Angst v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 19, 2014. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CIVIL NO. 13-5073
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Chad Angst, 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 6, 2011, and
July 18, 2011, respectively, alleging an inability to work since June 30, 2010, due to depression
and arthritis. (Tr. 78, 89, 216). An administrative hearing was held on March 8, 2012, at which
Plaintiff appeared with counsel and testified. (Tr. 248-271).
By written decision dated May 4, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 12).
Specifically, the ALJ found Plaintiff had the following severe impairments: a fracture of the left
ankle status post ORIF, depression, and borderline intellectual functioning. 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. 13). 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) except
the claimant is limited to simple tasks and simple instructions, and the claimant
can have only incidental contact with the general public.
(Tr. 15). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a hand packer, and a kitchen helper-dishwasher. (Tr. 21).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on February 13, 2013. (Tr. 3-6). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 7).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 12,13).
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 issue on appeal: 1) the ALJ erred in determining that
Plaintiff did not meet Listing 12.05(c); 2) the ALJ erred in determining Plaintiff could perform
other work at Step 5 of the Sequential Evaluation Process; 3) the ALJ erred in only giving partial
weight to the opinion of Dr. Stephen P. Nichols when determining Plaintiff’s RFC; and 4) the
ALJ erred in not finding Plaintiff’s schizoid personality disorder to be a severe impairment. The
Court notes Plaintiff’s arguments will be discussed out of sequence below.
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
Listing Impairment 12.05C:
Under Listing 12.05C, a claimant suffers from the required severity of mental retardation
if he shows a valid verbal, performance, or full scale IQ of 60 through 70, with an onset prior
to age 22, and a physical or other mental impairment imposing an additional and significant
work-related limitation of function. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C; McNamara
v. Astrue, 590 F.3d 607, 611 (8th Cir. 2010). When trying to establish that the Listing 12.05C
requirements have been met, the claimant must also meet the requirements in the introductory
paragraph of Listing 12.05. Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006). Those
requirements clearly include demonstrating that the claimant suffered “deficits in adaptive
functioning” and that those deficits “initially manifest during the developmental period [before
age 22].” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05; Cheatum v. Astrue, 388 Fed. Appx. 574,
576 (8th Cir. 2010)(citations omitted).
The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit, and that 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 12.05C.
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 examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and his medical records
when he determined Plaintiff could perform medium work with limitations. The Court notes that
in determining Plaintiff’s RFC, the ALJ discussed the medical opinions of examining and nonexamining medical professionals, including the opinions of Drs. John Gaston, Stephen P.
Nichols, Tad Michael Morgan, Christal Janssen, Bill F. Payne, Sharon Keith, and Kay M. Gale,
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).
With regard to Dr. Nichols’ opinion that Plaintiff had a schizoid personality disorder, the
ALJ noted that he did not give this diagnosis weight as the record revealed Plaintiff was able to
maintain outside employment for seventeen years, to meet and marry his wife, to assist in the
daily care of his children, to shop, to go out alone, to attend medical appointments, and to go out
to dinner occasionally with his family. This determination is further supported by the opinions
of Drs. Janssen and Gale, both non-examining medical consultants, who after reviewing the
evaluation of Dr. Nichols and the record, opined Plaintiff would be able to perform unskilled
work. The ALJ also noted that Dr. Gaston indicated that Plaintiff and his wife reported some
improvement with his anger with the use of medication. (Tr. 159).
As for Plaintiff’s physical limitations, while the non-examining medical consultants
opined Plaintiff could perform light work, the ALJ set forth his reasoning for not giving full
weight to these opinions. The ALJ also specifically addressed the weight that was given to Dr.
Morgan’s assessment. In declining to give full weight to these medical opinions, the ALJ noted
that Plaintiff testified that his ankle impairment did not keep him from working, rather he was
unable to work due to his depression and inability to get along with others. (Tr. 257). The ALJ
also pointed out that Plaintiff’s ankle injury occurred in 2004, and that Plaintiff was able to
maintain his employment which included frequently lifting up to twenty-five pounds and
occasionally lifting one hundred pounds or more, until he had a disagreement with his father in
June of 2010. (Tr. 105). The record revealed that in April of 2011, Plaintiff saw Dr. Gaston with
complaints of depression and while he reported chronic ankle pain a physical examination was
deferred. (Tr. 214). The record further revealed that Plaintiff took only over-the-counter
medication for his alleged disabling ankle and left shoulder pain. (Tr. 258). Based on the record
as a whole, the Court finds substantial evidence to support the ALJ’s RFC determination for the
relevant time period.
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, 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. The Court notes that in a Function Report dated April
18, 2011, Plaintiff reported that he took his children to and from school; that he helped his
disabled wife with whatever she needed; that he did laundry and sometimes mowed; that he
could drive; that he could shop for groceries; and that he could attended medical appointments.
(Tr. 94-101). Plaintiff’s wife also completed a Function Report - Third Party on April 19, 2011,
and indicated that Plaintiff prepared meals; took their children to and from school; took care of
his personal needs, except for shaving; did some laundry; and mowed over a period of days. (Tr.
The ALJ further noted that Plaintiff testified that he first received unemployment benefits
in October of 2010, and drew unemployment for about one year. (Tr. 254-255). The Court notes
“[a] claimant may admit an ability to work by applying for unemployment compensation benefits
because such an applicant must hold himself out as available, willing and able to work.” Jernigan
v. Sullivan, 948 F.2d 1070, 1074 (8th Cir.1991).
The Court would also note that while Plaintiff indicated that he did not seek the
recommended mental health 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 further revealed that Plaintiff was able to come up with the funds
to support his smoking habit throughout the relevant time period.
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, he has
not established that he is unable to engage in any gainful activity. Accordingly, the Court
concludes that substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective
complaints were not totally credible.
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 hand packer, and a
kitchen helper-dishwasher. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from
vocational expert based on properly phrased hypothetical question constitutes substantial
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 19th day of June, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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