Cooley v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 12, 2015. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TONYA ELAINE COOLEY
CIVIL NO. 13-5307
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Tonya Elaine Cooley, 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 her 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).
Plaintiff protectively filed her current application for DIB on August 19, 2011, alleging
an inability to work since June 1, 2008, due to a thyroid problem, Graves Disease, “Reno’s”
Disease, anxiety, depression, panic attacks, borderline personality disorder, obsessiveness, and
Lyme Disease. (Tr. 168, 212). For DIB purposes, Plaintiff maintained insured status through
December 31, 2010. (Tr. 20, 176). An administrative video hearing was held on July 25, 2012,
at which Plaintiff appeared with counsel and testified. (Tr. 62-118).
By written decision dated October 3, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 22).
Specifically, the ALJ found Plaintiff had the following severe impairments: hypothyroidism;
history of Lyme disease; depressive disorder; and anxiety disorder. 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. 23). The ALJ found that through the date last
insured, Plaintiff retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) except that she could
only do work where interpersonal contact is incidental to the work performed,
the complexity of tasks is learned and performed by rote with few variables and
little judgment involved and the supervision required is simple, direct and
(Tr. 25). With the help of a vocational expert, the ALJ determined that through the date last
insured, Plaintiff could perform work as a clerical worker, and a machine tender. (Tr. 29).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on November 1, 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. 5).
Both parties have filed appeal briefs, and the case is now ready for decision. (Doc. 15; Doc. 17).
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 her disability by establishing a physical or mental disability that has lasted at least
one year and that prevents her 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 her disability, not simply her 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 her 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 her 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 her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42
(8th Cir. 1982); 20 C.F.R. § 404.1520.
Plaintiff argues the following issues on appeal: 1) the ALJ erred in failing to give due
consideration to Plaintiff’s medically documented Raynaud’s Syndrome and the limitations
caused by Raynaud’s in combination with her other impairments in assessing her residual
functional capacity, pursuant to SSR 96-8P; 2) the ALJ erred in his assessment of the claimant’s
RFC which relied upon an inadequate hypothetical that was silent regarding the claimant’s
limitations in the areas of concentration, persistence and pace; and 3) the Commissioner failed
to identify jobs that currently exist in significant numbers in the national economy; and,
therefore failed to meet her burden at step five.
In order to have insured status under the Act, an individual is required to have twenty
quarters of coverage in each forty-quarter period ending with the first quarter of disability. 42
U.S.C. § 416(i)(3)(B). Plaintiff last met this requirement on December 31, 2010. Regarding
Plaintiff’s application for DIB, the overreaching issue in this case is the question of whether
Plaintiff was disabled during the relevant time period of June 1, 2008, her alleged onset date of
disability, through December 31, 2010, the last date she was in insured status under Title II of
In order for Plaintiff to qualify for DIB she must prove that, on or before the expiration
of her insured status she was unable to engage in substantial gainful activity due to a medically
determinable physical or mental impairment which is expected to last for at least twelve months
or result in death. Basinger v. Heckler, 725 F.2d 1166, 1168 (8th Cir. 1984). Records and
medical opinions from outside the insured period can only be used in “helping to elucidate a
medical condition during the time for which benefits might be rewarded.” Cox v. Barnhart, 471
F.3d 902, 907 (8th Cir.2006) (holding that the parties must focus their attention on claimant's
condition at the time she last met insured status requirements).
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 she 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. 21). 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. 23). 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 her pain; (3) precipitating and aggravating factors; (4) dosage,
effectiveness, and side effects of her 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 after Plaintiff’s insured status had expired Plaintiff indicated that she was able to
take care of her personal needs; to perform some household chores; to work part-time for her
spouse performing clerical work; to help take care of her grandmother with help; to drive; to
shop; to take pictures of her family at family gatherings; to spend time with others; and to
correspond by telephone or computer. There is nothing in the record to suggest that Plaintiff’s
impairments were any worse during the relevant time period.
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she
has not established that she 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.
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 her 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 finding Plaintiff able to perform sedentary work with limitations, the ALJ considered
Plaintiff’s subjective complaints, the medical records of her treating and examining physicians,
and the evaluations of the non-examining medical examiners. Plaintiff's capacity to perform this
level of work is supported by the fact that Plaintiff's examining physicians placed no restrictions
on her activities that would preclude performing the RFC determined during the relevant time
period. See Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (lack of physician-imposed
restrictions militates against a finding of total disability). As noted by the ALJ, the record
reveals that Plaintiff had a worsening of her mental impairments in late July of 2011, almost
eight months after the expiration of her insured status. After reviewing the entire transcript, the
Court finds substantial evidence supporting the ALJ’s RFC determination for the time period
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 testimony constitutes substantial evidence supporting the ALJ's conclusion
that prior to the expiration of her insured status, Plaintiff's impairments did not preclude her from
performing work as a clerical worker, and a machine tender. Pickney v. Chater, 96 F.3d 294,
296 (8th Cir. 1996)(testimony from vocational expert based on properly phrased hypothetical
question constitutes substantial evidence).
Whether Jobs Listed Can Be Found In Significant Numbers:
In response to the ALJ’s hypothetical question, the vocational expert testified work
existed in the national economy consistent with the limitations found by the ALJ. (Tr. 105).
The vocational expert testified that at the sedentary level, the hypothetical person would be able
to perform basic unskilled clerical worker jobs. (Tr. 105). The vocational expert gave one
example Dictionary of Occupational Titles (DOT) # 249.587-018, noting 580 jobs in the state
of Arkansas, and 78,000 jobs in the national economy. (Tr. 105). The vocational expert testified
that the hypothetical person could also perform machine tender jobs. (Tr. 106). The vocational
expert gave one example, DOT # 692.685-266, noting 225 jobs in the state of Arkansas, and
16,500 in the national economy. (Tr. 106). The vocational expert also testified her testimony
was consistent with the DOT. (Tr. 107).
Plaintiff believes the two examples of jobs listed by the vocational expert are obsolete.
Plaintiff argues relying on the DOT compromises the entire disability adjudication system
because it is outdated. She suggests the SSA should instead use the Occupational Information
Network (“O–NET”), a database compiled and continually updated by the Department of Labor.
(Pl. Br. 9-10). Plaintiff did not raise her argument that these jobs were obsolete before the ALJ,
and O–NET was not referenced in the record.
As Plaintiff points out, the Department of Labor no longer maintains or publishes the
DOT, which was last updated in 1991, and O-NET is a more current source of occupational
information. See Jordan v. Astrue, 2009 WL 3380979, at *3 n. 1 (D.Neb. Oct. 21, 2009)(citing
67 Fed.Reg. 51752–01). The SSA, however, still relies “primarily on the DOT for information
about the requirements of work in the national economy” to make a disability determination.
SSR 00–4p. The DOT also appears on the list of publications ALJs can use to take
administrative notice of reliable job information, while O–NET is not listed. See C.F.R. §
404.1566(d)(1)-(5). The DOT, despite its age, has not been replaced by O-NET. More
importantly, O-NET job descriptions were not discussed at the hearing or referenced in the
record, and the Court will not independently consider the information on review. See Reinhart
v. Astrue, 2012 WL 811340, at *9 (E.D. Ark. Mar. 12, 2012) (stating an O–NET job description
that did not appear in the record would not be considered because the Court was precluded from
considering anything outside the certified transcript).
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 12th day of March, 2015.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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