Fitzgerald v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on September 5, 2014. (src)

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

TIM FITZGERALD

PLAINTIFF

v.

CIVIL NO. 13-5119

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Tim Fitzgerald, 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).
I.

Procedural Background:
The applications for DIB and SSI presently before this Court were protectively filed on

October 29, 2009, alleging an inability to work since September 26, 2009, due to degenerative
disc disease of the lower back, diabetes, ankle problems and cellulitis. (Tr. 111, 237, 241, 272,
325). An administrative hearing was held on November 18, 2010, at which Plaintiff appeared
with counsel and testified. (Tr. 24-69).

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In a written decision dated December 23, 2010, the ALJ found that Plaintiff retained the
RFC to perform light work. (Tr. 108-123). Plaintiff then requested a review of the hearing
decision by the Appeals Council
On April 24, 2012, the Appeals Council vacated the ALJ’s decision, and remanded the
case back the the ALJ for further evaluation which was to include the opportunity for Plaintiff
to have a supplemental hearing. (Tr. 127-131)
On August 16, 2012, a supplemental hearing before the ALJ was held, at which Plaintiff
appeared with counsel and testified. (Tr. 70-103). The ALJ noted that Plaintiff’s subsequent
applications were merged with his applications for benefits currently before this Court. (Tr. 74).
By written decision dated January 2, 2013, the ALJ found that Plaintiff had an
impairment or combination of impairments that were severe. (Tr. 12). Specifically, the ALJ
found Plaintiff had the following severe impairments: multilevel degenerative disc disease with
complaints of pain but without significant objective findings of impairment. 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 RFC
to perform the full range of light work. (Tr. 13). The ALJ, with the use of the MedicalVocational Guidelines (Grids), found Plaintiff was not disabled. (Tr. 18).
Plaintiff now seeks judicial review of that decision. (Doc. 1). This case is before the
undersigned pursuant to the consent of the parties. (Doc. 5). Both parties have filed appeal
briefs, and the case is now ready for decision. (Docs. 10,11).

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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
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),
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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.
III.

Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ failed to properly evaluate the

combined effects of Plaintiff’s morbid obesity and how it impaired Plaintiff’s musculoskeletal
system and his ability to work; and 2) the ALJ’s decision is not supported by substantial
evidence.
A.

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.
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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 determining that Plaintiff maintained the RFC to perform light work, the ALJ
considered the medical assessments of the examining and non-examining agency medical
consultants; Plaintiff’s subjective complaints; and his medical records. Plaintiff's capacity to
perform light work 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).
Plaintiff argues that the ALJ erred in failing to specifically consider obesity when
determining Plaintiff’s RFC. A review of the record reveals that Plaintiff did not allege obesity
as a disabling impairment when he applied for benefits. Furthermore, although Plaintiff’s
treating physicians noted Plaintiff’s weight, Plaintiff was not diagnosed with obesity, and his
treating physicians did not suggest Plaintiff’s obesity imposed any additional work-related
limitations. See Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir.2003). Also, Plaintiff did not
testify at the administrative hearings that his obesity imposed additional restrictions. Finally, in
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determining Plaintiff’s RFC, the ALJ gave weight to the opinions of both examining and nonexamining physicians who noted Plaintiff’s exogenous obesity and opined that Plaintiff could
perform activities within the RFC determined. “In light of the evidence of record, the fact that
the [ALJ's] decision does not discuss obesity as an impairment is not fatal.” See Box v. Shalala,
52 F.3d 168, 171 (8th Cir.1995). Accordingly, the Court finds there is substantial evidence of
record to support the ALJ’s RFC findings.
B.

Subjective Complaints and Credibility Analysis:

We now address the ALJ's assessment of Plaintiff's subjective complaints. 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
revealed that Plaintiff completed a Function Report on March 18, 2011, wherein he indicated that
he was able to take care of his dogs; to take care of his personal needs, noting that he used a
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shower and that he dressed slowly due to pain; to prepare simple meals; to perform household
chores such as cleaning, doing dishes, doing laundry, weeding, pruning, and raking with breaks;
to drive for short trips; to shop in stores for food, household supplies, pet supplies, and clothes;
to pay bills and count change; and to watch television and movies, read, sew, and do crafts. (Tr.
342-349). Plaintiff also reported that he was able to spend time with others, to use a computer,
to talk on the telephone, and to go to the movies periodically.
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).
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.
C.

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
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Medical Vocational Guidelines 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 Medical
Vocational Guidelines, 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.1
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 5th day of September, 2014.

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

1

As stated in Defendant’s brief, the ALJ cited Rule 202.21 in error. The Court finds the incorrect rule citation in
this case to be harmless error. Hensley v. Barnhart, 352 F.3d 353, 357 (8th Cir.2003) (holding that applying the
incorrect grid rule is harmless error when a claimant is not disabled under the proper rule)

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