Cossey v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 23, 2016. (rg)

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

STEVE E. COSSEY

PLAINTIFF

v.

NO. 15-5108

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Steve E. Cossey, 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 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).
I.

Procedural Background:
Plaintiff protectively filed his current applications for DIB and SSI on April 10, 2012,

alleging an inability to work since April 1, 2010, due to memory problems, back problems and
leg problems. (Doc. 12, pp. 137, 139, 168). For DIB purposes, Plaintiff maintained insured
status through December 31, 2011. (Doc. 12, pp. 18, 146). An administrative video hearing
was held on August 8, 2013, at which Plaintiff appeared with counsel and testified. (Doc. 12,
pp. 32-51).

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By written decision dated January 15, 2014, the ALJ found Plaintiff was not disabled
prior to the expiration of his insured status on December 31, 2011, but that Plaintiff became
disabled on November 30, 2013, and remained disabled through the date of the decision. (Doc.
12, p. 18). Specifically, the ALJ found that since the alleged onset date, Plaintiff had the
following severe impairments: degenerative disc disease and obesity. (Doc. 12, p. 20).
However, after reviewing all of the evidence presented, the ALJ determined that since the
alleged onset date, 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. (Doc. 12, p. 21). The ALJ found that since the alleged onset date, Plaintiff retained the
residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
the claimant is able to occasionally climb, balance, crawl, kneel, stoop, and
crouch.
(Doc. 12, p. 21). With the help of a vocational expert, the ALJ determined that prior to
November 30, 2013, Plaintiff could perform work as a fishing lure assembler, a file clerk, and
an inspector and checker. (Doc. 12, p. 25).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on March 20, 2015. (Doc. 12, p. 5). 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.

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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 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 U.S.C. § 423(d)(3).
A Plaintiff must show that his disability, not simply his impairment, has lasted for at least
twelve consecutive months.

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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 his 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 his 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 his 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, 416.920.
III.

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

the record; 2) the ALJ erred in determining Plaintiff’s physical and mental impairments and by
not performing the psychiatric review technique; 3) the ALJ erred in assessing the credibility
of Plaintiff’s subjective complaints; and 4) the ALJ erred in determining Plaintiff’s RFC.
A.

Insured Status and Relevant Time Periods:

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 December 31, 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 April 1, 2010, his alleged onset date

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of disability, through December 31, 2011, the last date he was in insured status under Title II
of the Act.
In order for Plaintiff to qualify for DIB he must prove that on or before the expiration
of his insured status he 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).
With respect to Plaintiff’s SSI application, benefits are not payable prior to the date of
application, regardless of how far back disability may, in fact, be alleged or found to extend.
See 20 C.F.R. § 416.335. Therefore, the relevant period is from April 10, 2012, the date
Plaintiff protectively applied for SSI benefits, through November 30, 2013, the date Plaintiff
was found to be disabled.
B.

Full and Fair Development of the Record:

The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47
F.3d 935, 938 (8th Cir.1995). The ALJ's duty to fully and fairly develop the record is
independent of Plaintiff's burden to press his case. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th
Cir. 2010). The ALJ, however, is not required to function as Plaintiff's substitute counsel, but
only to develop a reasonably complete record. “Reversal due to failure to develop the record
is only warranted where such failure is unfair or prejudicial.” Shannon v. Chater, 54 F.3d 484,
488 (8th Cir. 1995). “While an ALJ does have a duty to develop the record, this duty is not

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never-ending and an ALJ is not required to disprove every possible impairment.” McCoy v.
Astrue, 648 F.3d 605, 612 (8th Cir. 2011). After reviewing the entire record, the Court finds
the record before the ALJ contained the evidence required to make a full and informed decision
regarding Plaintiff’s capabilities during the relevant time period. Accordingly, the undersigned
finds the ALJ fully and fairly developed the record.
C.

