Davis v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 29, 2016. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
ROSE MARIE DAVIS
CIVIL NO. 15-5026
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Rose Marie Davis, 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) benefits 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).
Plaintiff protectively filed her current applications for DIB and SSI on July 11, 2011,
alleging an inability to work since July 1, 2011, due to sleep apnea, blackouts, emphysema,
back pain, and hip pain. (Tr. 152, 156, 179). An administrative video hearing was held on
June 10, 2013, at which Plaintiff appeared with counsel and testified. (Tr. 38-77).
By written decision dated July 12, 2013, 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: obesity, and
chronic obstructive pulmonary disease (COPD)/emphysema. 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. 23). The ALJ found Plaintiff retained the residual
functional capacity (RFC) to:
perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) in that
the claimant is able to lift and/or carry 50 pounds occasionally and 25 pounds
frequently, stand and/or walk 6 hours in an 8-hour workday, and sit 6-8 hours
in an 8-hour workday. He (sic) should avoid crawling and avoid exposure to
fumes, odors, dusts, toxins, gases, or poor ventilation.
(Tr. 23). With the help of a vocational expert, the ALJ determined Plaintiff could perform her
past relevant work as a fast food worker and a cook’s helper. (Tr. 26).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on December 6, 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. 7).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 10, 11).
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.
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
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,
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. §§ 404.1520, 416.920.
Plaintiff argues the following issues on appeal: 1) the ALJ erred in determining
Plaintiff’s RFC; and 2) the ALJ erred in determining Plaintiff could return to her past relevant
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.
In finding Plaintiff able to perform medium work with limitations, the ALJ considered
Plaintiff’s subjective complaints, her medical records, and the evaluations of the examining
and non-examining medical examiners. Plaintiff's capacity to perform this level of work is
supported by the fact that Plaintiff's examining physicians placed no restrictions on her
activities that would preclude performing the RFC determined during the relevant time period.
See Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (lack of physician-imposed restrictions
militates against a finding of total disability. After reviewing the entire transcript, the Court
finds substantial evidence supporting the ALJ’s RFC determination for the time period in
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
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 reveals that Plaintiff was able to do light housekeeping; to do yard work, including
mowing the yard; to take care of her personal hygiene; to drive; and to prepare simple meals
for she and her husband. The record also reveals that she quit her most recent employment
due to the behavior of a co-worker, not her alleged disabilities.
With respect to Plaintiff’s alleged shortness of breath, the ALJ discounted the
seriousness of this alleged impairment, as the record revealed Plaintiff smoked up to two
packages of cigarettes a day, up until one month prior to the administrative hearing. 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.
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 the
performance 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
when he found Plaintiff’s past relevant work as a fast food worker and a cook’s helper are
considered medium 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).
While Plaintiff argues that the ALJ failed to make explicit findings regarding Plaintiff’s
past relevant work, the ALJ set forth the exertional level of Plaintiff’s past relevant work in
the decision. The ALJ also used vocational expert testimony at the administrative hearing to
discuss the skill and exertional level of Plaintiff’s past relevant work. See Walter v. Apfel,
998 F. Supp. 1078, 1083 (E.D. Mo. 1998). Accordingly, the Court finds substantial evidence
to support the ALJ’s finding that Plaintiff could perform her past relevant work as a fast food
worker and a cook’s helper.
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 29th day of January, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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