Romine v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on November 10, 2016. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
RONNIE A. ROMINE
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Ronnie A. Romine, 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 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 his current applications for DIB and SSI on July 3, 2012,
alleging an inability to work since August 1, 2010, due to congestive heart failure, right arm
problems, arthritis, breathing problems, leg problems, and high blood pressure. (Doc. 13, pp.
73, 179, 185, 214). For DIB purposes, Plaintiff maintained insured statues through March 31,
2013. (Doc. 13, pp. 20, 195). An administrative video hearing was held on August 22, 2013,
at which Plaintiff appeared with counsel and testified. (Doc. 13, pp. 35-70).
By written decision dated December 20, 2013, the ALJ found that during the relevant
time periods, Plaintiff had an impairment or combination of impairments that were severe.
(Doc. 13, p. 22). Specifically, the ALJ found Plaintiff had the following severe impairments:
cardiomyopathy, fractured ribs, and residuals of an injury to the right dominant hand.
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. (Doc. 13, p. 23). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
his is limited to frequent handling with his dominant right hand.
(Doc. 13, p. 23). With the help of a vocational expert, the ALJ determined Plaintiff could
perform work as a counter-clerk, an assembly worker, and an inspector and tester. (Doc. 13,
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on May 15, 2015. (Doc. 13, pp. 5-10). 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.
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 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.
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.
Plaintiff argues the following issues on appeal: 1) the ALJ failed to fully and fairly
develop the record; 2) the ALJ erred at Step Three of the Sequential Evaluation; 3) the ALJ
failed to consider Plaintiff’s impairments in combination; 4) the ALJ erred in assessing
Plaintiff’s credibility; and 5) the ALJ erred in determining Plaintiff’s RFC.
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 March 31, 2013. 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 August 1, 2010, his alleged onset date
of disability, through March 30, 2013, the last date he was in insured status under Title II of
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 July 3, 2012, the date Plaintiff
protectively applied for SSI benefits, through December 20, 2013, the date of the ALJ’s
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
never-ending and an ALJ is not required to disprove every possible impairment.” McCoy v.
Astrue, 648 F.3d 605, 612 (8th Cir. 2011).
Plaintiff argues that the ALJ erred in failing to obtain a RFC assessment from an
examining physician in 2013, before determining Plaintiff’s capabilities during the time
periods in question. The Court notes that a RFC assessment from a treating physician, although
helpful, is not required. See Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)(the medical
evidence, State agency physician opinions, and claimant's own testimony were sufficient to
assess residual functional capacity); Stormo v. Barnhart, 377 F.3d 801, 807–08 (8th Cir.
2004)(medical evidence, State agency physicians' assessments, and claimant's reported
activities of daily living supported residual functional capacity assessment).
In this case, the record consists of physical RFC assessments completed by nonexamining medical consultants, a consultative physical evaluation, and Plaintiff’s medical
records. 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 periods. Accordingly, the undersigned finds the ALJ fully and fairly
developed the record.
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.” 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. Such language demonstrates the ALJ considered the
combined effect of Plaintiff’s impairments. Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994).
Evaluation of the Listed Impairments 4.02 and 4.11:
The burden of proof is on the Plaintiff to establish that his impairment meets or equals
a listing. See Sullivan v. Zebley, 493 U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).
To meet a listing, an impairment must meet all of the listing's specified criteria. Id. at 530, 110
S.Ct. 885 (“An impairment that manifests only some of these criteria, no matter how severely,
does not qualify.”); Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “Medical
equivalence must be based on medical findings.” 20 C.F.R. § 416.926(b) (2003); Sullivan, 493
U.S. at 531 (“a claimant ... must present medical findings equal in severity to all the criteria
for the one most similar listed impairment”). In this case, the ALJ found the medical evidence
does not show medical findings that are the same or equivalent to a listed impairment.
The Court finds, based upon the record as a whole Plaintiff’s argument is without merit,
and there was sufficient evidence for the ALJ to make an informed decision. Accordingly, the
Court finds there is sufficient evidence to support the ALJ’s determination that Plaintiff’s
impairments do not medically equal a Listing.
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
[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 Plaintiff completed a Function Report in July of 2012, indicating that he
could take care of his personal needs, perform light household chores, drive, help take care of
20 chickens, watch television, and sit and talk with others. This level of activity belies
Plaintiff’s complaints of pain and limitation and the Eighth Circuit has consistently held that
the ability to perform such activities contradicts a Plaintiff’s subjective allegations of disabling
pain. See Hutton v. Apfel, 175 F.3d 651, 654-655 (8th Cir. 1999) (holding ALJ’s rejection of
claimant’s application supported by substantial evidence where daily activities– making
breakfast, washing dishes and clothes, visiting friends, watching television and driving-were
inconsistent with claim of total disability). The record further reveals that Plaintiff received
unemployment benefits during the relevant time period. While the receipt of these benefits is
not conclusive, applying for unemployment benefits adversely affects credibility because an
unemployment applicant “must hold himself out as available, willing and able to work. Smith
v. Colvin, 756 F.3d 621, 625 (8th Cir. 2014).
With respect to Plaintiff’s alleged impairments, the record revealed that Plaintiff
responded well to treatment and medication. Brace v. Astrue, 578 F.3d 882, 885 (8th Cir. 2009)
(“If an impairment can be controlled by treatment or medication, it cannot be considered
disabling.”)(citations omitted). While Plaintiff argues that he has been unable to move about
without crutches since injuring his knee in November of 2012, medical records dated April and
May of 2013, revealed that Plaintiff had full range of motion in his extremities, and a normal
gait. (Doc. 13, pp. 390, 396).
The Court would note that while Plaintiff alleged an inability to seek treatment due to
a lack of finances, the record is void of any indication that Plaintiff had been denied treatment
due to the lack of funds. Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding
that lack of evidence that plaintiff sought low-cost medical treatment from her doctor, clinics,
or hospitals does not support plaintiff’s contention of financial hardship). It is noteworthy, that
Plaintiff was able to come up with the funds to purchase chewing tobacco and alcohol during
the relevant time periods.
With regard to the Function Report completed by Plaintiff’s aunt and her testimony at
the administrative hearing, the ALJ properly considered this evidence but found it
unpersuasive. This determination was within the ALJ's province. See Siemers v. Shalala, 47
F.3d 299, 302 (8th Cir. 1995); Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993).
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, he
has not established that he 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.
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 finding Plaintiff able to perform light work with limitations, the ALJ considered
Plaintiff’s subjective complaints, the medical records of his treating and examining physicians,
and the evaluations of the 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 his activities that would preclude him performing the RFC determined during
the relevant time periods. 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 periods in question.
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 counterclerk, an assembly worker, and an inspector and tester. Pickney v. Chater, 96 F.3d 294, 296
(8th Cir. 1996) (testimony from vocational expert based on properly phrased hypothetical
question constitutes substantial evidence).
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 10th day of November, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?