Hoover v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 22, 2014. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
Plaintiff, Donald Hoover, 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) 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 October 4, 2011,
alleging an inability to work since April 13, 2011, due to two herniated discs, a pinched nerve,
and left knee problems. (Tr. 124-131, 158, 162). An administrative hearing was held on July 27,
2012, at which Plaintiff appeared with counsel and testified. (Tr. 29-56).
By written decision dated August 22, 2012, the ALJ found that Plaintiff had an
impairment or combination of impairments that were severe - discogenic back; mild diffuse
annular bulge of L5-S1 and L2-3 discs; obesity; and status post left knee arthroscopy with
debridement due to meniscus tear. (Tr. 20). 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. 20). The ALJ found Plaintiff retained the residual functional capacity
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b).
The claimant can perform occasional balancing, crouching, stooping,
kneeling, crawling, and climbing.
(Tr. 21). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff could perform his past relevant work as a construction rental and
sales clerk. (Tr. 23).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on April 5, 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. 6). 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.
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)(D). A Plaintiff must show that his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in substantial
gainful activity since filing his claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was 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
in light of his residual functional capacity (RFC). See McCoy v. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following issues on appeal: 1) The ALJ erred when he made medical
opinions that served as a basis to discredit Plaintiff; 2)The ALJ erred in his credibility findings;
3) The ALJ erred when he failed to consider Plaintiff’s obesity; and 4) The ALJ erred when he
returned Plaintiff to his past relevant work. (Doc. 10). As issues one and two deal with the ALJ’s
credibility findings, the Court will address them together.
Plaintiff argues that the ALJ made statements only a medical professional could make
regarding medical treatment or symptomatology; that the ALJ found Plaintiff only received
routine and conservative medical care despite a surgery and physical therapy; that the ALJ found
Plaintiff did not have to make frequent emergency room visits; and the ALJ did not think
Plaintiff exhibited the stigmata frequently observed in patients who suffer constant unremitting
pain. Plaintiff also argues that he has objective medical findings that he has medical impairments
that limit his return to his past relevant work on a full time basis on a sustained basis, and that
there are no inconsistencies in the medical evidence and Plaintiff’s testimony.
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 Eighth Circuit has 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.
In his decision, the ALJ noted that he considered Plaintiff’s subjective allegations, giving
careful consideration to all of the factors required under Polaski v. Heckler, 751 F.2d 943 (8th
Cir. 1984) and 20 C.F.R. §§ 404.1529 and 416.929. (Tr. 19). The ALJ also found that although
Plaintiff’s medically determinable impairments could reasonably be expected to cause the alleged
symptoms, Plaintiff’s statements concerning the intensity, persistence and limiting effects of the
symptoms were not credible to the extent they were inconsistent with his RFC assessment. (Tr.
21). The ALJ discussed the relevant medical records, including Plaintiff’s treatment subsequent
to his automobile accident of April 13, 2011. (Tr. 22). He also discussed the fact that subsequent
to Plaintiff’s knee surgery by Dr. Matthew Coker, on October 24, 2011, Plaintiff reported his
knee was doing relatively well, but he still had some numbness laterally. (Tr. 247). At that time,
Plaintiff had continued with exercises, and was progressing in his activities. (Tr. 247). Dr. Coker
reported that he wanted Plaintiff to continue the exercises and progress activities as tolerated.
(Tr. 247). Plaintiff again saw Dr. Coker on December 5, 2011, and Dr. Coker reported that he
had 10 degrees full flexion compared to the other side, but had good extension and was getting
his strength back. (Tr. 285). “As far as the knee is concerned he is doing quite well.” (Tr. 285).
As Plaintiff still had some numbness in the lateral aspect of the thigh, an MRI was performed,
which showed a musculoligamentous sprain or spasm. Dr. Coker thought it would be best for
Plaintiff to see a back specialist. (Tr. 285).
On February 14, 2012, Plaintiff was seen by Dr. Gannon B. Randolph for evaluation of
his back. Dr. Randolph noted that Plaintiff did not take any medication for the pain in his back,
and had not done true physical therapy for his back or his leg, and had not done anything for
weight control. (Tr. 284). Plaintiff was reported as having 5/5 motor strength bilateral lower
extremities, and his lumbar spine motion was very poor. (Tr. 284). Dr. Randolph diagnosed
Plaintiff with morbid obesity; discogenic back pain probably secondary to the motor vehicle
accident and obesity; and believed Plaintiff had a stretch injury to one of the nerves in his left
leg. (Tr. 284). He found no evidence of significant motor injury on the EMG, and did not find
a compressive type injury in his lumbar spine. (Tr. 284).
