Phillips v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on April 15, 2016. (rg)

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

WANDA G. PHILLIPS

PLAINTIFF

v.

NO. 15-5028

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Wanda G. Phillips, 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) 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 application for DIB on July 11, 2012, alleging an

inability to work since June 16, 2008, due to depression, borderline personality, bladder
incontinence, asthma, shortness of breath, restless leg syndrome, sleep apnea, type 2 diabetes,
morbid obesity, past knee replacements (both), and past thyroidectomy. (Tr. 131-132, 294).
For DIB purposes, Plaintiff maintained insured status through June 30, 2010. (Tr. 299). An
administrative video hearing was held on March 11, 2014, at which Plaintiff appeared with
counsel and testified. (Tr. 89-128).

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By written decision dated August 19, 2014, the ALJ found that prior to the expiration
of her insured status, Plaintiff had an impairment or combination of impairments that were
severe. (Tr. 79). Specifically, the ALJ found that prior to the expiration of her insured states,
Plaintiff had the following severe impairments: obesity, osteoarthritis, and cardiac
dysrhythmia. However, after reviewing all of the evidence presented, the ALJ determined that
prior to the expiration of her insured status, 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. 80). The ALJ found that prior to the expiration of her insured
status, Plaintiff retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) except she can
frequently climb, balance, stoop, kneel, crouch, and crawl.
(Tr. 80). With the help of a vocational expert, the ALJ determined that prior to the expiration
of her insured status, Plaintiff could perform her past relevant work as a social service worker,
and a social service worker for health service. (Tr. 83).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence submitted by Plaintiff, denied that request on December 1,
2014. (Tr. 1-7). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the
undersigned pursuant to the consent of the parties. (Doc. 8). 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.
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
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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).
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

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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 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), abrogated on other grounds by Higgins v. Apfel, 222 F.3d
504, 505 (8th Cir. 2000); 20 C.F.R. § 404.1520.
III.

Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ erred in failing to consider

the treating source mental health treatment evidence submitted post-hearing; 2) the ALJ erred
in failing to find Plaintiff had a severe mental health impairment; 3) the ALJ erred in
determining Plaintiff’s credibility; 4) the ALJ failed to properly evaluate Plaintiff’s obesity;
and 5) the ALJ erred in determining Plaintiff’s RFC. 1
A.

Insured Status and Relevant Time Period:

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 June 30, 2010. 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 June 16, 2008, her alleged onset date
of disability, through June 30, 2010, the last date she was in insured status under Title II of the
Act.

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The Court has reordered Plaintiff’s arguments to correspond with the five-step analysis utilized by the Commissioner.

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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 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.

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 all of Plaintiff’s alleged impairments to be severe
impairments prior to the expiration of Plaintiff’s insured status, the ALJ specifically discussed
the 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

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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”).
With respect to Plaintiff’s alleged mental impairments, a review of the record reveals
that while Plaintiff may have had an emotional breakdown after her insured status had expired,
the evidence during the relevant time period supports the ALJ’s determination that her mental
impairments were not severe during the time period in question. The record reveals that
Plaintiff denied experiencing anxiety or depression to Dr. Geetha Ramaswamy on June 11,
2010. (Tr. 719). On June 25, 2010, just five days before the expiration of her insured status,
Plaintiff made no mention of mental problems when she was seen by Dr. Michael A. Eckles.
(Tr. 531-533). The Court finds the ALJ did not commit reversible error in setting forth
Plaintiff’s severe impairments during the relevant time period.
C.

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
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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. A review of the
record reveals that after Plaintiff’s insured status had expired, she opened two businesses in
June of 2011, and at one of the businesses worked twenty-five hours per week up until she
turned the businesses over to another individual in July of 2012. The record further revealed
that after the expiration of her insured status, Plaintiff reported that she was able to take care
of her personal needs slowly; to prepare simple meals; to drive; to shop for groceries; to read,
watch television, and play computer games; to play bingo at the senior center; and to go to
church three times per week.
With respect to Plaintiff’s impairments, a review of the medical evidence reveals that
in June of 2010, Plaintiff was noted to have a normal gait, was able to stand without difficulty,
had intact insight and judgment, and had a normal mood. In July of 2010, after the expiration
of her insured status, Plaintiff reported that she was doing well with her nasal pillow masks,
and she denied any incontinence, joint pain, joint swelling or stiffness.
Therefore, although it is clear that Plaintiff suffers with some degree of limitation
which appears to have increased after the expiration of her insured status, she has not
established that she was unable to engage in any gainful activity during the time period in
question. Accordingly, the Court concludes that substantial evidence supports the ALJ’s
conclusion that Plaintiff’s subjective complaints were not totally credible for the relevant time
period.

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D.

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. 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 determining that Plaintiff maintained the RFC to perform sedentary work with
limitations prior to the expiration of her insured status, the ALJ considered the medical
assessments of the examining and non-examining agency medical consultants; Plaintiff’s
subjective complaints; and her medical records for the relevant time period. The Court notes
that in determining Plaintiff’s RFC, the ALJ discussed the medical opinions of examining and
non-examining medical professionals, and set forth the reasons for the weight given to the
opinions. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012) (“It is the ALJ’s function
to

resolve

conflicts

among

the

opinions

of

various

treating

and

examining

physicians”)(citations omitted); Prosch v. Apfel, 201 F.3d 1010 at 1012 (the ALJ may reject
8

the conclusions of any medical expert, whether hired by the claimant or the government, if
they are inconsistent with the record as a whole). The ALJ also took Plaintiff’s obesity into
account when determining that she could perform sedentary work. 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.
E.

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 testimony of a vocational expert,
who after listening to the ALJ’s proposed hypothetical question which included the limitations
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addressed in the RFC determination discussed above, testified that the hypothetical individual
would be able to perform Plaintiff’s past relevant work. 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 prior to the expiration of her insured status, Plaintiff could perform her past
relevant work as a social service worker, and a social service worker for health service as these
jobs are performed in the national economy.
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 15th day of April, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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