Gross v. Social Security Administration Commissioner

Filing 8

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on April 17, 2013. (tg)

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

STACEY DEE GROSS

PLAINTIFF

v.

CIVIL NO. 12-5060

MICHAEL J. ASTRUE1, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Stacy Dee Gross, 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).
I.

Procedural Background:
Plaintiff protectively filed her current application for DIB on March 6, 2009, alleging an

inability to work since December 31, 2008, due to a “Bi-polar disorder, fibromyalgia, iritis,
ankylosing spondilitis, [and a] curvature of [the] spine.” (Tr. 170-172, 190). An administrative
hearing was held on May 6, 2010, at which Plaintiff appeared with counsel and testified. (Tr. 33117).

1

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.

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By written decision dated July 12, 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. 16).

Specifically, the ALJ found Plaintiff had the following severe

impairments: fibromyalgia, osteoarthritis, bipolar disorder, and borderline personality disorder.
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. 4). The ALJ found
Plaintiff retained the following residual functional capacity (RFC):
She is limited to light and sedentary exertion work only. She is unable to climb
ropes, ladders, and scaffolds, and is unable to work in environments where she
would be exposed to unprotected heights, and dangerous moving machinery
parts. She is able to understand, remember, and carry out simple instructions in
a work-related setting, and is able to interact with co-workers and supervisors,
under routine supervision, but is unable to interact with the general public more
than occasionally, regardless of whether that interaction is in person or over a
telephone.
(Tr. 20). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a housekeeper, a mail room clerk, an assembler, and an escort driver. (Tr. 26).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence, denied that request on February 2, 2012. (Tr. 1-5).
Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant
to the consent of the parties. (Doc. 3). Both parties have filed appeal briefs, and the case is now
ready for decision. (Docs. 5,7).
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.

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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 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.
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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.
III.

Discussion:
Plaintiff argues the following issues in this appeal: 1) the ALJ erred in determining

Plaintiff’s severe impairments; 2) the ALJ erred in determining that Plaintiff’s impairments did
not meet a Listing of Impairments; 3) the ALJ erred in determining Plaintiff’s RFC; and 4) the
ALJ erred in determining that there were jobs Plaintiff could perform.
A.

Plaintiff’s Impairments:

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,
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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).
While the ALJ found that Plaintiff’s alleged non-epileptic seizures, iritis, hypoglycemia,
and ankylosing or curvature of the spine were non-severe, the ALJ clearly considered all of
Plaintiff’s impairments, including the impairments that were found to be non-severe. 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 non-epileptic seizures, iritis, hypoglycemia, and ankylosing or curvature of the spine
were not “severe” impairments does not constitute reversible error.
B.

Listing 12.04:

Plaintiff argues that she met Listing 12.042 due to her history of severe and wellestablished mental impairments.
The burden of proof is on the Plaintiff to establish that her impairment meets or equals
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
2

See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.

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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”).
The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit, and there was sufficient evidence for the ALJ to make
an informed decision. Therefore, the Court finds there is substantial evidence of record to
support the ALJ’s finding that Plaintiff did not meet Listing 12.04 during the relevant time
period.
C.

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
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limitations and to determine how those limitations affect his RFC.” Id.
The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit, and there was sufficient evidence for the ALJ to make
an informed decision. The Court further notes that in determining Plaintiff’s RFC, the ALJ
specifically discussed the relevant medical records. The ALJ also discussed the medical opinions
of examining and non-examining medical professionals, as well as an “other source” medical
opinion, 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). Based on
the record as a whole, the Court finds substantial evidence to support the ALJ’s RFC
determination for the relevant time period.
D.

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
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is primarily a matter for the ALJ to decide.” Edwards, 314 F.3d at 966.
Based on the record as a whole, the Court finds that the ALJ properly considered and
evaluated Plaintiff’s subjective complaints, including the Polaski factors; and that there is
substantial evidence to support the ALJ’s credibility findings.
E.

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 housekeeper, a mail room
clerk, an assembler, and an escort driver during the relevant time period. Pickney v. Chater, 96
F.3d 294, 296 (8th Cir. 1996)(testimony from vocational expert based on properly phrased
hypothetical question constitutes substantial evidence).
F.

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).
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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 17th day of April, 2013.

/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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