Herman v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 7, 2017. (jn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
KATHY L. HERMAN
CIVIL NO. 15-5257
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Kathy L. Herman, 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 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 her current applications for DIB and SSI on December 20,
2012, alleging an inability to work since April 1, 2011, due to osteoarthritis, osteoporosis,
degenerative bone disease and skin cancer. (Doc. 16, pp. 69, 158, 162). An administrative
video hearing was held on January 30, 2014, at which Plaintiff appeared with counsel and
testified. (Doc. 16, pp. 32-66).
By written decision dated July 21, 2014, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Doc. 16,
Specifically, the ALJ found Plaintiff had the following severe impairments:
osteoarthritis, osteoporosis and other unspecified arthropathies, and fibromyalgia. 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. 16, p. 20). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
perform the full range of light work as defined in 20 CFR 404.1567(b) and
(Doc. 16, p. 21). With the help of a vocational expert, the ALJ determined Plaintiff could
perform her past relevant work as an assistant manager. (Doc. 16, p. 25). With the use of the
Medical-Vocational Guidelines (Grids), the ALJ further found Plaintiff was not disabled. (Doc.
16, pp. 25-26).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on August 13, 2015. (Doc. 16, p. 7). 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. 1 (Docs.
The Court notes that Plaintiff indicates that due to the page limitation set on the appeal brief she was unable to
include case law on jobs and regulations. (Doc. 11, p. 9). Plaintiff’s counsel has worked on these types of cases
for numerous years and should know that a motion to exceed the page limitation is allowed and when
appropriate the Court will grant such motion.
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 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
national economy given her 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 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, 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 Two of the sequential analysis; 3) the ALJ erred
in determining Plaintiff’s RFC; and 4) the ALJ erred in determining Plaintiff could perform
her past relevant work.
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). 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.
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
activities. See Social Security Ruling 96-3p. The claimant has the burden of proof of showing
she 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 Plaintiff’s alleged mental impairment or hearing loss to be
severe impairments, the ALJ specifically discussed these 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”).
With respect to Plaintiff’s mental impairments, a review of the record reveals that
Plaintiff did not allege a mental impairment when she applied for benefits. See Dunahoo v.
Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001) (failure to allege disabling mental impairment in
application is significant, even if evidence of depression is later developed). The record also
fails to show that Plaintiff sought on-going and consistent treatment from a mental health
professional. 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). In this case, there is substantial evidence of record to support
the ALJ’s determination that Plaintiff did not have a severe mental impairment during the time
period in question. Accordingly, the Court finds the ALJ did not commit reversible error in
setting forth Plaintiff’s severe impairments.
Subjective Complaints and Symptom Evaluation:
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, 314 F.3d
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 revealed that Plaintiff indicated in a Function Report that she was able to take care of
her personal needs; to prepare simple meals; to do laundry and simple household cleaning; to
drive; to shop for groceries once or twice a month; to handle her personal finances; to talk on
the telephone or computer; and to go to her friend’s house on the weekend. (Doc. 16, pp. 197204). In December of 2011, July of 2012, and May of 2014, Plaintiff was noted as able to
ambulate independently, and to be able to perform all activities of daily living without
assistance. (Doc. 16, pp. 305, 309, 533). The record further revealed that Plaintiff sought
treatment after moving furniture, falling off a ladder, and painting for a day without taking a
break. (Doc. 16, 297, 511, 532). 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
With respect to Plaintiff’s alleged impairments, the record revealed that Plaintiff was
treated conservatively and appeared to experience some relief with the use of medication. 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). 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).
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she
has not established that she 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.
ALJ’s RFC Determination and Medical Opinions:
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. 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 determining that Plaintiff maintained the RFC to perform a full range of light work,
the ALJ considered the medical assessments of the non-examining agency medical consultants;
Plaintiff’s subjective complaints; and her medical records. The Court notes that in determining
Plaintiff’s RFC, the ALJ discussed the medical opinions the non-examining medical
professionals, and set forth the reasons for the weight given to the opinions. Renstrom v.
Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012) (“It is the ALJ’s function to resolve conflicts
among the opinions of various treating and examining physicians”)(citations omitted); Prosch
v. Apfel, 201 F.3d 1010 at 1012 (the ALJ may reject the conclusions of any medical expert,
whether hired by the claimant or the government, if they are inconsistent with the record as a
whole). Based on the record as a whole, the Court finds substantial evidence to support the
ALJ’s RFC determination.
Use of the Grids:
Plaintiff argues that the ALJ erred in determining that Plaintiff could perform her past
relevant work as an assistant manager. While the Court finds evidence to support the ALJ’s
finding, the ALJ also found Plaintiff was not disabled with the use of the Grids.
Once Plaintiff has established a prima facie case by showing an inability to perform
past relevant work, the burden of proof shifts to the Commissioner to show that Plaintiff has
the residual functional capacity to perform some other kind of work and that jobs are available
in the national economy which realistically fit her capabilities. Reed v. Sullivan, 988 F.2d 812,
815 (8th Cir. 1993). If the claimant is found to have only exertional impairments (affecting
the ability to perform physical labor), the Commissioner may meet this burden by referring to
the Grids which are fact-based generalizations about the availability of jobs for people of
varying ages, educational background, and previous work experience, with differing degrees
of exertional impairment. Foreman v. Callahan, 122 F.3d 24, 26 (8th Cir. 1997); Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992)(citations omitted). Given the Court’s finding that
substantial evidence supports the ALJ's determination that Plaintiff is capable of the full range
of light work, the Court believes the ALJ properly relied on the Grids, eliminating the need for
expert vocational testimony, in concluding that given Plaintiff's age, education, work
experience, and capacity for light work, Plaintiff was not disabled.
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 7th day of February, 2017.
/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?