Horton v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 14, 2017. (rg)

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

JACQUELYN HORTON

PLAINTIFF

v.

CIVIL NO. 15-5135

NANCY A. BERRYHILL,
Acting Commissioner, Social Security Administration 1

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Jacquelyn Horton, 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, disability insurance benefits
(“DIB”), and supplemental security income (“SSI”) benefits under the provisions of Titles II
and XVI of the Social Security Act (“Act”). 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 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 applications for DIB and SSI on April 10, 2012. (ECF

No. 14, pp. 16, 149). In her applications, Plaintiff alleges disability due to bipolar disorder,
depression, borderline personality disorder, and anxiety. (ECF No. 14, p. 153). Plaintiff
initially alleged an onset date of March 17, 1999, which Plaintiff subsequently amended at the
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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs
to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
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administrative hearing to April 8, 2009. (ECF No. 14, pp. 16, 39, 149). These applications were
denied initially and again upon reconsideration. (ECF No. 14, pp. 57-63, 67-71). Thereafter,
Plaintiff requested an administrative hearing on her denied applications, and this hearing
request was granted. (ECF No. 14, p. 76). Plaintiff’s administrative hearing was held on
September 23, 2013, in Jonesboro, Arkansas. (ECF No. 14. pp. 16, 34-49). Plaintiff was present
and was represented by Nicholas Coleman. Id. Plaintiff and Vocational Expert (“VE”)
Elizabeth Clem testified at this hearing. Id. At the time of this hearing, Plaintiff was twentyseven (27) years old, which is defined as a “younger person” under 20 C.F.R. §§ 404.1563(c),
416.963(c). (ECF No. 14, p. 37). As for her level of education, Plaintiff completed the twelfth
grade. (ECF No. 14, p. 37).
After this hearing, on January 14, 2014, the ALJ entered an unfavorable decision
denying Plaintiff’s applications for DIB and SSI. (ECF No. 14, pp. 13-27). In this decision, the
ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2009.
(ECF No. 14, p. 18, Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since March 17, 1999, her pre-amendment alleged onset date. (ECF No. 14,
p. 18, Finding 2). The ALJ determined Plaintiff had the following severe impairments: major
depressive disorder, borderline personality disorder, anxiety disorder, substance induced
psychotic disorder, and recurrent ovarian cysts. (ECF No. 14, pp. 18-19, Finding 3). Despite
being severe, the ALJ determined these impairments did not meet or medically equal the
requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Part 404
(“Listings”). (ECF No. 14, pp. 19-20, Finding 4).
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (ECF No.
14, pp. 20-25, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found

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her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff
retained the RFC to perform:
a full range of work at all exertional levels but with the following non-exertional
limitations: this individual can perform where interpersonal contact is limited.
Limited is defined as interpersonal contact that requires little interaction, such
as answering simple questions, responding appropriately to co-workers and
supervisors, interaction with the public is infrequent and considered to be an
essential job duty; 2 complexity of tasks is learned by demonstration and
repetition within 30 days, with few variables, little judgment and the
supervision required is simple, direct and concrete.
Id.
The ALJ then determined Plaintiff had no Past Relevant Work (“PRW”). (ECF No. 14,
p. 25, Finding 6). The VE testified at the administrative hearing regarding this issue. (ECF No.
14, pp. 47-49). Based on Plaintiff’s age, education, work experience, and RFC, the ALJ
determined there were jobs existing in significant numbers in the national economy Plaintiff
could perform, such as a commercial laundry worker and as a housekeeper. (ECF No. 14, p.
26, Finding 10). Because jobs exist in significant numbers in the national economy, which
Plaintiff can perform, the ALJ also determined Plaintiff had not been under a disability, as
defined by the Act, from March 17, 1999, her pre-amendment alleged onset date, through
January 14, 2014, the date of the ALJ’s decision. (ECF No. 14, p. 26, Finding 11).
Thereafter, on March 14, 2014, Plaintiff requested a review by the Appeals Council
(ECF. No. 14, pp. 11-12). The Appeals Council denied this request on April 15, 2015. (ECF

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The hypothetical question presented to the VE at the administrative hearing by the ALJ
specified “interaction with the public is infrequent and not considered to be an essential job
duty.” (ECF No. 14, p. 47) (emphasis added). Based on this Court’s examination of the
record as a whole, this distinction appears to be a scrivener’s error which did not result in a
practical impact on the ALJ’s decision. Therefore, this Court finds the omission of the word
“not” in the ALJ’s written decision of January 14, 2014, is immaterial and does not, in and of
itself, constitute reversible error.
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No. 14, pp. 5-10). On June 12, 2015, Plaintiff filed the present appeal with this Court. (ECF
No. 1). The Parties consented to the jurisdiction of this Court on June 30, 2015. (ECF No. 6).
This case is now ready for decision.
II.

Applicable Law:
This Court’s role is to determine whether substantial evidence supports the

Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th
Cir. 2011). We must affirm the ALJ’s decision if the record contains substantial evidence to
support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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.
Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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, we must affirm the ALJ’s decision. Id.
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), 1382c(a)(3)(D). A

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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(a)(4),
416.920(a)(4). Only if she reaches the final stage does the fact finder consider 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(a)(4)(v), 416.920(a)(4)(v).
III.

Discussion:
Plaintiff argues the following issues on appeal: 1) the Commissioner’s decision should

be reversed because the ALJ failed to acknowledge Plaintiff’s amended alleged onset date; and
2) the Commissioner’s decision should be reversed because the ALJ failed to comply with
Social Security Ruling (SSR) 00-4p in failing to inquire whether the VE’s testimony was
consistent with the Dictionary of Occupational Titles (“DOT”).
A.

