Foy v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 8, 2015. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JAMES E. FOY, III,
CIVIL NO. 13-5304
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, James E. Foy, III, 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 application for DIB on October 18, 2010, alleging
an inability to work since October 11, 2010, due to a back injury, a hernia, a heart attack,
shortness of breath. (Tr. 130). An administrative hearing was held on May 22, 2012, at which
Plaintiff appeared with counsel. (Tr. 32-54).
By written decision dated August 30, 2012, the ALJ found Plaintiff was not disabled
prior to April 25, 2012, but that Plaintiff became disabled on that date and remained disabled
through the date of the decision. (Tr. 17). The ALJ found since the alleged onset date of
disability, October 11, 2010, Plaintiff had an impairment or combination of impairments that
were severe. (Tr. 19).
Specifically, the ALJ found Plaintiff had the following severe
impairments: chronic obstructive pulmonary disease (COPD), and a disorder of the lumbar
spine. (Tr. 19). However, after reviewing all of the evidence presented, the ALJ determined that
since the alleged onset date, 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. 21). The ALJ found since his alleged onset date, Plaintiff retained the
residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant
can occasionally climb, balance, stoop, kneel, crouch, and crawl; and the
claimant must avoid even moderate exposure to fumes, odors, dusts, gasses, poor
ventilation, and similar environments.
(Tr. 21). With the help of a vocational expert, the ALJ determined that prior to April 25, 2012,
Plaintiff could perform work as an assembler, an addressing clerk, and as an
inspector/checker/sorter. (Tr. 27). The ALJ determined that on April 25, 2012,1 Plaintiff’s age
category changed rendering him disabled under Medical-Vocational Guidelines.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on October 25, 2013. (Tr. 1-6). 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. (Doc. 11; Doc. 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.
The Court notes Plaintiff’s date of birth is October 25, 1962, not April 25, 1962. (Tr.
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 issues on appeal: 1) the ALJ erred in failing 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 a limited range of sedentary work during the relevant time
period; and 4) the ALJ failed to fully and fairly develop the medical record.
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
Combination of Impairments:
Plaintiff argues that the ALJ erred in failing to consider all of the claimant’s impairments
The ALJ stated that in determining Plaintiff’s RFC, he considered “all of the claimant’s
impairments, including impairments that are not severe.” (Tr. 19). 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. 21). Such language demonstrates the ALJ
considered the combined effect of Plaintiff’s impairments. Hajek v. Shalala, 30 F.3d 89, 92 (8th
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, 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
completed a Function Report on January 23, 2011, wherein he indicated that he was able to take
care of his personal needs noting a difficulty with putting on pants and shoes; to prepare simple
meals; to do light household chores; to usually take two to three short walks a day; to use public
transportation; to shop for groceries and household items; to pay bills; to go to the library; and
to spend time with others almost every day. (Tr. 149-156). Plaintiff indicated no condition
affecting the use of his hands, reaching, climbing stairs, seeing, hearing, understanding, or his
memory. (Tr. 154).
A review of the record reveals that Plaintiff was diagnosed and treated for COPD. While
Plaintiff’s treating physician recommended that he stop smoking, the record revealed that
Plaintiff continues to smoke daily. See Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997)
(noting that a failure to follow prescribed treatment may be grounds for denying an application
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, he has
not established that he was unable to engage in any gainful activity during the time period in
question. Accordingly, the Court concludes that substantial evidence supports the ALJ’s
conclusion that Plaintiff’s subjective complaints were not totally credible.
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 determining that Plaintiff maintained the RFC to perform sedentary work with
limitations, the ALJ considered the medical assessments of the examining and non-examining
agency medical consultants; Plaintiff’s subjective complaints; and his medical records. The
Court notes that in determining Plaintiff’s RFC, the ALJ discussed the medical opinions of
examining and non-examining medical professionals, including the opinions of Drs. C.R.
Magness, Gary L. Templeton, Karmen Hopkins, and Sharon Keith, 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). The Court notes that in September 20, 2011, Dr. Jamon
E. Pruitt noted that Plaintiff’s chief complaint was chest discomfort with shortness of breath.
(Tr. 253). At that time, Plaintiff denied experiencing fatigue or muscle cramps and was noted
to ambulate without difficulty. (Tr. 255).
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.
Accordingly, the Court finds there is substantial evidence of record to support the ALJ’s RFC
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 an assembler, an
addressing clerk, and as an inspector/checker/sorter, during the time period in question. Pickney
v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from vocational expert based on properly
phrased hypothetical question constitutes substantial evidence).
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).
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 8th day of January, 2015.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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