Ward v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on November 23, 2015. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
RICHARD WAYNE WARD

PLAINTIFF

V.

NO. 14-5329

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

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Richard Wayne Ward, 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 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 his current applications for DIB and SSI on February 23,

2011, alleging an inability to work since June 11, 2010, due to a ruptured disc, degenerative
disc disease, and heart disease. (Tr. 128-138, 165, 187). An administrative hearing was held
on May 30, 2013, at which Plaintiff appeared with a non-attorney representative and testified.
(Tr. 28-48).
By written decision dated July 18, 2013, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe –

1

degenerative disc disease, coronary artery disease (status-post defibrillator), obesity, eczema
of the hands, depression and an adjustment disorder. (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. 14). The ALJ found Plaintiff retained the
residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.l1567(b) and 416.967(b) except
lifting up to 10 pounds; standing/walking 2 hours per 8 hour workday; sitting
6 hours per 8-hour workday; no exposure to temperature or humidity
extremes, or irritants such gases, fumes, dusts and odors, or work in food
industry but he is able to understand, remember and carry out simple and
some complex instructions consistent with unskilled work. He would be able
to relate and interact with coworkers and supervisors on a work-related basis
only with no or minimal interaction with the general public. The claimant can
adapt to a work situation with these limitations/restrictions and his
medications would not preclude him from remaining reasonably alert to
perform required functions presented in a work setting.
(Tr. 15-16). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff was unable to perform his past relevant work, but there were
other jobs Plaintiff would be able to perform, such as mailroom clerk, assembler, clerical
mailer, and surveillance monitor. (Tr. 21-22).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on September 8, 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. 5). Both parties have filed appeal briefs, and the case is now ready for decision. (Docs.
11, 12).

2

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). The court “‘will disturb the ALJ’s decision
only if it falls outside the available zone of choice.’” Papesh v. Colvin, No. 14-2230, 2015
WL 3396586 at *4 (8th Cir. May 27, 2015)(quoting Hacker v. Barnhart, 459 F.3d 934, 936
(8th Cir. 2006)). An ALJ’s decision is not outside the zone of choice simply because the court
might have reached a different conclusion had it been the initial finder of fact. Papesh, 2015
WL 3396586 at *4 (quoting Bradley v. Astrue, 528 F.3d 1113, 1115 (8tyh Cir. 2008).
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

3

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 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 raises several issues in his brief, all of which appear to relate to the ALJ’s

RFC determination, such as whether the ALJ included all of the limitations supported by the
record in his RFC, and whether he gave proper weight to the various opinions of the
physicians.
A. 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 his pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness, and side effects of his medication; and (5)

4

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). The ALJ discussed Plaintiff’s daily activities,
the medical records, and the fact that Plaintiff continued to smoke after being advised to quit
by his physicians. (Tr. 18).
After a careful review of the record as a whole, the Court finds there is substantial
evidence to support the ALJ’s credibility analysis.
B. 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 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
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

5

specifically a claimant’s limitations and to determine how those limitations affect his RFC.”
Id. “The ALJ is permitted to base its RFC determination on ‘a non-examining physician’s
opinion and other medical evidence in the record.’” Barrows v. Colvin, No. C 13-4087MWB, 2015 WL 1510159 at *15 (quoting from Willms v. Colvin, Civil No. 12-2871, 2013
WL 6230346 (D. Minn. Dec. 2, 2013).
With respect to the weight given to the opinions of treating physicians, “[a]
claimant’s treating physician’s opinion will generally be given controlling weight, but it must
be supported by medically acceptable clinical and diagnostic techniques, and must be
consistent with other substantial evidence in the record.” Andrews v. Colvin, No. 14-3012,
2015 WL 4032122 at *3 (8th Cir. July 2, 2015)(citing Cline v. Colvin, 771 F.3d 1098, 1102
(8th Cir. 2014). “A treating physician’s opinion may be discounted or entirely disregarded
‘where other medical assessments are supported by better or more thorough medical
evidence, or where a treating physician renders inconsistent opinions that undermine the
credibility of such opinions.’” Id. “In either case-whether granting a treating physician’s
opinion substantial or little weight-the Commissioner or the ALJ must give good reasons for
the weight apportioned.” Id
In his decision, the ALJ found that the Plaintiff had the RFC to perform “light work
as defined in 20 CFR 404.1567(b) and 416.967(b) except lifting up to 10 pounds;” with
certain postural, environmental, and mental limitations. (Tr. 15-16). Plaintiff first argues that
the ALJ’s RFC assessment is internally inconsistent because it appears the ALJ was meaning
to find that Plaintiff retained a RFC for a reduced range of sedentary, not light work.

