Clary v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 25, 2014. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TIMOTHY JAY CLARY
CIVIL NO. 13-5020
CAROLYN W. COLVIN,1 Commissioner
Social Security Administration
Plaintiff, Timothy Jay Clary, 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 April 16, 2010,
alleging an inability to work since January 18, 2001,2 due to a lumbar disc bulge at L4-L5. (Tr.
119, 123, 169). For DIB purposes, Plaintiff maintained insured status through June 30, 2007.
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.
The ALJ noted that Plaintiff’s counsel indicated in a brief that Plaintiff’s amended alleged onset date was
September 2, 2004, due to the denial of a previous application for benefits. (Tr. 9, 153).
(Tr. 9, 142). An administrative hearing was held on August 8, 2011, at which Plaintiff appeared
with counsel and testified. (Tr. 23-43).
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: degenerative disc
disease of the lumbar spine. 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. 12). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c). He is
able to occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25
pounds, stand and/or walk at least 6 hours out of an 8-hour workday, and sit at
least 6 hours out of an 8-hour workday, all with normal breaks, occasionally
stoop or crouch, no more than frequently climb stairs, ramps, balance, kneel, or
(Tr. 12). With the help of a vocational expert, the ALJ determined Plaintiff could perform his
past relevant work as a spray painter, as well as other work as a janitor and a warehouse worker.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on November 29, 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. 10).
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 failing to consider all
of Plaintiff’s impairments in combination; 2) the ALJ erred in the analysis and credibility
findings with regard to Plaintiff’s subjective complaints of pain; 3) the ALJ erred in determining
Plaintiff’s RFC; 4) the ALJ erred in determining Plaintiff could perform his past relevant work;
and 5) the ALJ failed to fully and fairly develop the record.
In order to have insured status under the Act, an individual is required to have twenty
quarters of coverage in each forty-quarter period ending with the first quarter of disability. 42
U.S.C. § 416(i)(3)(B). Plaintiff last met this requirement on June 30, 2007. Regarding
Plaintiff’s application for DIB, the overreaching issue in this case is the question of whether
Plaintiff was disabled during the relevant time period of September 2, 2004, his amended alleged
onset date of disability, through June 30, 2007, the last date he was in insured status under Title
II of the Act.
In order for Plaintiff to qualify for DIB he must prove that, on or before the expiration
of his insured status he was unable to engage in substantial gainful activity due to a medically
determinable physical or mental impairment which is expected to last for at least twelve months
or result in death. Basinger v. Heckler, 725 F.2d 1166, 1168 (8th Cir. 1984). Records and
medical opinions from outside the insured period can only be used in “helping to elucidate a
medical condition during the time for which benefits might be rewarded.” Cox v. Barnhart, 471
F.3d 902, 907 (8th Cir.2006) (holding that the parties must focus their attention on claimant's
condition at the time she last met insured status requirements).
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, he 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. 12). 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:
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. A review of the record
reveals that during the relevant time period, Plaintiff was able to help with household chores;
watch his nephew when his parents went to Little Rock for doctor appointments; take care of his
personal hygiene, noting he sometimes lost his balance when putting on pants and shoes; prepare
simple meals; go fishing, noting a friend had taken him four times over the summer. (Tr. 145152).
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). The record revealed that Plaintiff
was also able to come up with the funds to support his smoking habit. (Tr. 289).
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
Accordingly, the Court concludes that substantial evidence supports the ALJ’s
conclusion that Plaintiff’s subjective complaints were not totally credible.
RFC Assessment and Treating and Examining Medical Opinions:
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 he
determined Plaintiff could perform medium work with limitations. A review of the evidence
revealed that in July of 2005, Dr. Jeffrey E. Coe opined that Plaintiff could perform medium
level work. (Tr. 214). More recent records revealed that in October of 2008, Dr. Cyril A. Raben
noted Plaintiff had a normal gait and station, had pain and tenderness on palpation of the spine,
ribs and pelvis with a marked reduction in range of motion; normal sensation; and a decreased
quadriceps deep tendon reflex. (Tr. 289). In November of 2009, Dr. D. Luke Knox noted
Plaintiff had a normal motor exam up to and including heel-and-toe walking without evidence
of atrophy, but restricted range of motion of the lumbar spine. The ALJ noted that considerable
weight was given to the May and June of 2010 opinions of Drs. Denise Greenwood and Bill F.
Payne, both non-examining medical consultants, who both indicated Plaintiff could perform
medium work. (Tr. 311, 319). Based on the record as a whole, the Court finds substantial
evidence to support the ALJ’s RFC determination for the relevant time period.
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 during the relevant time period Plaintiff's impairments did not preclude him from performing
his past relevant work as a spray painter, as well as other work as a janitor and a warehouse
worker. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from vocational expert
based on properly phrased hypothetical question constitutes substantial evidence).
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).
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 25th day of February, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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