Miller v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on December 19, 2016. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
Plaintiff, Brittney Miller, 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 claim for supplemental security income benefits (SSI) under the
provisions of Title 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 her current application for SSI on September 17, 2012,
alleging an inability to work since February 19, 2012, 1 due to severe depression, anxiety, and
post-traumatic stress disorder (PTSD). (Doc. 14, pp. 119-125, 144, 148). An administrative
hearing was held on December 12, 2013, at which Plaintiff appeared with counsel and
testified. (Doc. 14, pp. 28-40).
By written decision dated December 26, 2013, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe –
Plaintiff’s attorney amended the onset date to September 17, 2012, at the hearing held before the ALJ. (Doc.
14, p. 30).
PTSD (post traumatic stress disorder) and a mood disorder. (Doc. 14, p. 17). 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. 14, p. 17). The ALJ found Plaintiff
retained the residual functional capacity (RFC) to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: the claimant is able to perform work limited to
simple, routine and repetitive tasks, involving only simple, work-related
decision[sic] with few, if any, workplace changes, and no more than incidental
contact with co-workers, supervisors and the general public.
(Doc. 14, p. 19). With the help of the vocational expert (VE), the ALJ determined that during
the relevant time period, Plaintiff would be able to perform such jobs as janitor/industrial
cleaner, hand packer, and machine packer. (Doc. 14, p. 22).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on June 10, 2015. (Doc. 14, pp. 4-7). Subsequently, Plaintiff filed
this action. (Doc. 1). This case is before the undersigned pursuant to the consent of the
parties. (Doc. 6). Both parties have filed appeal briefs, and the case is now ready for decision.
(Docs. 12, 13).
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 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). 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 him to apply a five-step sequential
evaluation process to each claim for disability benefits: (1) whether the claimant had engaged
in substantial gainful activity since filing her claim; (2) whether the claimant had a severe
physical and/or mental impairment or combination of impairments; (3) whether the
impairment(s) met or equaled an impairment in the listings; (4) whether the impairment(s)
prevented the claimant from doing past relevant work; and (5) whether the claimant was able
to perform other work in the national economy given her age, education, and experience. See
20 C.F.R. §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 her RFC.
See McCoy v.
Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R.§416.920, abrogated on other
grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. §416.920.
Plaintiff raises the following issues in this matter: 1) Whether the ALJ erred by failing
to mention a witness statement; and 2) Whether the ALJ erred in his credibility analysis.
A. 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
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).
Plaintiff argues that the ALJ’s credibility assessment regarding Plaintiff’s subjective
complaints of pain is deficient because he failed to perform any meaningful analysis of the
In his decision, the ALJ found that Plaintiff’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms, but that her statements
concerning the intensity, persistence and limiting effects of the symptoms were not entirely
credible. (Doc. 14, pp. 19-20). The ALJ observed that Plaintiff had mild restriction in her
activities of daily living, and addressed the fact that Plaintiff was able to care for her two
small children, make bottles and change their diapers. (Doc. 14, p. 19). He also noted that
Plaintiff stated that she did better when taking psychotropic medications. (Doc. 14, p. 20).
The ALJ mentioned the fact that although Plaintiff was being treated at Ozark Guidance
Center (OGC), upon referral from Northwest Medical Center, she did not return for
subsequent treatment and was therefore discharged in August of 2013. (Doc. 14, p. 20). In
her October 26, 2012 Function Report – Adult, Plaintiff reported that she took care of her
five month old daughter and her dog, did the laundry, cleaned the bathroom and shopped
maybe once or twice a month. (Doc. 14, pp. 167-170). On February 19, 2013, Dr. Robert
Gale, of OGC, treated Plaintiff and noted that Plaintiff had stopped her medications in
January of 2013 because she thought she was pregnant, and as a result, the symptoms of
anxiety, depression, “OCD,” and PTSD returned. (Doc. 14, p. 290). He further noted that
Plaintiff tended to deal with herself passively and with immaturity, and that the combination
of prazosin, Prozac and trazodone helped considerably. (Doc. 14, p. 290).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s credibility analysis.
B. Witness Statements:
Plaintiff argues that the ALJ failed to properly consider the Third Party Function
Report properly offered into evidence, completed by Plaintiff’s step-mother, Kandy
In Ms. Frederick’s statement dated October 27, 2012, she indicated that she had
known Plaintiff for 14 years, but did not spend very much time with Plaintiff, and that they
did not do very much together. (Doc. 14, p. 177). Yet, Ms. Frederick reported that Plaintiff
was unable to work because she had anxiety, panic attacks and depression, and slept most of
the day. (Doc. 14, p. 178). She also reported that Plaintiff had no problem with her personal
care, and that she was depressed because she stayed in her room. (Doc. 14, p. 181).
It is not disputed that the ALJ made no mention of Ms. Frederick’s statement in his
decision. The Court finds guidance in a recent Eighth Circuit decision, Nowling v. Colvin,
813 F.3d 1110 (8th Cir. 2016), a case involving the ALJ’s duty to discuss witness statements.
In Nowling, the ALJ did not mention the testimony from Plaintiff’s sister-in-law, Dawn
Nowling, who testified extensively about her interactions with Plaintiff. Unlike the facts in
this case, Dawn Nowling “spent at least some time with Nowling on a daily basis, some days
spending most of the day with her.” Id. at 1117. The Eighth Circuit stated that it was
undisputed the ALJ’s opinion failed to address Dawn Nowling’s testimony expressly or
describe what weight, if any, the ALJ accorded her testimony, and “[i]n general such an
omission need not lead our court to reverse an ALJ’s otherwise-supported decision.” Id. at
1118. In Nowling, the Court had other concerns regarding the ALJ’s decision, and concluded
that “in light of the additional concerns detailed below, we cannot find the failure to address
Dawn Nowling’s testimony harmless nor characterize it merely as an ‘arguable deficiency in
opinion-writing technique.’” Id. (citations omitted).
In the case now before the Court, although the ALJ failed to address Ms. Frederick’s
statement, such omission did not affect the outcome of the case, because there is substantial
evidence to support the ALJ’s reasoning and decision, and as Ms. Frederick admitted she did
not spend much time with Plaintiff, such omission is harmless.
C. 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. Gilliam’s 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. “The ALJ is permitted to base its RFC determination on ‘a non-examining physician’s
opinion and other medical evidence in the record.’” Barrows v. Colvin, No. C 13-4087MWB, 2015 WL 1510159 at *11 (N.D. Iowa Mar. 31, 2015)(quoting from Willms v. Colvin,
Civil No. 12-2871, 2013 WL 6230346 (D. Minn. Dec. 2, 2013)).
The Court finds there is substantial evidence to support the ALJ’s RFC determination.
D. Hypothetical Question to VE:
After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical questions the ALJ posed to the VE 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 VE’s opinion constitutes substantial evidence supporting the ALJ's conclusion that
Plaintiff would be able to perform jobs such as, janitor/industrial cleaner, hand packer, and
machine packer. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from
vocational expert based on properly phrased hypothetical question constitutes substantial
Accordingly, having carefully reviewed the record, the Court finds substantial
evidence supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision
is hereby affirmed. The Plaintiff’s Complaint should be, and is hereby, dismissed with
IT IS SO ORDERED this 19th day of December, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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