Miller v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on December 20, 2016. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OFARKANSAS
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
Plaintiff, Patricia 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 application for SSI on July 28, 2012, alleging an
inability to work since September 28, 2008, 1 due to bipolar disorder and schizophrenia. (Doc.
12, pp. 201-206, 227-229, 246). An administrative hearing was held on December 13, 2013,
at which Plaintiff appeared with counsel and testified. (Doc. 12, pp. 35-48).
By written decision dated February 14, 2014, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe –
Plaintiff’s attorney amended her onset date at the hearing to June 28, 2012. (Doc. 12, p. 38). In addition,
Plaintiff originally filed a Title II application, but her date last insured for Title II claims was June 30, 2009, and
her Title II claim was therefore dismissed. (Doc. 12, p. 21).
Mental Disorder (Mood Disorder, bipolar). 2 (Doc. 12, p. 23). 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. 12, p. 24). 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
non-exertional limitations: The claimant can perform work that is limited to
simple, routine, and repetitive tasks involving only simple work-related
decisions with few, if any, workplace changes and no more than incidental
contact with co-workers, supervisors, and the general public.
(Doc. 12, p. 25). With the help of the vocational expert (VE), the ALJ determined that during
the relevant time period, Plaintiff could perform such jobs as hand packer and machine
packer. (Doc. 12, p. 29).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on June 15, 2015. (Doc. 12, pp. 5-9). 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. 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.
This Court’s role is to determine whether the Commissioner’s findings are supported
by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583
In his brief filed on her behalf, Plaintiff’s attorney states that the ALJ “found Plaintiff had severe impairments
in epilepsy, arthropathies, major joint dysfunction and loss of visual acuity, but failed to find that her obesity
and knee spurs were a severe impairment.” (Doc. 10, p. 12). The Court is not sure where Plaintiff’s attorney
obtained this information because the ALJ found Plaintiff’s severe impairment was Mental Disorder (Mood
(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 in failing
to find that Plaintiff’s knee spurs and obesity were severe impairments; 2) Whether the ALJ
erred in his credibility analysis; and 3) Whether the ALJ erred because the ALJ failed to
inquire whether the VE’s testimony was consistent with the Dictionary of Occupational
Titles. (Doc. 10).
A. Severe Impairments:
Plaintiff argues that the ALJ erred by failing to find her knee and back problems were
severe impairments. An impairment is severe within the meaning of the regulations if it
significantly limits an individual’s ability to perform basic work activities. 20 C.F.R.
§1520(a)(4)ii). An impairment or combination of impairments is not severe when medical
and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s ability to
work. 20 C.F.R. §404.1521. The Supreme Court has adopted a “de minimis standard” with
regard to the severity standard. Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989).
“While ‘[s]everity is not an onerous requirement for the claimant to meet …it is also not a
toothless standard.’” Wright v. Colvin, 789 F.3d 847, 855 (8th Cir. 2015)(quoting Kirby v.
Astrue, 500 F.l3d 705, 708 (8th Cir. 2007)).
In this case, on November 3, 2012, Plaintiff presented to NMC – Springdale,
complaining of lower abdominal pain, and was diagnosed with left flank pain and acute
pyelonephritis. (Doc. 12, pp. 525-529). On November 26, 2012, Plaintiff presented to NMC –
Springdale, complaining of left knee pain. (Doc. 12, p. 507). The range of motion in her left
lower extremity was normal without pain, and there was diffuse, severe tenderness over the
entire joint without localization. (Doc. 12, p. 510). X-rays of her lumbar spine, left femur, left
tibia, fibula and left knee were negative. (Doc. 12, p. 511). Plaintiff was diagnosed with
ligamentous sprain, left knee and lumbar strain. (Doc. 12, p. 511). These are the only two
medical records relating to her knee and back problems, neither of which reveals any long
term impact or any impact on Plaintiff’s ability to function in the workplace. In addition,
Plaintiff only listed bipolar disorder and schizophrenia as her alleged impairments, which is
significant. Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001)(“The fact that she did not
allege depression in her application for disability benefits is significant even if the evidence
of depression was later developed.”)
Finally, where the ALJ finds at least one “severe” impairment and proceeds to assess
claimant’s RFC based on all alleged impairments, as the ALJ did in this case, any error in
failing to identify a particular impairment as “severe” at step two is harmless. Swartz v.
Barnhart, 188 Fed. Appx. 361, 388 (6th Cir. 2006); Elmore v. Astrue, 2012 WL 1085487 at
*12 (E.D. Mo. Mar. 5, 2012).
The Court finds there is substantial evidence to conclude that the ALJ did not err in
his determination of severe impairments.
B. 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 failed to properly apply the Polaski factors. In his
decision, the ALJ found that Plaintiff’s medically determinable impairment could reasonably
be expected to cause the alleged symptoms, but that Plaintiff’s statements concerning the
intensity, persistence and limiting effects of the symptoms were not entirely credible. (Doc.
12, p. 26). The ALJ addressed Plaintiff’s daily activities, noting that she was: able to feed and
dress herself and attend to personal hygiene without assistance; able to perform household
chores; able to care for her small grandchildren, drive a car, and go out alone. (Doc. 12, p.
