Middlebrooks v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 28, 2015. (rg)

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

CLAUDETTE J. MIDDLEBROOKS

v.

PLAINTIFF

CIVIL NO. 14-5237

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Claudette J. Middlebrooks, 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).
I.

Procedural Background:
Plaintiff protectively filed her current applications for DIB on January 31, 2012, alleging

an inability to work since December 31, 2007, due to back problems and migraines. (Tr. 102,
139). For DIB purposes, Plaintiff maintained insured status through September 30, 2008. (Tr.
37, 113). An administrative video hearing was held on January 8, 2013, at which Plaintiff
appeared with counsel and testified. (Tr. 7-33).
By written decision dated June 27, 2013, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 39).

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Specifically, the ALJ found Plaintiff had the following severe impairments: scoliosis and
osteoarthritis. 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. 39). The ALJ
found that prior to her date last insured, Plaintiff retained the residual functional capacity (RFC)
to perform a full range of light work as defined in 20 C.F.R. § 404.1567(b). (Tr. 39). With the
help of a vocational expert, the ALJ determined that prior to her date last insured, Plaintiff could
perform her past relevant work as a food service manager and a bartender, as those jobs are
performed in the national economy. (Tr. 42).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on July 7, 2014. (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. 9; Doc. 10).
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. 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
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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
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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.
III.

Discussion
Plaintiff argues the following issues on appeal: 1) the ALJ erred at Step Two by failing

to find Plaintiff’s migraine headaches and generalized anxiety disorder were severe impairments;
2) the ALJ failed to fully and fairly develop the record; 3) the ALJ erred in determining
Plaintiff’s RFC; and 4) the ALJ erred in rejecting the credibility of Plaintiff’s subjection
complaints.
A.

Insured Status

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 September 30, 2008. 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 December 31, 2007, her alleged onset
date of disability, through September 30, 2008, the last date she was in insured status under Title
II of the Act.
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
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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).
B.

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).
C.

Plaintiff’s Impairments:

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).
While the ALJ did not find Plaintiff’s alleged headaches and generalized anxiety disorder
were severe impairments during the relevant time period, the ALJ specifically discussed these
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alleged impairments in the decision, and clearly stated that he considered all of Plaintiff’s
impairments, including the impairments that were found to be non-severe. (Tr. 38). 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”). Thus, the ALJ's finding that Plaintiff's
alleged headaches and generalized anxiety disorder were not a “severe” impairments does not
constitute reversible error.
D.

Subjective Complaints and Credibility Analysis:

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, 314 F.3d at 966.
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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 in a Disability Report, Plaintiff indicated that she stopped working on December
31, 2007, because she had to help family members. (Tr. 139). When questioned by the ALJ
during the administrative hearing held on January 8, 2013, Plaintiff testified that she has having
problems back in December of 2007, but that she also helped care for her stepmother at that time.
(Tr. 29). Plaintiff also testified that around that time she moved to California for three to four
months to help care for her grandchildren. (Tr. 29-30). Plaintiff testified that while she was in
California she tried to find a job working in a bar but was unable to do so. (Tr. 30). The record
further reveals that in December of 2008, after the expiration of her insured status, Plaintiff
requested antibiotics from her treating physician, as she was preparing to leave on a cruise. (Tr.
245). As noted by the ALJ, the medical evidence during the relevant time period does not
substantiate Plaintiff’s alleged impairment of function.
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 prior to the expiration
of her insured status. Accordingly, the Court concludes that substantial evidence supports the
ALJ’s conclusion that Plaintiff’s subjective complaints were not totally credible.
E.

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
her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v.
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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 the present case, the ALJ considered the medical assessments of non-examining
agency medical consultants, Plaintiff’s subjective complaints, and her medical records when he
determined Plaintiff could perform light work prior to the expiration of her insured status.
Plaintiff's capacity to perform light during the relevant time period is also supported by the fact
that the medical evidence does not indicate that Plaintiff's examining physicians placed
restrictions on her activities that would preclude performing the RFC determined. See Hutton
v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (lack of physician-imposed restrictions militates
against a finding of total disability). Accordingly, the Court finds there is substantial evidence
of record to support the ALJ’s RFC findings for the time period in question.
F.

Past Relevant Work:

Plaintiff has the initial burden of proving that she suffers from a medically determinable
impairment which precludes the performance of past work. Kirby v. Sullivan, 923 F.2d 1323,
1326 (8th Cir. 1991). Only after the claimant establishes that a disability precludes performance

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of past relevant work will the burden shift to the Commissioner to prove that the claimant can
perform other work. Pickner v. Sullivan, 985 F.2d 401, 403 (8th Cir. 1993).
According to the Commissioner's interpretation of past relevant work, a claimant will not
be found to be disabled if she retains the RFC to perform:

1. The actual functional demands and job duties of a particular
past relevant job; or
2. The functional demands and job duties of the occupation as
generally required by employers throughout the national
economy.

20 C.F.R. §§ 404.1520(e); S.S.R. 82-61 (1982); Martin v. Sullivan, 901 F.2d 650, 653 (8th Cir.
1990)(expressly approving the two part test from S.S.R. 82-61).
The Court notes in this case the ALJ relied upon the opinion of a vocational expert, who
after reviewing the file, opined that Plaintiff’s past relevant work as a food service manager and
a bartender are considered light work in the Dictionary of Occupational Titles. See Gilbert v.
Apfel, 175 F.3d 602, 604 (8th Cir. 1999) ("The testimony of a vocational expert is relevant at
steps four and five of the Commissioner's sequential analysis, when the question becomes
whether a claimant with a severe impairment has the residual functional capacity to do past
relevant work or other work") (citations omitted). Accordingly, the Court finds substantial
evidence to support the ALJ’s finding that Plaintiff could perform her past relevant work as a
food service manager and a bartender, as those jobs are performed in the national economy.

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IV.

Conclusion:
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 28th day of August, 2015.

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

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