Willis v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 11, 2014. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
KENDALL E. WILLIS
CIVIL NO. 13-5123
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Kendall E. Willis, 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 claim for supplemental security income (SSI) benefits under the
provisions of Title 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 application for SSI on February 16, 2011, alleging
an inability to work due to bipolar disorder, schizophrenia, anxiety, depression, hearing loss, and
bleeding ulcers. (Tr. 110, 145). An administrative hearing was held on February 23, 2012, at
which Plaintiff appeared with counsel and testified. (Tr. 25-58).
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. 13).
Specifically, the ALJ found Plaintiff had the following severe impairments: an adjustment
disorder, with mixed anxiety and depressed mood; and a personality disorder, not otherwise
specified. 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. 14). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: he is limited to work where interpersonal contact is
incidental to the work performed and does not involve contact with the general
public, the complexity of tasks is learned and performed by rote, with few
variables and use of little judgment, and the supervision required is simple,
direct, and concrete.
(Tr. 15). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a machine packager, a hand packager, a small product assembler, and a bench assembler. (Tr.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing evidence submitted by Plaintiff, denied that request on April 24, 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, 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. § 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. § 416.920.
Plaintiff argues the following issue on appeal: 1) the ALJ erred in failing to fully and
fairly develop the record; 2) the ALJ erred in failing to find Plaintiff’s hearing loss to be a severe
impairment; and 3) the ALJ erred in determining Plaintiff’s RFC.
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).
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”). With regard to Plaintiff’s hearing loss, the record revealed that Plaintiff sometimes
used a hearing aide in his right ear, but Plaintiff did not need amplification on his telephone. (Tr.
141-143, 209). The ALJ also noted that Plaintiff did not exhibit any difficulty hearing while
giving his testimony at the administrative hearing. (Tr. 13). The Court finds the ALJ did not
commit reversible error in setting forth Plaintiff’s severe impairments.
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 work at all exertional levels with nonexertional
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. Plaintiff's capacity to perform this level of 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). Accordingly, the Court finds there is substantial
evidence of record to support the ALJ’s RFC findings.
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 Eighth Circuit has observed, “Our touchstone is that [a claimant’s]
credibility is primarily a matter for the ALJ to decide.” Edwards, 314 F.3d at 966.
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. A review of the record revealed that Plaintiff was able
to spend time walking dirt roads looking for scrap and cans. (Tr. 35). In April of 2011, Plaintiff
reported to Dr. Terry L. Efird, a consultative examiner, that he was able to drive unfamiliar
routes; to shop independently; to handle his personal finances adequately; to perform most
activities of daily living adequately; and to spend time with his girlfriend. (Tr. 193). Plaintiff
also reported to Dr. Efird that he preferred to spend time in the country in a more isolated
The Court notes 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 during the relevant
With regard to the testimony of Plaintiff's mother, the ALJ properly considered this
evidence but found it unpersuasive. This determination was within the ALJ's province. See
Siemers v. Shalala, 47 F.3d 299, 302 (8th Cir. 1995); Ownbey v. Shalala, 5 F.3d 342, 345 (8th
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 machine packager, a
hand packager, a small product assembler, and a bench assembler. 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 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 11th day of August, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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