24). Plaintiff was also able to sew and go to sewing club meetings, go to church, and go to
medical appointments. (Doc. 12, pp. 45, 268). In addition, the ALJ referenced the factors set
forth in Polaski, and concluded that the level of Plaintiff’s subjective pain and other
discomfort and the functional restrictions which they imposed were taken into account by
“carefully considering all pertinent evidence in the record as a whole.” (Doc. 12, p. 28).
The ALJ addressed the fact that the record revealed that Plaintiff’s alleged
psychologically based symptoms were adequately managed with medical treatment when she
was compliant with treatment, and that the evidence showed a history of non-compliance.
(Doc. 12, p. 28). He also noted that Plaintiff persisted in work-like activity in caring for her
grandchildren, and was planning to undertake work at least part time and move from her
daughter’s house when she received disability benefits. (Doc. 12, p. 28). It is also noteworthy
that Plaintiff was sporadic with attending counseling on occasions. (Doc. 12, pp. 485, 487).
With respect to side effects, on July 20, 2012, in her Pain Questionnaire and Function
Report, Plaintiff did not indicate she had any medication side effects to Prozac, Risperdal or
Abilify. (Doc. 12, p. 262).
The Court is mindful of the admonition given by the Eighth Circuit Court of Appeals
in Pate-Fires v. Astrue, 564 F.3d 935, 946 (8th Cir. 2009), where the Court noted that the ALJ
must take into account whether a mentally ill claimant’s failure to comply with prescribed
medication results from the mental illness itself. However, in Hensley v. Colvin, 829 F.3d
926, 935 (8th Cir. 2016), the Eighth Circuit noted that whether severe mental illness has
resulted in justifiable noncompliance is a “fact-intensive issue.” Id. In Hensley, Plaintiff was
prescribed and took medications that stabilized his mental impairments, PTSD and
depression and also was prescribed and expressed interest in completing a group therapy
program to treat his PTSD. Id. However, after attending one session in 2011, he twice failed
to attend and was discontinued from that program. The Court found that there was no
evidence that Hensley’s failure to attend “was a medically-determinable symptom of [his]
mental illness,” and therefore, the ALJ could reasonably conclude that his repeated failure to
attend a prescribed course of treatment was evidence that his mental impairment was less
disabling than Hensley claimed. Id.
The Court believes the facts of this case are very similar to those in Hensley. Plaintiff
reported to OGC on July 24, 2012, that her depression had been greatly reduced through
taking Abilify, and that she took care of her grandchildren and did most of the household
chores. (Doc. 12, p. 424). On August 15, 2012, Plaintiff reported to OGC that she was doing
well taking Abilify, Risperdal, and Prozac, and had no major depression or mood swings.
(Doc. 12, p. 449).
On February 5, 2013, Plaintiff reported to OGC an increase in depression due to
family problems and being out of medication. (Doc. 12, p. 472). On February 6, 2013, she
reported being out of medications for five days. (Doc. 12, p. 473).
On March 6, 2013, Plaintiff denied being depressed and said she had not had
hallucinations since before her Abilify dosage was increased. (Doc. 12, p. 479). At that same
time, it was reported that Plaintiff would call Arkansas Rehabilitation Services to inquire
about any job training and career counseling they could offer. (Doc. 12, p. 479).
On March 27, 2013, Plaintiff was given an order for lab work. (Doc. 12, p. 485).
Plaintiff reported her medications were working great, and rated her depression as 4/10, and
denied any anxiety. (Doc. 12, p. 480). She was continued on her medications.
On September 4, 2013, Plaintiff returned to OGC and said she had not been seen
since March, and had not had any therapy since March. She said the reason was she did not
have the money. (Doc. 12, p. 485). Plaintiff also had not had her lab work done, although
OGC was going to pay for it. (Doc. 12, p. 485). She reported being out of medications for
one month. Plaintiff was to restart her medications and therapy. (Doc. 12, p. 487). On
October 3, 2013, Plaintiff was doing better. (Doc. 12, p. 490). On November 6, 2013,
Plaintiff said she was better overall. (Doc. 12, p. 490). Clearly, Plaintiff knew she was better
when she took the medication, and indicated the reason she did not take it at times was
because she could not afford it. Thus, her failure to comply with prescribed medication was
not a result of her alleged mental impairment.
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s credibility findings.
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 13-4087-
MWB, 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. VE’s Testimony:
Plaintiff argues that the ALJ failed to comply with SSR 00-4p in failing to inquire
whether the VE’s testimony was consistent with the Dictionary of Occupational Titles
(DOT). Defendant concedes that the ALJ did not ask the VE about any possible conflict
between the VE’s testimony and the information provided in the DOT. However, as noted by
Defendant, the ALJ’s error was harmless because there was no conflict between the VE’s
testimony and the DOT. See Renfrow v. Astrue,496 F.3d 918, 921 (8th Cir. 2007). Both the
positions the VE testified Plaintiff could perform – hand packer and machine packer – are
medium unskilled jobs, and there is therefore no conflict between the information provided
by the VE and the DOT.
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 20th day of December, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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