Clark v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 14, 2014. (adw)

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

PLAINTIFF

v.

CIVIL NO. 12-5245

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Josh Clark, 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 claim for supplemental security income (SSI) benefits under the provisions of Title
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 application for SSI on January 4, 2010, alleging an

inability to work due to spinal bifida and diabetes. (Tr. 105, 132). An administrative hearing
was held on August 12, 2011, at which Plaintiff appeared with counsel and testified. (Tr. 20-43).
By written decision dated October 26, 2011, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 11).
Specifically, the ALJ found Plaintiff had the following severe impairments: a history of spinal
surgery, diabetes mellitus, hypertension, and obesity. However, after reviewing all of the
evidence presented, the ALJ determined that Plaintiff’s impairments did not meet or equal the

1

Carolyn W. Colvin, 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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level of severity of any impairment listed in the Listing of Impairments found in Appendix I,
Subpart P, Regulation No. 4. (Tr. 12). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to:
perform the full range of sedentary work as defined in 20 CFR 416.967(a).
Specifically, the claimant is able to occasionally lift and/or carry ten pounds and
frequently lift and/or carry up to ten pounds. He is able to stand and/or walk at
least two hours out of an eight-hour workday and sit at least six hours out of an
eight-hour workday, all with normal breaks.
(Tr. 12). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a new account interviewer, and a food and beverage order clerk. (Tr. 16).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on October 12, 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. 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 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
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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 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. § 416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
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in light of his residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42
(8th Cir. 1982); 20 C.F.R. § 416.920.
III.

Discussion:
Plaintiff argues the following issue on appeal: 1) the ALJ failed to fully and fairly

develop the record; 2) the ALJ erred in determining Plaintiff’s RFC; and 3) the hypothetical
proposed to the vocational expert did not encompass all of Plaintiff’s impairments.
A.

Fully and Fairly Develop the Record:

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). Plaintiff argues that the ALJ failed to properly question Plaintiff about
a referral to a rehabilitation facility, Plaintiff’s body sores, and Plaintiff’s alleged incontinence
during the administrative hearing. The Court would point out that Plaintiff’s counsel had the
opportunity to question Plaintiff, as well as a vocational expert regarding these issues but
apparently chose to ask the vocational expert only about a possible incontinence issue.
After reviewing the administrative record, it is clear that 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).
B.

RFC Assessment:

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
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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 he
determined Plaintiff could perform sedentary work. Plaintiff's capacity to perform this work is
also 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). Accordingly, the Court finds there is
substantial evidence of record to support the ALJ’s RFC findings.
C.

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 his pain; (3) precipitating and aggravating
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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 during the relevant time period, Plaintiff was able to work twenty-eight to thirty-four
hours a week as a cashier or greeter. Plaintiff was also able to use public transportation when
he needed to get to work. In assessing Plaintiff’s credibility, the ALJ further noted that Plaintiff
failed to follow his medical providers instructions on eating a more healthy diet and exercising.
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, or hospitals
does not support plaintiff’s contention of financial hardship).
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, he has
not established that he was unable to engage in any gainful activity during the relevant time
period.

Accordingly, the Court concludes that substantial evidence supports the ALJ’s

conclusion that Plaintiff’s subjective complaints were not totally credible.
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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 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 as a new account interviewer,
and a food and beverage order clerk.

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 14th day of February, 2014.

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

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