments during the relevant time
period. In fact, on August 6, 2009, the last time Plaintiff sought medical treatment from her
treating physician, Plaintiff failed to mention any difficulties with fainting, syncope or mental
impairments. (Tr. 405). The Court would note Plaintiff was seen on this date to undergo a
physical so that she could become a foster parent and the examination notes fail to report any
difficulties with these alleged impairments.
While the ALJ found that Plaintiff’s alleged fainting/syncope and depression/anxiety
were non-severe, the ALJ clearly stated that he considered all of Plaintiff’s impairments,
including the impairments that were found to be non-severe. (Tr. 13). See Swartz v. Barnhart,
188 F. App'x 361, 368 (6th Cir.2006) (where ALJ finds at least one “severe” impairment and
proceeds to assess claimant's RFC based on all alleged impairments, any error in failing to
identify particular impairment as “severe” at step two is harmless); Elmore v. Astrue, 2012 WL
1085487 *12 (E.D. Mo. March 5, 2012); see also 20 C.F.R. § 416.945(a)(2) (in assessing RFC,
ALJ must consider “all of [a claimant's] medically determinable impairments ..., including ...
impairments that are not ‘severe’ ”); § 416.923 (ALJ must “consider the combined effect of all
[the claimant's] impairments without regard to whether any such impairment, if considered
separately, would be of sufficient severity”). Thus, the ALJ's finding that Plaintiff's alleged
fainting/syncope and depression/anxiety were not “severe” impairments does not constitute
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 his RFC.” Id.
In the present case, the ALJ considered the medical assessments of non-examining
agency medical consultants, Plaintiff’s subjective complaints, and her medical records when he
determined Plaintiff could perform sedentary work with limitations. The Court finds, based upon
the record as a whole and the well-stated reasons outlined in the Defendant’s brief, that
Plaintiff’s argument is without merit. Accordingly, the Court finds there is substantial evidence
of record to support the ALJ’s RFC findings.
Subjective Complaints and Credibility Analysis:
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 at 966.
After reviewing the administrative record, and the Defendant’s well-stated reasons set
forth in her brief, it is clear that the ALJ properly considered and evaluated Plaintiff’s subjective
complaints, including the Polaski factors. With regard to Plaintiff’s Crohn’s disease, the ALJ
noted that when Plaintiff was compliant with her treatment plan, her Crohn’s disease was kept
under control. (Tr. 258-261). The Court notes that if an impairment can be controlled by
treatment or medication, it cannot be considered disabling.” Brown v. Barnhart, 390 F.3d 535,
540 (8th Cir.2004) (internal quotations omitted); see 20 C.F.R. §§ 404.1530(b), 416.930(b) (“If
you do not follow the prescribed treatment without a good reason, we will not find you
With regard to an alleged mental impairment, the record failed to show Plaintiff sought
treatment from a mental health professional. 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). It is also noteworthy that Plaintiff did
not allege a mental impairment when she applied 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).
The Court would also 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).
Based on the record as a whole, the Court finds there is substantial evidence to support
the ALJ’s credibility findings.
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 her from performing work as a small product
assembler, a small production machine operator, and a credit interviewed. 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 12th day of April, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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