Johnson v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 26, 2015. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CINDY A. JOHNSON
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
Plaintiff, Cindy A. Johnson, 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 claim 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 application for DIB on April 15, 2011, alleging an
inability to work since March 6, 2011, due to depression, asthma, chronic bronchitis, digestive
problems, “SMA,” Lupus, and a hiatal hernia. (Tr. 120-126, 142, 144). An administrative
hearing was held on May 31, 2012, at which Plaintiff appeared with counsel and testified. (Tr.
By written decision dated September 6, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe - asthma and
depression. (Tr. 13). 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 residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) except avoid
extreme cold, heat, wetness and humidity; has the ability to perform basic
cognitive tasks required for basic work activities.
(Tr. 15). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff could perform her past relevant work as a vocational education
teacher and tractor trailer truck driver. (Tr. 17).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on December 26, 2013. (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. 11, 12).
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. Barnard, 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. Barnard, 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)(D). 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 had engaged in substantial
gainful activity since filing her 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 her 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 her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following issues in this matter: 1) The ALJ erred in failing to evaluate
Plaintiff’s amended contention that she was not currently disabled but had been disabled for a
closed period of disability; and 2) The ALJ erred in his finding that Plaintiff could return to her
past relevant work as a truck driver and teacher, where the truck driver job did not meet the
statutory definition of past relevant work, and both DOT job titles require SVP levels in excess
of unskilled work. (Doc. 11).
Closed Period of Disability:
Plaintiff contends that she made clear in her pleadings and testimony that she had
returned to work the month prior to the hearing and it was her hope to continue working, and that
this is a petition for a closed period of disability. Plaintiff argues that her alleged onset date of
disability was March 6, 2011, and her ending date was April 16, 2012, which meets the 12
month duration requirement. Plaintiff argues that it is not harmless error for the ALJ to have
ignored this allegation, and that without the ALJ’s discussion of the closed period allegation,
there is no indication but what he was considering Plaintiff’s current medical condition at the
time of the hearing to be evidence of her ability to perform work.
Plaintiff’s argument is based on speculation, and is contradicted by the ALJ’s discussion
of Plaintiff’s medical treatment and conditions which existed during the entire period, dating
from March 6, 2011, to September 6, 2012, the date of the decision. (Tr. 16-18). The ALJ’s
finding that Plaintiff was not disabled during the entire relevant time period requires the
conclusion that she could not have been found disabled for her proposed closed period.
Accordingly, Plaintiff’s argument is without merit.
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 determining Plaintiff’s RFC, the ALJ considered and discussed Plaintiff’s medical
records, the physician’s opinions and weight he gave to the opinions, and Plaintiff’s allegations
(Tr. 15-17). The ALJ also discussed Plaintiff’s daily activities, noting that she
shopped, drove, handled personal finances independently, interacted with others on a daily basis,
and attended church. (Tr. 16). Even during the period Plaintiff claims she was disabled, she
attended graduation of her younger daughter in Oklahoma. (Tr. 338). In addition, in her
Function Report-Adult - dated September 1, 2011, Plaintiff indicated that she prepared
sandwiches daily, folded laundry, made the bed, straightened the kitchen and bedroom, washed
dishes, cooked her meals, and vacuumed when she was not feeling sick. (Tr. 172).
By March 12, 2012, a CT Scan was performed of Plaintiff’s abdomen and pelvis. (Tr.
396). It was noted that Plaintiff was previously seen the prior year for a small 1 cm.
Pseudoaneurysm. Plaintiff was complaining that she still continued to have the same discomfort
with epigastric pain and loose bowel movements soon after eating. (Tr. 402). A CTA showed
resolution of her pseudoaneurysm, and no findings of any aneurysmal dilation of the superior
mesenteric artery at all. (Tr. 402). She was found to have 5/5 muscle strength bilaterally, and the
doctor was going to try her on some Prevacid. (Tr. 402).
The ALJ also assessed the weight he gave to the physicians’ opinions, both examining
and non-examining. He gave great weight to the opinion of Dr. C.R. Magness, who diagnosed
Plaintiff with depression and asthma. (Tr. 17). He gave great weight to the opinion of Dr. Terry
Efird, who opined that Plaintiff could perform basic cognitive tasks required for basic work like
activities. (Tr. 17). He gave some weight to the opinion of non-examining consultant, Dr.
Ronald Crow, who completed a Physical RFC Assessment of Plaintiff on July 10, 2011, and
found the medical evidence supported light work. (Tr. 300).
Based upon the foregoing, as well as the record as a whole, the Court finds there is
substantial evidence to support the ALJ’s RFC determination and the weight he gave the
opinions of the physicians.
Whether Plaintiff Could Return to Past Relevant Work:
Plaintiff argues that the ALJ erred in his finding that Plaintiff could return to past
relevant work as a truck-driver and teacher. In her brief, Defendant concedes the ALJ erred in
finding Plaintiff could return to her past relevant work as a truck-driver, as said position involves
medium level work. However, as noted by Defendant, said error is harmless, as Plaintiff’s past
relevant work as a teacher is sufficient to satisfy the requirements of step four. See Benskin v.
Bowen, 830 F.2d 878, 883 (8th Cir. 1987)(“An arguable deficiency in opinion-writing technique
is not a sufficient reason for setting aside an administrative finding where, as here, the deficiency
probably had no practical effect on the outcome of the case.”).
The medical evidence supports the ALJ’s finding that Plaintiff is able to perform light
exertional level work, except that she must avoid extremes of cold, heat, wetness and humidity.
In addition, Dr. Efird opined that Plaintiff retained the ability to perform the basic cognitive
tasks required for basic work activities. (Tr. 305). Accordingly, Plaintiff’s argument relating to
the skill level of the jobs is without merit.
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 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. 2003).
Based upon the record as a whole, the Court finds there is substantial evidence to support
the ALJ’s credibility analysis.
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 26th day of May, 2015.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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