Fincher v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 2, 2016. (rg)

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

TARA DAWN FINCHER

PLAINTIFF

v.

NO. 15-5087

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Tara Dawn Fincher, 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 February 21, 2012,

alleging an inability to work since January 23, 2007, due to adult ADD, sacroiliac dysfunction,
a herniated disc, sciatica, a fractured vertebrae, arthritis, bone spurs, Crohn’s disease, anxiety,
and depression. 1 (Tr. 153). For DIB purposes, Plaintiff maintained insured status through
September 30, 2011. (Tr. 9, 185, 191). An administrative hearing was held on July 30, 2012,
at which Plaintiff appeared with counsel and testified. (Tr. 26-55).

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Plaintiff also filed an application for supplement security income (SSI) benefits on February 21, 2012. Plaintiff was
granted SSI benefits beginning January 1, 2012. (Tr. 9).

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By written decision dated November 7, 2013, the ALJ found that through her date last
insured, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 11).
Specifically, the ALJ found Plaintiff had the following severe impairments prior to the
expiration of her insured status: degenerative disc/joint disease, Crohn’s disease and/or
colitis/ileitis, anxiety, and depression. (Tr. 11). 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. 12). The ALJ found
that prior to the expiration of her insured status, Plaintiff retained the residual functional
capacity (RFC) to:
perform sedentary and light work as defined in 20 CFR 404.1567(a)(b) except
due to intestinal issues, she would need to work indoors. Further, she could not
climb ladders, ropes or scaffolds, and she could only occasionally climb stairs
and ramps, balance, stoop, kneel, crouch and crawl. She was limited to unskilled
repetitive, predictable jobs where the work plan is managed and supervised by
someone else. She could not work directly with the public, although it would
not be necessary that she be away from the public, and she could work in the
immediate vicinity of less than a dozen fellow employees. The staff of
employees would be fairly predictable with predictable responsibilities.
(Tr. 13). With the help of a vocational expert, the ALJ determined that prior to the expiration
of her insured status, Plaintiff could perform work as a mailroom sorter, an office helper, a
fishing float assembler, a compact assembler, an addressing clerk, and a document preparer.
(Tr. 19-20).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on February 13, 2015. (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. 7, 10).

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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
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).

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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 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 disregarding the

opinion and findings of the primary treating physician, Dr. Donnell; 2) the ALJ erred in failing
to consider all of Plaintiff’s impairments in combination; 3) the ALJ erred in his analysis and
credibility findings with regard to Plaintiff’s subjective complaints of pain; and 4) the ALJ
erred in finding Plaintiff retains the RFC to perform a limited range of light and sedentary
work. 2

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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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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 September 30, 2011. 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 January 23, 2007, her alleged onset
date of disability, through September 30, 2011, 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 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.

Combination of Impairments:

Plaintiff argues that the ALJ erred in failing to consider all of the claimant’s
impairments in combination.
The ALJ stated that in determining Plaintiff’s RFC, he considered “all of the claimant’s
impairments, including impairments that are not severe.” (Tr. 10). The ALJ further found that
the Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments. (Tr. 12). Such language demonstrates the ALJ

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considered the combined effect of Plaintiff’s impairments. Hajek v. Shalala, 30 F.3d 89, 92
(8th Cir. 1994).
C.

Subjective Complaints and Credibility Analysis:

We now address the ALJ's assessment of Plaintiff's subjective complaints. 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 United States Court of Appeals for the Eighth Circuit 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).
After reviewing the administrative record, it is clear that the ALJ properly considered
and evaluated Plaintiff’s subjective complaints, including the Polaski factors. In assessing
Plaintiff’s credibility, the ALJ noted that in March of 2012, six months after her insured status
expired, Plaintiff indicated that she was able to take care of her four-year-old son; to take care
of her personal needs, with the exception that she sometimes needed help putting on her pants,
tying her shoes and getting out of the bathtub; to prepare simple meals; to perform light
household chores; to drive; and to shop. Plaintiff also reported that she had friends come to
her house to play games and to watch movies, and that her friends sometimes brought their

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children to play with her son. Plaintiff also reported that she attended Bible study, listened to
music, read, and played board games with her family.
A review of the record also supports the ALJ’s determination that prior to Plaintiff’s
date last insured, her alleged impairments were not disabling. A review of the record reveals
that in January of 2011, Plaintiff reported that she considered herself to be in very good health
and that she was able to perform light exercise on a regular basis. While Plaintiff did seek
treatment for lower back pain and abdominal pain, for the time period in question, it appears
these impairments responded well to treatment. The record further supports the ALJ’s
determination that Plaintiff’s alleged mental impairments were not disabling prior to the
expiration of her insured status.
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 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.
D.

ALJ’s RFC Determination and Medical Opinions 3:

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

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The Court has combined Plaintiff’s first and fourth issues on appeal.

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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.
“The [social security] regulations provide that a treating physician's opinion ... will be
granted ‘controlling weight,’ provided the opinion is ‘well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] record.’” Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000) (citations
omitted). An ALJ may discount such an opinion if other medical assessments are supported
by superior medical evidence, or if the treating physician has offered inconsistent opinions. Id.
at 1013. Whether the weight accorded the treating physician's opinion by the ALJ is great or
small, the ALJ must give good reasons for that weighting. Id. (citing 20 C.F.R. §
404.1527(d)(2)).
In the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and her medical
records when he determined Plaintiff could perform light and sedentary work with limitations
prior to the expiration of her insured status. 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 the conclusions of any medical expert,
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whether hired by the claimant or the government, if they are inconsistent with the record as a
whole).
In determining Plaintiff’s RFC, the ALJ also addressed the letter completed by
Plaintiff’s counsel but signed off on by Plaintiff’s treating physician, Dr. Hugh Donnell. This
letter sets forth Plaintiff’s allegations that she was been limited in her activities due to back
pain since 2007. (Tr. 1134-1135). The ALJ indicated that some weight was given to Dr.
Donnell’s opinion; however, the ALJ also noted that there is no medical evidence of treatment
prior to October of 2010, and that the evidence for the time period in question failed to establish
that Plaintiff was as limited as alleged prior to the expiration of her insured status. 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.

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 prior to the expiration of her insured status, Plaintiff's impairments did not
preclude her from performing work as a mailroom sorter, an office helper, a fishing float
assembler, a compact assembler, an addressing clerk, and a document preparer. 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 2nd day of May, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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