Plaintiff’s Impairments and Psychiatric Review Technique Form:

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). 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 Step Two requirement is only a threshold test
so the claimant's burden is minimal and does not require a showing that the impairment is
disabling in nature. See Brown v. Yuckert, 482 U.S. 137, 153-54 (1987). The claimant,
however, has the burden of proof of showing he 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 hand tremors or depression to be severe
impairments, the ALJ stated that he considered all of Plaintiff’s impairments, including the
impairments that were found to be non-severe. (Doc. 12, p. 19). 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 claimant's] medically determinable impairments ...,
including ... impairments that are not ‘severe’ ”); § 416.923 (ALJ must “consider the combined
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effect of all [the claimant's] impairments without regard to whether any such impairment, if
considered separately, would be of sufficient severity”). Thus, the ALJ's finding that Plaintiff's
alleged hand tremors and depression were not “severe” impairments does not constitute
reversible error.
Plaintiff also argues that the ALJ erred in not completing the psychiatric review
technique. The Eighth Circuit Court of Appeals has found the failure to perform the psychiatric
review technique to be harmless error where there is no credible evidence of a severe mental
impairment. Nielson v. Barnhart, 88 Fed.Appx. 145, 147 (8th Cir. 2004) (per curiam) (no
evidence of mental impairment, and ALJ made a finding that any alleged depression was not
severe); Cakora v. Barnhart, 67 Fed.Appx. 983, 985 (8th Cir. 2003) (per curiam) (no sufficient
evidence that the impairment was severe). After reviewing the record, the Court finds the
absence of a psychiatric review technique by the ALJ is harmless error in this case.
D.

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 his pain; (3) precipitating and aggravating factors; (4)
dosage, effectiveness, and side effects of his 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

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[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. A review of the
record reveals that during the relevant time period, Plaintiff was able to take care of his
personal needs but noted having problems putting on pants, and sitting up to eat; to prepare
simple meals; to shop when required; to drive; to pay bills; and to watch television. (Doc. 12,
pp. 186-189). The record also reveals that Plaintiff helped his daughter move a mobile home
in January of 2011, and that he reported an ability to perform activities of daily living without
assistance in August of 2012. (Doc. 12, pp. 383, 453).
With respect to Plaintiff’s degenerative disc disease, the record reveals that Plaintiff
received some relief with treatment. In September of 2010, Plaintiff reported that an injection
relieved 90% of his pain. (Doc. 12, p. 389). In January of 2012, Plaintiff sought emergency
treatment for a kidney stone. At that time, Plaintiff was noted to have a normal back inspection
with normal range of motion and no tenderness. (Doc. 12, p. 476). Medical records also reveal
that throughout the relevant time period, Plaintiff was noted to have a normal gait, and to be
able to stand without difficulty.
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, he
has not established that he 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 time period
in question.

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E.

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 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 specifically a
claimant’s limitations and to determine how those limitations affect his RFC.” Id.
In determining that Plaintiff maintained the RFC to perform light work with limitations
prior to November 30, 2013, the ALJ considered the medical assessments of the examining
and non-examining agency medical consultants; Plaintiff’s subjective complaints; and his
medical records, including the records of Dr. Cathy C. Luo.

The Court notes that in

determining Plaintiff’s RFC, the ALJ discussed the medical opinions of examining and nonexamining 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, whether hired by the claimant or the government, if they are inconsistent with

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the record as a whole). While Plaintiff argues the ALJ erred in not giving more weight to the
opinion of consultative examiner, Dr. Ted Honghiran, the Court finds the ALJ adequately
explained the basis for not adopting Dr. Honghiran’s opinion in its entirety.
With respect to Plaintiff’s obesity, although Plaintiff’s treating physicians noted
Plaintiff’s weight, his treating physicians did not suggest Plaintiff’s obesity imposed any
additional work-related limitations. See Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir.
2003). Based on the record as a whole, the Court finds substantial evidence to support the
ALJ’s RFC determination for the time period in question.
F.

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 him from performing work as a fishing
lure assembler, a file clerk, and an inspector and checker prior to November 30, 2013. 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 undersigned finds substantial

evidence supporting the ALJ's decision denying the Plaintiff benefits, and thus the decision

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should be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be
dismissed with prejudice.
DATED this 23rd day of August, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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