Ryan v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 12, 2015. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

GLENDA S. RYAN

PLAINTIFF

V.

NO. 14-5109

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

DEFENDANT

MEMORANDUM OPINION

Plaintiff, Glenda S. Ryan, 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) and supplemental security income (SSI) 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).
I.

Procedural Background:
Plaintiff protectively filed her current applications for DIB and SSI on May 6, 2011,

alleging an inability to work since February 10, 2010, due to back injury, depression, anxiety,
migraine headaches, cyst on ovaries, and superventricular tachycardia. (Tr. 71-72, 78, 83). An
administrative hearing was held on August 27, 2012, at which Plaintiff appeared with counsel
and testified. (Tr. 497-518).

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By written decision dated November 2, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe - lumbago,
depression, and anxiety. (Tr. 17). 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. 18). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except the claimant can frequently climb ramps and stairs and
occasionally climb ladders, ropes and scaffolds. She can occasionally
balance, stoop, kneel, crouch and crawl. She is able to perform work
where interpersonal contact is incidental to the work performed,
complexity of tasks is learned and performed by rote, few variables, little
judgment, supervision required is simple, direct and concrete.
(Tr. 20). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would be able to perform her past relevant work as a motel
maid/housekeeper. (Tr. 25).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on January 27, 2014. (Tr. 4-7). 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. 13, 15).
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

substantial evidence on the record as a whole. Ramirez v. Barnard, 292 F. 3d 576, 583 (8th Cir.

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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

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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.
III.

Discussion:
Plaintiff raises the following arguments on appeal: 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 determining Plaintiff was capable of performing her past relevant
work; and 4) The ALJ erred in his RFC determination. (Doc. 13).
A.

Consideration of Impairments in Combination:

Plaintiff contends the ALJ disregarded her allegations of hip pain, leg pain, migraine
headaches and supraventricular tachycardia.
Contrary to Plaintiff’s argument, the ALJ specifically addressed Plaintiff’s allegations
of hip pain, leg pain, migraine headaches and supraventricular tachycardia. (Tr. 17-18, 20-22)
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. 16). 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 of slight abnormalities that would have no more than a minimal

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effect on an individual’s ability to work. (Tr. 16). 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. 16). 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. 18). 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 argues that the ALJ neglected to properly consider the level of pain associated
with Plaintiff’s lumbago and low back 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 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).

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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 credible to the extent
they were inconsistent with his RFC determination. The ALJ found that Plaintiff had mild
restriction in activities of daily living. (Tr. 19). He noted that although Plaintiff reported that she
struggled to take care of her personal needs, she did not report needing assistance to complete
them. (Tr. 19). Plaintiff also helped to take care of her husband, sometimes prepared meals, did
some household chores, could drive a car, and shopped for food on occasion. (Tr. 19). In
addition, in Dr. Terry Efird’s Mental Diagnostic Evaluation, dated August 3, 2011, it was
reported that the ability to perform household chores adequately was described as impaired by
leg pain sporadically, and that she endorsed the ability to drive unfamiliar routes and shop
independently, while typically shopping with her husband. (Tr. 232). Dr. Efird also reported that
social interactions were described as going swimming “on a good day” with family, and that she
spent time on Facebook at times. In Plaintiff’s Function Report - Adult, dated January 15, 2012,
Plaintiff reported that she did some house and yard work some of the time. (Tr. 122). It is also
worth noting that during the relevant time period, although Plaintiff’s treating physician
recommended smoking cessation classes (Tr. 221), Plaintiff continued to smoke up to one pack
of cigarettes per day, which discredits her disability allegations. See Lewis v. Barnhart, 353 F.3d
642, 647 (8th Cir. 2003).
The ALJ also discussed the fact that on January 11, 2011, physical examination showed
that Plaintiff had a normal gait. (Tr. 21). He discussed the fact that the MRI of Plaintiff’s lumbar
spine on October 4, 2011, revealed mild generalized bulging annulus at L5-S1, disk desiccation

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at L4-5 and L5-S1, and no evidence of a disk herniation. (Tr. 21). When Dr. D. Wayne Brooks
examined Plaintiff on March 6, 2012, physical examination showed full functional range of
motion in Plaintiff’s upper and lower extremities and strength within normal limits. (Tr. 320).
Dr. Brooks also reported that Plaintiff was independent in mobility and activities of daily living,
could drive, but was no longer employed. (Tr. 320).
Finally, the ALJ noted that no physician placed any functional restrictions on her
activities that would preclude work activity with the restrictions placed in his RFC. (Tr. 23).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s credibility findings.
C.

RFC Determination:

Plaintiff argues that the ALJ failed to consider all of her physical impairments in making
his 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 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

