Bowen v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 6, 2015. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
KENNY D. BOWEN

PLAINTIFF

V.

NO. 14-5089

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Kenny D. Bowen, 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 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).
I.

Procedural Background:
Plaintiff filed his application for DIB on August 24, 2012, alleging an inability to work

since August 17, 2012, due to depression, COPD (chronic obstructive pulmonary disorder),
blindness in right eye, deafness, and high blood pressure. (Tr. 179-181, 217, 220). An
administrative hearing was held on May 24, 2013, at which Plaintiff appeared with counsel, and
he and his wife testified. (Tr. 42-62). A supplemental hearing was held on September 6, 2013,
at which Plaintiff appeared with counsel and testified. (Tr. 63-73).
By written decision dated September 23, 2013, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe -

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COPD, hearing loss, mood disorder and anxiety disorder. (Tr. 27). 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. 28). The ALJ found Plaintiff retained the residual
functional capacity (RFC) to:
perform medium work as defined in 20 CFR 404.1567(c) except that he
cannot do work requiring excellent hearing, although he can hear well
enough to receive simple, verbal instructions spoken directly to him. He
must avoid concentrated exposure to pulmonary irritants. He can
understand, remember and carry out simple, routine and repetitive tasks.
He can respond to usual work situations, routine work changes and
supervision that is simple, direct and concrete. He can occasionally
interact with coworkers and the public.
(Tr. 30). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would not be able to perform his past relevant work, but there
were other jobs Plaintiff could perform, such as packing machine operator, press operator, and
production line assembler. (Tr. 34-35).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
considered a medical record dated after the ALJ’s decision, and denied that request on January
15, 2014. (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.
II.

Applicable Law:
This Court’s role is to determine whether the Commissioner’s findings are supported by
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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)(D). A Plaintiff must show that his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in substantial

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gainful activity since filing his 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 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 RFC. See McCoy v. Schneider, 683 F.2d 1138, 1141-42 (8th Cir.
1982); 20 C.F.R. §416.920.
III.

Discussion:
Plaintiff presents the following arguments: 1) The ALJ erred in failing to consider all of

Plaintiff’s impairments in combination; 2) The ALJ erred in his credibility findings; 3) The ALJ
erred in his RFC determination; and 4) The ALJ erred in failing to fully and fairly develop the
medical record. (Doc. 12).
A.

Consideration of Plaintiff’s Impairments in Combination:

Plaintiff contends the ALJ disregarded his allegations of hypertension, hip pain, right
knee pain, leg weakness and the vision impairment in his right eye.
Contrary to Plaintiff’s argument, the ALJ specifically addressed Plaintiff’s high blood
pressure, hip and knee pain, and right eye vision impairment. (Tr. 27-28). In addition, in his
decision, the ALJ set forth the fact that at step two, he must determine whether Plaintiff had “a
medically determinable impairment that is ‘severe’ or a combination of impairments that is
‘severe.’” (Tr. 26). He also stated that an impairment or combination of impairments is “not
severe” when medical and other evidence established only a slight abnormality or a combination

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of slight abnormalities that would have no more than a minimal effect on an individual’s ability
to work. (Tr. 26). The ALJ stated that at step three, he must determine whether the Plaintiff’s
“impairment or combination of impairments” meets or medically equals the criteria of an
impairment listed in the relevant listings. (Tr. 23). The ALJ concluded that Plaintiff did not
have an impairment “or combination of impairments” that met or medically equaled the severity
of one of the listed impairments. (Tr. 28). This language demonstrates that the ALJ considered
the combined effect of Plaintiff’s impairments. See Martise v. Astrue, 641 F.3d 909, 924 (8th
Cir. 2011); Raney v. Barnhart, 396 F.3d 1007, 1011 (8th Cir. 2005).
Based upon the foregoing, the Court finds there is substantial evidence to support the fact
that the ALJ considered all of Plaintiff’s impairments individually, and in combination.
B.

Credibility Findings:

Plaintiff contends that the ALJ failed to properly consider his subjective allegations of
pain. 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 v. Barnhart, 314 F.3d 964, 966
(8th Cir. 2003).

