Wert v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 30, 2014. (src)

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

JAMES RAY WERT

PLAINTIFF

v.

CIVIL NO. 13-5096

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, James Ray Wert, 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) 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 his current application for DIB on October 16, 2009, alleging

an inability to work since June 15, 2008, due to fused lumbar discs, a neck injury, and a right
shoulder injury. (Tr. 104, 125). An administrative hearing was held on October 21, 2011, at
which Plaintiff appeared with counsel and testified. (Tr. 25-49).
By written decision dated January 23, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 15).

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Specifically, the ALJ found Plaintiff had the following severe impairments: status post fusion
at L5-S1 and status post right clavicle fracture. 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. 16). The ALJ found Plaintiff retained the residual functional capacity
(RFC) to:
occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds;
stand and/or walk for at least 6 hours out of an 8-hour workday; sit for at least 6
hours out of an 8-hour workday; all with normal breaks; and avoid work above
shoulder level...
(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a counter clerk; and an office helper. (Tr. 21).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on March 11, 2013. (Tr. 1-4). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 8). 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.
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

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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
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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. 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.
III.

Discussion:
Plaintiff argues the following issue on appeal: 1) the ALJ failed to consider all of

Plaintiff’s impairments in combination; 2) the ALJ erred in his analysis and credibility findings
in regard to Plaintiff’s subjective complaints of pain; 3) the ALJ erred in finding that Plaintiff
retained the RFC to perform less than a full range of light work; and 4) the ALJ failed to fully
and fairly develop the record.
A.

Combination of Impairments:

Plaintiff argues that the ALJ erred in failing to consider all of the claimant’s impairments
in combination.
The ALJ stated that in determining Plaintiff’s RFC, he considered “all of the claimant’s
impairments, including impairments that are not severe.” (Tr. 14). 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. 16). Such language demonstrates the ALJ considered
the combined effect of Plaintiff’s impairments. Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994).
B.

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
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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
23, 2010, Plaintiff indicated that he was able to take care of his personal needs; to do a little
house and yard work with breaks; to prepare simple meals; to do minor household repairs; to
drive; and to shop for food and groceries. (Tr. 134-141). Plaintiff also reported he was able to
talk on the telephone and use e-mail; to attend barbeques; to visit with his family; to attend
football games; and to attend church. (Tr. 138).
With regard to Plaintiff’s alleged mental impairment, it is noteworthy that Plaintiff did
not allege a disabling mental impairment in his application for benefits. See Dunahoo v. Apfel,
241 F.3d 1033, 1039 (8th Cir. 2001) (failure to allege disabling mental impairment in application
is significant, even if evidence of depression is later developed). The record also failed to
demonstrate that Plaintiff sought on-going and consistent treatment from a mental health
professional during the relevant time period. See Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir.
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2001) (holding that lack of evidence of ongoing counseling or psychiatric treatment for
depression weighs against plaintiff’s claim of disability). In making a disability determination
the ALJ determined Plaintiff’s alleged mental impairments to be non-severe, and found that these
alleged impairments caused Plaintiff to have a mild restriction of activities of daily living, mild
difficulties in maintaining social functioning, mild difficulties with maintaining concentration,
persistence or pace, and no episodes of decompensation.
The ALJ further noted that Plaintiff testified at the October 21, 2011, administrative
hearing that he was receiving unemployment benefits and expected to receive said benefits for
at least six more weeks. (Tr. 31). 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 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 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 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
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mandate a finding of disability). 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.
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
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 light work with limitations. 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.
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Plaintiff's capacity to perform light work with limitations 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.
D.

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).
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 him from performing work as a counter clerk; and an

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office helper. 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 30th day of May, 2014.

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

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