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claimant’s limitations and to determine how those limitations affect his RFC.” Id.
In this case, as noted earlier, Plaintiff underwent a Mental Diagnostic Evaluation by Dr.
Terry Efird on August 3, 2011. (Tr. 229). Dr. Efird diagnosed Plaintiff as follows:
Axis I:
Axis II:
Axis V:

major depressive disorder, mild to moderate;
panic disorder, with agoraphobia
deferred (cluster B traits)
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(Tr. 231).
On August 4, 20122, non-examining consultant, Brad Williams, Ph.D., completed a
Mental RFC Assessment, finding that Plaintiff was capable of performing unskilled work. (Tr.
236). Dr. Williams also found in a Psychiatric Review Technique Report that Plaintiff had mild
limitations in activities of daily living, moderate limitations in maintaining social functioning
and in concentration, persistence or pace, and had no episodes of decompensation. (Tr. 248).
This assessment was affirmed by Dr. Kay M. Gale on February 6, 2012. (Tr. 265).
On February 9, 2012, non-examining consultant, Dr. Valeria Malak, completed a
physical RFC Assessment. (Tr. 269). She found that Plaintiff was capable of performing light
work, with no postural, manipulative, visual, communicative, or environmental limitations. (Tr.
269-272). She concluded that the records supported a Light RFC. (Tr. 275).
On August 15, 2012, Plaintiff was seen at Washington Regional Medical Center, and her
back examination included findings of normal inspection, range of motion was normal and there
was tenderness, paraspinal to the right lower back. (Tr. 291). The diagnosis was back strain. (Tr.
291).
In his decision, the ALJ gave some weight to the opinion of Dr. Malak, but based upon
the additional medical evidence and Plaintiff’s testimony and function reports, he found Plaintiff
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to be more limited than as determined by Dr. Malak. (Tr. 24). The ALJ also found Dr. Efird’s
opinion was supported by the objective medical evidence and incorporated his findings into the
RFC. (Tr. 24). The ALJ also gave great weight to the opinion of Dr. Williams, and concluded
that there was no treating source opinion that Plaintiff was more limited than as provided in his
RFC determination. (Tr. 25).
The Court finds, based upon the foregoing and consideration of the entire record, that
there is substantial evidence to support the ALJ’s RFC determination and the weight the ALJ
gave to all of the medical opinions.
D.

Past Relevant Work:

Plaintiff argues that there is not substantial evidence to support the finding that she could
perform her past relevant work.
The ALJ gave the following hypothetical question to the VE:
Q: Okay. In hypothetical number one, assume an individual with the
same age, education, and work experience as that of the claimant, who is
able to lift and/or carry 20 pounds occasionally, and lift and/or carry 10
pounds frequently. Stand and/or walk six hours of an eight hour work day
with normal breaks, sit six hours out of an eight hour work day with
normal breaks, push and pull with limitations pursuant to our lift and
carry limitations, able to climb ramps and stairs frequently, able to climb
ladders, ropes and scaffolds occasionally, able to balance, stoop, kneel,
crouch, and crawl occasionally, able to work where interpersonal contact
is incidental to the work performed, and the complexity of tasks as
learned and performed by rote with few variables and little judgment.
The supervision required is simple, direct, and concrete. Could an
individual with these impairments, or these limitations, perform the
claimant’s past work as it is actually performed, or as it is customarily
performed pursuant to the Dictionary of Occupational Titles.”
A. Okay. Based on the hypothetical that you presented with the stated
limitations, she could perform unskilled work, and the job that she could perform
that was her past relevant work would be of a motel maid based on the
hypothetical that you stated.
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(Tr. 515-516).
The Court finds that the hypothetical the ALJ posed to the VE 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 VE’s
response to the hypothetical questions posed by the ALJ constitutes substantial evidence
supporting the ALJ’s conclusion that Plaintiff’s impairments did not preclude her from
performing her past relevant work as a motel maid. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.
1996)(testimony from vocational expert based on properly phrased hypothetical question
constitutes substantial evidence).
evidence).
E.

Failure to Fully and Fairly Develop the Record:

Plaintiff argues that the ALJ failed to fully and fairly develop the record because he
failed to order a cardiac stress test or a neurological evaluation to accurately determine the extent
and limiting effects of Plaintiff’s supraventricular tachycardia and migraine headaches.
Plaintiff’s argument is without merit. As noted by the ALJ, on April 15, 2011, Dr. Beck reported
that Plaintiff’s supraventricular tachycardia was stable. (Tr. 18, 159). With respect to Plaintiff’s
migraine headaches, the ALJ noted that at the hearing, Plaintiff testified that her TENS helps her
headaches, and that she had not complained to her treating physician that her migraines had
increased in length and intensity, and in fact stated that Flexeril was helping her migraines. (Tr.
18).
The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47 F.3d
935, 938 (8th Cir. 1995); Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000). This is

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particularly true when Plaintiff is not represented by counsel. Payton v. Shalala, 25 FG.3d 684,
686 (8th Cir. 1994). This can be done by re-contacting medical sources and by ordering
additional consultative examinations, if necessary. See 20 C.F.R. § 404.1512. The ALJ’s duty
to fully and fairly develop the record is independent of Plaintiff’s burden to press her case.
Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010). However, the ALJ is not required to
function as Plaintiff’s substitute counsel, but only to develop a reasonably complete record. See
Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995)(“reversal due to failure to develop the record
is only warranted where such failure is unfair or prejudicial”). “The regulations do not require
the Secretary or the ALJ to order a consultative evaluation of every alleged impairment. They
simply grant the ALJ the authority to do so if the existing medical sources do not contain
sufficient evidence to make a determination.” Matthews v. Bowen, 879 F.2d 423, 424 (8th Cir.
1989). “There is no bright line rule indicating when the Commissioner has or has not adequately
developed the record; rather, such an assessment is made on a case-by-case basis.” Mans v.
Colvin, No. 13-CV-2103, 2014 WL 3689797 at *4 (W.D. Ark., July 24, 2014)(quoting Battles
v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994).
Based upon the record as a whole, the Court finds that there were existing medical
sources in this case which contained sufficient evidence from which the ALJ could make a
determination as to Plaintiff’s ability to function in the workplace.
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.

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IT IS SO ORDERED this 12th day of March, 2015.

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

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