Ponder v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 14, 2014. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CIVIL NO. 12-5268
CAROLYN W. COLVIN,1 Commissioner
Social Security Administration
Plaintiff, Alvin Ponder, 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 June 8, 2010,
alleging an inability to work since May 27, 2010, due to back problems. (Tr. 115, 122, 141).
An administrative hearing was held on November 2, 2011, at which Plaintiff appeared with
counsel and testified. (Tr. 30-57).
By written decision dated December 23, 2011, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.
18). Specifically, the ALJ found Plaintiff had the following severe impairments: low back pain
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.
and allied disorders. 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. 19). The
ALJ found Plaintiff retained the residual functional capacity (RFC) to perform the full range of
light work as defined in 20 C.F.R. § 404.1567(b) and § 416.927(b). The ALJ, with the use of the
Medical-Vocational Guidelines (Grids), found Plaintiff was not disabled. (Tr. 25).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on November 9, 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. 9).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 13,14).
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 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. §§ 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 argues the following issues on appeal: 1) the ALJ erred in determining Plaintiff’s
severe impairments; 2) the ALJ erred by inserting his own opinion about what medical treatment
Plaintiff should have undergone when assessing Plaintiff’s credibility; and 3) the ALJ erred in
using the Grids.
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 he suffers from a medically-severe impairment at
Step Two. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.2000).
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”). The Court finds the ALJ did not commit reversible error in setting forth Plaintiff’s
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
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. With regard to
Plaintiff’s back pain, the medical evidence revealed that Plaintiff complained of back pain and
was noted to be using a cane to ambulate in the Northwest Arkansas Free Health Center progress
notes in October and December of 2010, and February of 2011. (Tr. 203, 210, 212). However,
when Plaintiff sought emergency room treatment on June 14, 2011, Plaintiff was noted to have
a non-tender spine with no evidence of tenderness to palpation, and normal range of motion of
the joints. (226). Plaintiff was noted to have a non-tender spine and normal range of motion on
July 17, 2011, a steady gait on August 16, 2011, and a normal gait and coordination on October
19, 2011. (Tr. 238, 251, 272). Thus, while Plaintiff may indeed experience some degree of pain
due to his back impairment, the Court finds substantial evidence of record supporting the ALJ's
finding that Plaintiff does not have a disabling back impairment. See Lawrence v. Chater, 107
F.3d 674, 676 (8th Cir. 1997) (upholding ALJ's determination that claimant was not disabled
even though she had in fact sustained a back injury and suffered some degree of pain). The
record further revealed that Plaintiff was able to drive, shop for groceries, take care of his
personal needs, watch television with his family, and attend church once a week.
Therefore, although it is clear that Plaintiff suffers with some degree of pain, he has not
established that he is unable to engage in any gainful activity. See Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000) (holding that mere fact that working may cause pain or discomfort does not
mandate a finding of disability); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993) (holding
that, although plaintiff did have degenerative disease of the lumbar spine, the evidence did not
support a finding of disabled). Neither the medical evidence nor the reports concerning his daily
activities support Plaintiff’s contention of total disability. Accordingly, the Court concludes that
substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective complaints were
not totally credible.
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.
After reviewing the entire record, the Court finds that Plaintiff’s argument is without
merit, and there was sufficient evidence for the ALJ to make an informed decision. The Court
notes that in determining Plaintiff could perform a full range of light work, the ALJ specifically
discussed the relevant medical records and Plaintiff’s subjective complaints. The ALJ also
discussed the medical opinions of examining and non-examining medical professionals, 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). Based on the record as a whole, the
Court finds substantial evidence to support the ALJ’s RFC determination for the relevant time
Use of the Medical Vocational Guidelines (Grids):
Once Plaintiff has established a prima facie case by showing an inability to perform past
relevant work, the burden of proof shifts to the Commissioner to show that Plaintiff has the
residual functional capacity to perform some other kind of work and that jobs are available in
the national economy which realistically fit his capabilities. Reed v. Sullivan, 988 F.2d 812, 815
(8th Cir. 1993). If the claimant is found to have only exertional impairments (affecting the
ability to perform physical labor), the Commissioner may meet this burden by referring to the
Grids which are fact-based generalizations about the availability of jobs for people of varying
ages, educational background, and previous work experience, with differing degrees of exertional
impairment. Foreman v. Callahan, 122 F.3d 24, 26 (8th Cir. 1997); Robinson v. Sullivan, 956
F.2d 836, 841 (8th Cir. 1992)(citations omitted). Given the Court’s finding that substantial
evidence supports the ALJ's determination that Plaintiff is capable of the full range of light work,
the Court believes the ALJ properly relied on the Grids, eliminating the need for expert
vocational testimony, in concluding that given Plaintiff's age, education, work experience, and
capacity for light work, Plaintiff was not disabled.
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 March, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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