6

At the hearing held before the ALJ, the ALJ presented the following first hypothetical
question to the VE:
Q: For hypothetical one let’s assume that we have 44 year old male with a
tenth grade – 11th grade education with a good ability to read, and write and
use numbers. He would be limited to a range of light work, defined as no
more than the occasional lifting up to 20 pounds; no more than the frequent
lifting or carrying up to ten pounds; standing, walking six hours out of an
eight hour workday; sitting six hours out of an eight hour workday; no
climbing ladders, ropes or scaffolds; all postural activities no more than
occasionally; no exposure to temperature or humidity extremes; nor work in
the food industry due to eczema; and no exposure to irritants, such as gasses,
fumes or chemicals; but can understand, remember and carry out simple and
some complex instructions; and could relate to coworkers and supervisors for
work purposes only; with no to minimal contact with the general public; and
he could adapt to the work setting with these limitations; and medications
would not prevent the individual from being reasonably alert in the work
setting. Can this individual perform past work?
A: No Your Honor. He could not.
Q: Could this individual perform any other work, unskilled work, starting
with light and two lights and two sedentary, if any?
A: Yes, Your Honor. …One would be as a mail room clerk….There also
would be a position as an assembler…At the sedentary exertional level an
example would be as a clerical mailer….There also would be a position as a
surveillance monitor…
(Tr. 46-47). The ALJ then presented the VE with the following hypothetical question
number two:
Q: For hypothetical two if we reduce the lifting to ten pounds and the
standing, walking to two hours out of an eight hour workday, can I assume
that the sedentary jobs can be performed?
A: Yes. That would be correct.
(Tr. 47).

7

In his decision, the ALJ concluded that Plaintiff would be able to perform two jobs at
the light level (mailroom clerk and assembler), and two jobs at the sedentary level (clerical
mailer and surveillance monitor). Even if the ALJ used the term “light” work in his RFC
determination, the remaining limitations given in his RFC, as well as his second hypothetical
question, indicate he believed Plaintiff could perform sedentary work with certain
limitations. Two of the jobs the ALJ found Plaintiff could perform are performed at the
sedentary level. “To show an error was not harmless, [the plaintiff] must provide some
indication that the ALJ would have decided differently if the error had not occurred.” Byes
v. Astrue, 687F.3d 913, 917 (8th Cir. 2012); Sullivent v. Colvin, No. 6:14-cv-30083-MDH,
2015 WL 4948941 at *2, n.5 (W.D. Mo., Aug. 19, 2015). Plaintiff has not provided any
indication that the case would have been decided differently by the ALJ had the error not
occurred. Therefore, any error the ALJ made in his reference to light work in his RFC was
harmless error.
With respect to the weight the ALJ gave to the physicians’ opinions, in his decision,
the ALJ specifically addressed each opinion and the amount of weight he gave to each. He
also discussed the medical records that supported the opinions. (Tr. 20-21). With respect to
the opinion of Plaintiff’s treating physician, Dr. David J. Tucker, the ALJ acknowledged Dr.
Tucker’s letter dated June 27, 2012, and his Physical Capacities Evaluation dated June 15,
2012, wherein Dr. Tucker severely limited Plaintiff’s ability to work. (Tr. 20). The ALJ gave
Dr. Tucker’s treatment records significant weight, consistent with the ALJ’s RFC
assessment, but concluded that Dr. Tucker’s RFC, which indicated Plaintiff could do less
than sedentary work, was based on Plaintiff’s statements, and not the doctor’s opinion. He
further found that the overall record did not support an inability to sit for at least 6 hours out
8