Plaintiff’s Alleged Onset Date of Disability

The ALJ examined all of the evidence in the record, which encompassed the relevant
periods for Plaintiff’s Title II and Title XVI applications. The ALJ is required to examine the
whole record. 20 C.F.R. §§ 404.1520(a)(3), 416.920; See Reeder v. Apfel, 214 F.3d 984, 988

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(8th Cir. 2000) (“the ALJ is not free to ignore medical evidence but rather must consider the
whole record”). In determining the date of onset of a disability, the ALJ should consider the
claimant's alleged date of onset, her work history, and the medical and other evidence of her
condition. Grebenick v. Chater, 121 F.3d 1193, 1200 (8th Cir.1997); Social Security Ruling
83-20 (Social Security Administration 1983). The regulations clearly state that “the date
alleged by the individual should be used if it is consistent with all the evidence available.”
Social Security Ruling 83-20; Karlix v. Barnhart, 457 F.3d 742, 747 (8th Cir. 2006). Records
and medical opinions from outside the insured period are only useful in “helping to elucidate
the medical condition during the time for which benefits might be awarded.” Cox v. Barnhart,
471 F.3d 902, 907 (8th Cir. 2006).
Plaintiff argues the ALJ’s failure to amend the alleged onset date of disability in his
January 14, 2014, decision resulted in reversible error because Plaintiff’s substance abuse
“could likely preclude an award of benefits for that period.” (ECF No. 12, pp. 14-15). The ALJ,
however, did not rely on Plaintiff’s history of substance abuse in the decision. There is no
evidence the ALJ cited Plaintiff’s history of substance abuse against the credibility of her
testimony or subjective complaints. The ALJ, moreover, specifically stated:
[Plaintiff] has a history of reported methamphetamine and cocaine use. She
testified that she last used methamphetamine in 2010. The record confirms a
past history of methamphetamine and cocaine was found to be in her system,
but that she is no longer using any illegal substances. (Ex. 2F, 6F, 7F). The
undersigned acknowledges that there is a history of occasional drug abuse in
the record; however, it does not appear that [Plaintiff] is currently using any
illegal substances. The undersigned finds that [Plaintiff’s] past drug abuse is
not material to this decision.
(ECF No. 14, p. 24) (emphasis added). Further, for purposes of an award of benefits under
Title II of the Act, the ALJ had the ability to set Plaintiff’s actual date of onset of disability to
any date after Plaintiff gained insured status and before December 31, 2009, Plaintiff’s date
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last insured, had the ALJ determined Plaintiff’s impairments were disabling. Moreover, for
purposes of an award of benefits under Title XVI of the Act, the ALJ had the ability to set
Plaintiff’s actual date of onset of disability to any date before the ALJ’s January 14, 2014,
decision, had the ALJ determined Plaintiff’s impairments were disabling. Plaintiff’s argument
that the ALJ’s failure to incorporate the amended alleged onset date into his January 14, 2014,
decision resulted in any prejudice to Plaintiff, and prejudice specifically due to her history of
substance abuse, is therefore without merit.
B.

VE Testimony

We have long held, “the ALJ has an affirmative responsibility to ask about ‘any
possible conflict’ between VE evidence and the DOT.” Kemp ex rel. Kemp v. Colvin, 743 F.3d
630, 633 (8th Cir. 2014) (quoting Social Security Ruling (SSR) 00-4p (Dec. 4, 2000)); See also
Welsh v. Colvin, 765 F.3d 926, 929 (8th Cir. 2014) (“In [Kemp], we construed SSR 00-4p as
placing on the ALJ an affirmative responsibility to ask about ‘any possible conflict’ between
VE evidence and the DOT, and to obtain an explanation for any such conflict, before relying
on VE evidence to support a determination the claimant is not disabled”). Plaintiff asks this
Court for remand because the ALJ failed to ask the VE, at the administrative hearing, if any
possible conflict existed between the DOT and the VE’s testimony.
Plaintiff has failed to allege any possible conflict actually existed between the VE’s
testimony and the DOT. Plaintiff did not identify any possible conflict between the DOT and
the VE’s testimony during the administrative hearing, in her brief to the Appeals Council, or
in her brief to this Court. An examination of the two relevant listings in the DOT, commercial
laundry worker at DOT No. 361.685-018 and housekeeper at DOT No. 323.687-014, reveals
no possible inconsistencies between the hypothetical question posed to the VE and the two

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representative occupations the VE testified regarding. The ALJ’s responsibility to ask about
any possible conflict between VE evidence and the DOT is contingent upon the existence of a
possible conflict in which to inquire. See Kemp, 743 F.3d at 633. The ALJ’s hypothetical
question to the VE accurately reflected his RFC finding, there were no apparent inconsistencies
with the relevant DOT job descriptions provided by the VE, and the ALJ explained his decision
to credit the VE’s testimony. The ALJ has complied with SSR 00-4p. Based on the foregoing,
I find substantial evidence supports the ALJ’s reliance on the VE’s testimony. See Welsh v.
Colvin, 765 F.3d 926 (8th Cir. 2014) (citing Jones v. Astrue, 619 F.3d 963, 978 (8th Cir.
2010)).
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 is
hereby affirmed. The undersigned further finds that the Plaintiff’s Complaint should be, and is
hereby dismissed with prejudice.
IT IS SO ORDERED this 14th day of February, 2017.

/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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