The ALJ discussed all of the above medical records, and gave the opinion dated October
10, 2011, from Dr. Valeria Malak, a non-examining consultant, significant weight, finding it was
consistent with the record as a whole and consistent with the records from Ozark Orthopaedic
Center. (Tr. 22). Dr. Malak opined that Plaintiff could perform light work, with the exception
that he could occasionally climb, balance, stoop, kneel, crouch, and crawl. (Tr. 273). The ALJ
also noted that with respect to Plaintiff’s back impairment, there was no evidence that surgery
was required or frequent emergency room visits were made regarding his back. He further
observed that there was no substantial evidence that Plaintiff required increasingly large doses
of narcotic medication to control pain associated with his back impairments or that Plaintiff had
a nerve root compression or neurological deficits that were reflected by motor loss, reflex loss
or sensory loss. (Tr. 23).
The Court finds, based upon the foregoing, that there is substantial evidence to support
the ALJ’s credibility findings.
Plaintiff argues that there is no evaluation by the ALJ regarding Plaintiff’s obesity. In his
decision, the ALJ noted very early in his decision that he “carefully considered the claimant’s
obesity under Social Security Ruling 02-1p, which provides that obesity is a complex, chronic
disease characterized by excessive accumulation of body fat.” (Tr. 20). He stated that he further
considered that obesity could cause limitation of function in any of the exertional functions such
as sitting, standing, walking, lifting, carrying, pushing, and pulling, and that it may also affect
the ability to do postural functions, such as climbing, balancing, stooping, and crouching. (Tr.
20). The ALJ continued:
The ability to manipulate may be affected by the presence of adipose
tissue in the hands and fingers. The ability to tolerate extreme heat,
humidity, or hazards may also be affected. The combined effects of
obesity with musculoskeletal impairments can be greater than the effects
of each of the impairments considered separately. Therefore, when
determining whether an individual with obesity has a severe impairment
(or a listing-level impairment or combination of impairments, and when
assessing a claim at other steps of the sequential evaluation process
including when assessing an individual’s residual functional capacity)
adjudicators must consider any additional and cumulative effects of
(Tr. 20). It is clear that the ALJ considered Plaintiff’s obesity in determining his ability to
function in the workplace. In fact, his RFC limits Plaintiff to occasional balancing, crouching,
stooping, kneeling, crawling, and climbing.
Accordingly, the Court finds there is substantial evidence to support the conclusion that
the ALJ considered Plaintiff’s obesity.
Plaintiff’s Ability to Return to Past Relevant Work:
At the hearing held before the ALJ, Plaintiff testified that one of his jobs was working
for a company where he had an office job where he made contracts on the computer, talked to
clients on the telephone, generated contracts, and did in-home auditing of the construction
equipment. (Tr. 37). The second part of his job was actually bringing in and taking out the
equipment, taking pictures of it, power washing the equipment, doing various maintenance on
the equipment, greasing the equipment and making sure it was full of fuel and oil, and sometimes
even delivering small pieces of equipment like a skid skier. (Tr. 37). Upon inquiry of the VE by
the ALJ, the VE indicated that the rental sales clerk position was classified as light. (Tr. 39-40).
The following dialogue took place between the ALJ and VE:
Q: In relation to the work that he had with the equipment rentals and that,
let me ask you whether any of these postural activities, in your opinion,
would be ordinarily required of someone who performed that type of job,
whether it would require more than occasional climbing to include ramps,
stairs, ladders, ropes, scaffolds; whether it would require more than
occasional balancing, and by balancing I mean balancing [INAUDIBLE]
would working at heights –
A: Yes, sir.
Q. – or something of that nature, sitting and walking across a room –
A: Yes, Your Honor.
Q: – or whether it would require more than occasional stooping, kneeling,
crouching or crawling? Would those, in your observation and opinion,
would the task that you had described as a construction rental sales clerk,
would that require greater than occasional postural activities in those
A: No, Your Honor, the climbing was considered less than occasional;
balancing less than occasional; stooping, standing with stooping to be
occasional; kneeling occasional; crouching occasional; and crawling
The ALJ found that in comparing Plaintiff’s RFC with the physical and mental demands
of the work, Plaintiff was able to perform his past work as a construction rental and sales clerk
as actually and generally performed. (Tr. 23). The Court finds that the hypothetical the ALJ
posed to the VE 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 VE’s responses to the hypothetical questions posed by the
ALJ constitute substantial evidence supporting the ALJ’s conclusion that Plaintiff’s impairments
did not preclude him from performing his past relevant work as a construction rental and sales
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).
Accordingly, having carefully reviewed the record, the Court finds substantial evidence
supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision is hereby
affirmed. The Plaintiff’s Complaint should be, and is hereby, dismissed with prejudice.
IT IS SO ORDERED this 22nd day of July, 2014.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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