of an 8-hour workday. (Tr. 20). The Court believes there is substantial evidence to support
the ALJ’s conclusions regarding Dr. Tucker’s opinions. Dr. Tucker indicated in his Physical
Capacities Evaluation that Plaintiff suffered from fatigue resulting from having to take
frequent pain medication and that Plaintiff’s pain and the side effects of his medication
moderately affected his attention and concentration. (Tr. 522, 524). However, only one
month prior, on May 9, 2012, Dr. Tucker reported that Plaintiff was “doing quite well,” and
was having no particular problems or difficulties, “no side effects to the medications,” and
had been stable on the present dose for quite some time. (Tr. 538). The ALJ also noted that
there were no radiology reports or orthopedic reports relating to Plaintiff’s back. (Tr. 20).
In addition to Dr. Tucker’s medical records, the ALJ discussed the records of Dr.
Michael Green, Plaintiff’s cardiologist, and gave his opinion substantial weight. (Tr. 20). Dr.
Green saw Plaintiff on a regular basis after his heart surgery. On March 13, 2013, when
Plaintiff saw Dr. Green for follow-up, Dr. Green noted that Plaintiff had no current
complaints, denied chest pain and shortness of breath, and that Plaintiff was “still smoking.”
(Tr. 540).
The ALJ gave considerable weight to the opinion of Denise LaGrand, Psy.D., who
concluded that while Plaintiff did report some mental/emotional symptoms, they were
secondary to his pain, did not appear to significantly affect his performance, and his
application for disability seemed to be based primarily on physical factors. (Tr. 386). The
ALJ noted that Dr. LaGrand stated Plaintiff had a normal gait and did not appear to be in any
discomfort, but that Plaintiff stated his pain was an eight on the pain scale, which the ALJ
found to be inconsistent. (Tr. 20).

9

A comprehensive internal medicine evaluation was performed on May 3, 2011, by
Dr. Dubramaniam Krishnamuirthi, who noted that Plaintiff walked normally, his speed was
slow due to back pain, and toe walking was difficult. (Tr. 392). Dr. Krishnamuirthi found
Plaintiff’s lower extremities had 5/5 strength in the quadriceps, hamstrings, dorsiflexion, and
plantarflexion bilaterally. (Tr. 3920. Plaintiff’s flexion, extension, and lateral flexion of
dorsolumbar were very much reduced due to pain, and his range of motion of the
lumbosacral spine and lower left extremity was reduced due to pain. (Tr.393). The ALJ
found Dr. Krishnamurthi’s findings were consistent with the records as a whole. (Tr. 20).
A Physical RFC Assessment was completed by non-examining physician, Dr. Evette
Budrich, on August 29, 2011. (Tr. 424-431). Dr. Budrich found that Plaintiff was capable of
performing light work with certain postural limitations. (Tr. 426). The ALJ gave this opinion
significant weight.
The Court finds the ALJ considered all of the medical records, Plaintiff’s complaints
of pain, and all of the opinions of the various treating and non-treating physicians. The Court
additionally notes that Plaintiff continued to smoke after being told to quit. “Failure to
follow a prescribed course of remedial treatment without good reason is grounds for denying
an application for benefits.”

Brown v. Barnhart, 390 F.3d 535, 540-541 (8th Cir.

2004)(citations omitted).
Based upon the foregoing, as well as for those reasons given in Defendant’s brief, the
Court finds there is substantial evidence to support the ALJ’s RFC determination.
In addition, after thoroughly reviewing the hearing transcript along with the entire
evidence of record, the Court finds that the hypothetical questions the ALJ posed to the
10

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 opinion constitutes substantial
evidence supporting the ALJ's conclusion that Plaintiff's impairments did not preclude him
from performing the sedentary level jobs of clerical mailer and surveillance monitor. Pickney
v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from vocational expert based on
properly phrased hypothetical question constitutes substantial evidence).
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 23rd day of November, 2015.

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

11