Hamm v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 14, 2016. (rg)

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

MARY E. HAMM

PLAINTIFF

v.

CIVIL NO. 15-5017

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Mary E. Hamm, 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 supplemental security income (SSI) benefits under the
provisions of Title 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 application for SSI on August 24, 2011, alleging

an inability to work due to rheumatoid arthritis, both knees; a back injury; a knee injury;
arthritis; bronchitis; depression; chronic obstructive pulmonary disease; a herniated disk in the
back; and a narrowing of the spinal canal. (Tr. 118, 138). An administrative hearing was held
on July 19, 2012, at which Plaintiff appeared with counsel and testified. (Tr. 32-56).
By written decision dated December 14, 2012, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.
22). Specifically, the ALJ found Plaintiff had the following severe impairments: hypertension,
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asthma, degenerative disc disease of the lumbar spine, spondylosis of the lumbar spine, and
obesity. 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. 22). The
ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 416.967(b) except she would need a
controlled environment with no temperature extremes, dust, or smoke. She
would need a sit/stand option job with a mixture of those, not necessarily at
will.
(Tr. 22-23). With the help of a vocational expert, the ALJ determined Plaintiff could perform
work as a convenience store clerk, and a rental clerk. (Tr. 26).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on November 26, 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. 12, 13).
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 Commissioner's decision, the Court may not reverse it simply because substantial
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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. § 416.920. Only
if the final stage is reached does the fact finder consider the Plaintiff’s age, education, and

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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 argues the following issues on appeal: 1) the ALJ erred in determining

Plaintiff’s severe impairments; 2) the ALJ erred in determining Plaintiff’s RFC; and 3) the ALJ
erred in determining the jobs that Plaintiff could perform.
A.

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). While “severity is not an
onerous requirement for the claimant to meet…it is also not a toothless standard.” Wright v.
Colvin, 789 F.3d 847, 855 (8th Cir. 2015) (citations omitted). 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 claimant 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 chest pain and coronary symptoms to be
severe impairments, the ALJ specifically discussed these 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. 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

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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”). The Court finds the ALJ did not commit reversible error in setting
forth Plaintiff’s severe impairments.
B.

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.
After reviewing the administrative record, it is clear that the ALJ properly considered
and evaluated Plaintiff’s subjective complaints, including the Polaski factors. As noted by the
ALJ, the record reveals that during the relevant time period, Plaintiff was able to perform
household chores with the help of her daughter; to drive; to help her children, one of which has
disabilities; to take care of her personal needs; to prepare simple meals; to shop for clothes and
groceries; to read and do puzzles; and to attend church on a consistent basis.
With respect to Plaintiff’s respiratory impairments, while Plaintiff’s treating physicians
recommended that she stop smoking, the record reveals that Plaintiff continued to smoke up to
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one package of cigarettes a day during the relevant time period. See Kisling v. Chater, 105
F.3d 1255, 1257 (8th Cir.1997) (noting that a failure to follow prescribed treatment may be
grounds for denying an application for benefits); Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir.
2008)(where claimant’s smoking had a direct impact on his impairments, the ALJ
appropriately considered claimant’s failure to stop smoking in making his credibility
determination).
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she
has not established that she is unable to engage in any gainful activity. Accordingly, the Court
concludes that substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective
complaints were not totally credible.
C.

ALJ’s RFC Determination and Medical Opinions:

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 h[er] RFC.” Id.

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In determining that Plaintiff maintained the RFC to perform light work with limitations,
the ALJ considered the medical assessments of the examining and non-examining agency
medical consultants; Plaintiff’s subjective complaints; and her medical records.

While

Plaintiff argues that the ALJ did not properly address the medical evidence indicating that
Plaintiff should wear support hose and keep her legs elevated, a review of the medical evidence
reveals that these recommendations were made in 2010, prior to the relevant time period.
Furthermore, medical records from the relevant time period fail to place any restrictions on
Plaintiff that would preclude the RFC determined by the ALJ. The ALJ also took Plaintiff’s
obesity into account when determining that Plaintiff could perform light work with limitations.
Heino v. Astrue, 578 F.3d 873, 881-882 (8th Cir. 2009) (when an ALJ references the claimant's
obesity during the claim evaluation process, such review may be sufficient to avoid reversal).
Based on the record as a whole, the Court finds substantial evidence to support the ALJ’s RFC
determination for the relevant time period.
D.

Hypothetical Question to the Vocational Expert:

After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical the ALJ posed to the 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 her from performing work as a
convenience store clerk, and a rental clerk. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.
1996)(testimony from vocational expert based on properly phrased hypothetical question
constitutes substantial evidence).
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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 14th day of January, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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