Allen v. Social Security Administration Commissioner
Filing
18
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on December 9, 2016. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
LAURA ANN ALLEN
PLAINTIFF
v.
CIVIL NO. 15-5248
CAROLYN W. COLVIN, Commissioner
Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Plaintiff, Laura Ann Allen, 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 period of disability and disability insurance benefits
(DIB) under the provisions of Title II 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 her current application for DIB on October 4, 2012, alleging
an inability to work since October 2, 2011, due to bilateral chronic leg pain, chronic back pain,
diabetes, moderate depression, anxiety, chronic diarrhea, high kidney levels, arthritis, and
chronic headaches. (Doc. 17, pp. 64, 147). An administrative video hearing was held on
November 13, 2013, at which Plaintiff appeared with counsel and testified. (Doc. 17, pp. 4363).
By written decision dated February 28, 2014, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Doc.
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17, p. 30). Specifically, the ALJ found Plaintiff had the following severe impairments:
degenerative disc disease of the lumbar spine (L2-L3 and L5-S1), non-insulin dependent
diabetes mellitus, and depression. 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. 17, p. 31). The ALJ found Plaintiff retained the residual functional capacity
(RFC) to:
perform light work as defined in 20 CFR 404.1567(b) except the claimant can
perform only simple jobs with simple instructions.
(Doc. 17, p. 33). With the help of a vocational expert, the ALJ determined Plaintiff could
perform work as a shipping and receiving weigher, a warehouse checker, and a photocopy
machine operator. (Doc. 17, p. 39).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional medical evidence submitted by Plaintiff, denied that request on
August 7, 2015. (Doc. 17, pp. 4-7). Subsequently, Plaintiff filed this action. (Doc. 1). This
case is before the undersigned pursuant to the consent of the parties. (Doc. 9). Both parties
have filed appeal briefs, and the case is now ready for decision. (Docs. 14, 16).
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.
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
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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 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
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national economy given her age, education, and experience. See 20 C.F.R. § 404.1520. Only
if the final stage is reached does the fact finder consider the 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.
III.
Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ erred in failing to consider
all of the Plaintiff’s impairments in combination; 2) the ALJ erred in his analysis and credibility
findings in regard to Plaintiff’s subjective complaints; 3) the ALJ erred in finding that Plaintiff
retained the RFC to perform a limited range of light work; and 4) the ALJ erred in failing to
fully and fairly develop the medical record.
A.
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 her 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 before
determining Plaintiff’s capabilities during the time periods in question. The Court notes that a
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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 both mental and physical RFC assessments
completed by Drs. Kevin Santulli, Clarence Ballard, Sheri L. Simon, and David L. Hicks, all
non-examining medical consultants (Doc. 17, pp, 68-73, 83-88), 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 period. Accordingly, the undersigned finds the ALJ fully and fairly
developed the record.
B.
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.” (Doc. 17, p. 29). The ALJ further
found that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled one of the listed impairments. (Doc. 17, p. 31). Such language demonstrates
the ALJ considered the combined effect of Plaintiff’s impairments. Hajek v. Shalala, 30 F.3d
89, 92 (8th Cir. 1994).
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C.
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 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 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 during the time period in question, Plaintiff indicted that she was able to
take care of her personal needs; to perform light household chores; to drive, noting she usually
had someone with her; to prepare simple meals; and to correspond with people by telephone
and through social networking. While Plaintiff indicated differing levels of activity during the
relevant time period, the ALJ pointed out these inconsistencies and the lack of objective
evidence to support some of the reported decreased activity when determining Plaintiff’s
credibility. 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
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“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 physical impairments, the record reveals that
Plaintiff was treated conservatively. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir.1998);
See Robinson v. Sullivan, 956 F.2d 836, 840 (8th Cir. 1992) (course of conservative treatment
contradicted claims of disabling pain). As for Plaintiff’s alleged mental impairments, the
record failed to demonstrate that Plaintiff sought on-going and consistent treatment from a
mental health professional during the relevant time period. See Gowell v. Apfel, 242 F.3d 793,
796 (8th Cir. 2001) (holding that lack of evidence of ongoing counseling or psychiatric
treatment for depression weighs against plaintiff’s claim of disability).
With regard to Plaintiff request that the Court address Plaintiff’s alleged obesity, a
review of the record reveals Plaintiff did not allege obesity as a disabling impairment when
she applied for benefits nor did she testify to problems she experienced due to obesity at the
hearing before the ALJ. See Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003) (claim
of obesity impairment waived on appeal where claimant did not raise any limitation from the
impairment in his application or during hearing).
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she
has not established that she was unable to engage in any gainful activity during the time period
in question. Accordingly, the Court concludes that substantial evidence supports the ALJ’s
conclusion that Plaintiff’s subjective complaints were not totally credible.
D.
The ALJ’s 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
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descriptions of her 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 h[er] RFC.” Id.
In finding Plaintiff able to perform light work with limitations, the ALJ considered
Plaintiff’s subjective complaints, the medical records, and the evaluations of the nonexamining 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 her activities that
would preclude 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 her from performing work as a
shipping and receiving weigher, a warehouse checker, and a photocopy machine operator.
Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from vocational expert based
on properly phrased hypothetical question constitutes substantial evidence).
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 9th day of December, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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