Benedict v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 27, 2017. (rg)

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

JOHN BENEDICT

PLAINTIFF

v.

CIVIL NO. 15-5238

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, John Benedict, 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).
I.

Procedural Background:
Plaintiff protectively filed his current applications for DIB and SSI on March 21, 2012,

and March 28, 2012, respectively, alleging an inability to work since February 13, 2012, due
to bone spurs in his back, coronary artery disease, high blood pressure, nine heart attacks with
three stents, internal hemorrhoids with heavy bleeding, and a low blood count due to
hemorrhoid bleeding. (Doc. 12, pp. 62, 198, 201). An administrative video hearing was held

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on February 25, 2014, at which Plaintiff appeared with counsel and testified. (Doc. 12, pp. 3261).
By written decision dated March 21, 2014, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Doc. 12,
p. 17). Specifically, the ALJ found Plaintiff had the following severe impairments: sleep
apnea, chronic obstructive pulmonary disease, ischemic heart disease, hypertension, and
anemia. 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.
17). 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
he can occasionally use ropes or ladders and can occasionally stoop. He can
frequently use stairs, balance, and crawl, kneel, or crouch. He should avoid
hazards and concentrated exposure to pulmonary irritants.
(Doc. 12, p. 18). With the help of a vocational expert, the ALJ determined Plaintiff could
perform work as a cashier, an inspector, and an assembler. (Doc. 12, p. 21).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence submitted by Plaintiff, denied that request on July 30,
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. 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.

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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).
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 failed to find that Plaintiff’s

degenerative disc disease was a severe impairment; 2) the ALJ failed to evaluate whether
Plaintiff met Listing 3.02; 3) the ALJ failed to evaluate Plaintiff’s credibility; and 4) the
Appeals Council failed to consider additional evidence that was new, material, and related to
the period on or before the date of the ALJ’s decision;
A.

Plaintiff’s Impairments:

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). While “severity 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) (citations omitted). To be severe, an impairment
only needs to have more than a minimal impact on a claimant's ability to perform work-related

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activities. See Social Security Ruling 96-3p. The claimant 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 all of Plaintiff’s alleged impairments to be severe
impairments, the ALJ specifically discussed the alleged impairments in the decision, and
clearly stated that he considered all of Plaintiff’s impairments, including the impairments that
were found to be non-severe. 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 effect of all [the claimant's]
impairments without regard to whether any such impairment, if considered separately, would
be of sufficient severity”). The Court finds the ALJ did not commit reversible error in setting
forth Plaintiff’s severe impairments during the relevant time period.
B.

Evaluation of the Listed Impairment 3.02:

Plaintiff argues the ALJ erred by failing to determine that Plaintiff’s impairment
medically equals Listing 3.02 for Chronic Pulmonary Insufficiency.
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,
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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.
C.

Subjective Complaint and Symptom Evaluation:

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
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record reveals that Plaintiff reported that he was able to take care of activities of daily living
independently. (Doc. 12, pp. 629, 832, 872). Plaintiff also reported that he was able to lift ten
to twenty-five pounds, that he could drive and that he was able to do some household chores
during the time period in question.
As for Plaintiff’s alleged disabling respiratory impairments, as noted above, Plaintiff’s
medical providers repeatedly recommended that Plaintiff stop smoking and despite these
recommendations, Plaintiff continued to smoke throughout most of the relevant time period.
See Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997) (noting that a failure to follow
prescribed treatment may be grounds for denying an application for benefits). This is not a
case in which the correlation between Plaintiff's smoking and Plaintiff’s impairment is not
readily apparent. Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir. 2008) (citations omitted). To
the contrary, there is no dispute that smoking has a direct impact on Plaintiff’s pulmonary
impairments. Thus, the ALJ appropriately considered Plaintiff's failure to stop smoking when
evaluating Plaintiff’s complaints.
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.
D.

RFC Assessment:

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);

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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 period. 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 period in question.
E.

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

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conclusion that Plaintiff's impairments did not preclude him from performing work as a
cashier, an inspector, and an assembler. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)
(testimony from vocational expert based on properly phrased hypothetical question constitutes
substantial evidence).
F.

Evidence before the Appeals Council:

Plaintiff argues that the Appeals Council failed to consider the additional evidence
submitted to it after the ALJ’s decision.
A review of the record revealed that Plaintiff submitted medical evidence dated after
the ALJ’s decision. In the Notice of Appeals Council Action dated July 30, 2015, the Appeals
Council stated as follows:
We also looked at medical records from Northwest Family Care dated April 18,
2014, through May 7, 2014, and Barry Katz, M.D., dated April 22, 2014,
through June 25, 2014. The Administrative Law Judge decided your case
through March 21, 2014. The new information is about a later time. Therefore,
it does not affect the decision about whether you were disabled beginning on or
before March 21, 2014.
(Doc. 12, p. 6).
While the Appeals Council returned the medical records and did not make them part of
the administrative record, Plaintiff submitted these records with his appeal brief. In doing a de
novo review, the Court considered this evidence as it was submitted to the Appeals Council
and considered by it before denying review of the ALJ’s decision. After reviewing the record
as a whole, the Court finds substantial evidence supports that ALJ’s determination for the
relevant time period in question.

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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
should be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be
dismissed with prejudice.
DATED this 27th day of January, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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