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In his decision, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that Plaintiff’s statements concerning
the intensity, persistence and limiting effects of the symptoms were not entirely credible. (Tr.
31). The ALJ thereafter discussed the medical records as they related to Plaintiff’s COPD, noting
that: the Spirometry performed on August 30, 2012, showed findings consistent with severe
obstruction and moderate restriction (Tr. 31); Dr. Sadler’r report dated August 16, 2012, showed
that Plaintiff’s medications (Spiriva and ProAir) controlled his COPD well; on August 30, 2012,
Dr. Cynthia Hughes reported that Plaintiff was walked around the clinic for two minutes, and
his average pulse oximetry was 97 percent, and his spirometry was about the same; and on
October 15, 2012, Dr. Johnson reported that Plaintiff was breathing easily. (Tr. 31). The ALJ
further noted that there was no evidence that Plaintiff had exacerbations of symptoms requiring
intensive treatment, and that in spite of Plaintiff’s COPD diagnosis, he continued to smoke
cigarettes. (Tr. 31). In fact, in Dr. Hughes’ report dated July 18, 2013, she noted “Chronic
obstructive airway disease is stable but unable to work but was denied disability, still smoking!!”
(Tr. 351). Plaintiff’s smoking habit discredits his disability allegations. See Lewis v. Barnhart,
353 F.3d 642, 647 (8th Cir. 2003).
The ALJ further noted that when Plaintiff was examined by Dr. Terry Efird, Ph.D.,
Plaintiff reported he left his last employment because he did not pass his DOT physical, and that
he was offered a job at a hatchery but did not accept that position because it was too far from his
home and because of the expense, and he was therefore let go from his job. (Tr. 32). The ALJ
addressed the fact that with respect to Plaintiff’s hip and knee pain, Plaintiff did not seek
additional treatment after he was examined by Dr. Hughes, who recommended x-rays of

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Plaintiff’s hip and knee. The record indicates that Plaintiff did not obtain the suggested x-rays
because of the cost. However, the Court finds it noteworthy that, as noted earlier, Plaintiff was
somehow able to afford to continue to smoke cigarettes and drink beer on a daily basis.
The ALJ addressed Plaintiff’s daily activities, stating that he had no problem with his
personal care, that he drove, and was able to perform most activities of daily living, referencing
Dr. Terry Efird’s findings. (Tr. 29). The ALJ also addressed Plaintiff’s mental impairments,
noting that there was no evidence that he sought professional mental health treatment or had
been hospitalized as a result of mental symptoms/impairments. (Tr. 33).
Based upon the foregoing, and for those reasons given in Defendant’s brief, the Court
is of the opinion that there is substantial evidence to support the ALJ’s credibility findings.
C.

RFC Determination:

Plaintiff argues that Plaintiff is an individual closely approaching advanced age with a
limited education and that the medical evidence does not support a finding that he would be
capable of performing work at the medium level of exertion. More specifically, Plaintiff argues
that his limited pulmonary function and inability to lift fifty pounds for 1/3 of every workday
would not allow him to perform medium work. Plaintiff also argues that the ALJ disregarded
his major depressive disorder and GAF score of 40-50, given by Dr. Efird.
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

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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 his decision, the ALJ discussed the medical records of Plaintiff’s treating physicians,
as well as Plaintiff’s allegations and his wife’s testimony. The ALJ considered and discussed
all of Plaintiff’s alleged impairments, including his COPD, hearing loss, and mental
impairments. As indicated earlier, the ALJ noted that on August 30, 2012, when Plaintiff saw
Dr. Hughes, she reported that he was walked around the clinic for 2 minutes and his average
pulse oximetry 97% spirometry was about the same. (Tr. 31, 324). On October 29, 2012, nonexamining consultant, Dr. Lucy Sauer, completed a RFC Assessment, finding that Plaintiff
would be capable of performing medium work, but should avoid work requiring excellent
hearing, and there should be dust/fumes precautions taken. (Tr. 83). On September 30, 2012,
non-examining consultant, Diane Kogut, Ph.D., completed a Mental RFC Assessment, finding
that Plaintiff suffered from affective disorders and anxiety-related disorders, and that Plaintiff
had mild limitations in his daily activities; moderate limitations in difficulties in maintaining
social functioning and concentration, persistence or pace, and no repeated episodes of
decompensation, each of extended duration. (Tr. 80).
The ALJ gave great weight to the state agency medical consultants’ opinions, finding

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they were consistent with and supported by the evidence of record. (Tr. 33), and based upon the
foregoing, the Court finds there is substantial evidence to support the ALJ’s RFC determination.
D.

Failure to Fully and Fairly Develop the Record:

Plaintiff argues that ALJ failed to procure a Psychiatric Review Technique form.
However, as indicated above, such information was obtained by Dr. Kogut, as evidenced in the
Disability Determination Explanation dated October 29, 2012. (Tr. 83). Accordingly, Plaintiff’s
argument is without merit.
IV.

Conclusion:
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 6th day of March, 2015.

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

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