Garrity v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on July 5, 2017. (rg)

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

LORAINE GARRITY

v.

PLAINTIFF

CIVIL NO. 16-5032

NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Lorraine Garrity, 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 supplemental security income (SSI) benefits 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).
I.

Procedural Background:
Plaintiff protectively filed her current application for SSI on February 17, 2011,

alleging an inability due to cluster clots in the lungs, Graves disease, a blood disorder, and

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Nancy A. Berryhill, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.

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panic attacks. (Doc. 10, pp. 206, 238). An administrative video hearing was held on May 1,
2012, at which Plaintiff appeared with counsel and testified. (Doc. 10, pp. 58-77).
In a written decision dated June 14, 2012, the ALJ found that Plaintiff retained the
residual functional capacity (RFC) to perform light work with limitations. (Doc. 10, pp. 8392). Plaintiff requested review of the unfavorable decision by the Appeals Council. (Doc. 10,
pp. 288-290). On September 5, 2013, the Appeals Council entered an order remanding the
case back to the ALJ. (Doc. 10, pp. 96-99). A supplemental administrative video hearing was
held on March 4, 2014. (Doc. 10, pp. 38-57).
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. 10,
p. 20). Specifically, the ALJ found Plaintiff had the following severe impairments: panic
disorder with agoraphobia, depressive disorder NOS, chronic pleuritic chest pain from remote
pulmonary embolism, fibromyalgia, morbid obesity, and hypothyroidism. 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. 10, p. 21). The ALJ found Plaintiff
retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 416.967(b) except the claimant is able
to perform work that is limited to simple, routine and repetitive tasks, involving
only simply, work-related decisions, with few, if any, workplace changes, and
no more than incidental contact with co-workers, supervisors and the general
public.
(Doc. 10, p. 22). With the help of a vocational expert, the ALJ determined that Plaintiff could
perform work as a price marker, and a plastics molding machine tender. (Doc. 10, p. 31).

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Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on December 7, 2015. (Doc. 10, 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.
11, 12).
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
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.

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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. § 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. § 416.920.
III.

Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ failed to find Plaintiff’s

irritable bowel syndrome a severe impairment; 2) the ALJ failed to properly assess Plaintiff’s
RFC by failing to consider Plaintiff’s need for supplemental oxygen; 3) the ALJ’s RFC is
conclusory and does not contain a function-by-function assessment as required by SSR 96-8p;

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and 4) the ALJ failed to proffer a hypothetical question to the vocational expert that precisely
described Plaintiff’s impairments. 2
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
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 all of Plaintiff’s alleged impairments to be severe
impairments during the time period in question, the ALJ 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
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The Court has reordered Plaintiff’s arguments to correspond with the five-step analysis utilized by the Commissioner.

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whether any such impairment, if considered separately, would be of sufficient severity”). After
reviewing the record as a whole, the Court finds the ALJ did not commit reversible error in
setting forth Plaintiff’s severe impairments during the relevant time period.

B.

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
at 966.
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 during the time period in question Plaintiff completed a Function Report
indicating that she had no energy and was basically unable to take care of her personal needs
adequately and was too weak to get out of bed most days. However, a review of the record
failed to reveal that Plaintiff reported this extreme lack of energy or inability to perform
activities of daily living to her treating physicians. The record revealed that Plaintiff went to
Colorado to help with a family business in August of 2012, and while Plaintiff testified that

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she was sent home by her family because she was unable to work, Plaintiff was not examined
by a physician again until April of 2013 after returning to Arkansas. The record revealed that
in October of 2013, Plaintiff was reminded of the importance of physical activity and Plaintiff
agreed to walk daily. (Doc. 10, p. 429). It is noteworthy that at times Plaintiff indicated that
she was unable to perform activities of daily living because she had no energy; however, at
other times Plaintiff indicated that she was unable to perform activities of daily living because
she was “panicky.”
Plaintiff argues that the ALJ did not properly address Plaintiff’s daily use of oxygen.
A review of the record revealed very little discussion of Plaintiff’s use of oxygen. Treatment
notes from Plaintiff’s treating physician, Dr. John L. Furlow, failed to indicate that Plaintiff
was using oxygen daily, and Dr. Furlow repeatedly found Plaintiff had clear lungs upon
examination. (Doc. 10, pp, 331, 332, 377, 379, 380, 382, 383, 392, 409, 438). Plaintiff
reported to Dr. Chester Lawrence Carlson at her March 25, 2014, consultative general physical
examination, that she used oxygen at night. (Doc. 10, pp. 467-471). Upon examination of
Plaintiff, Dr. Carlson found Plaintiff had normal breath sounds and opined that Plaintiff had
no physical limitations. Plaintiff was also examined by Dr. Karas on March 25, 2014. (Doc.
10, 474-479). Dr. Karas also noted normal respiratory functioning and opined that Plaintiff had
mild limitations with walking, carrying and lifting.
With regard to 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).

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With respect to Plaintiff’s alleged physical 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). It is noteworthy that at times Plaintiff denied experiencing joint pains, joint
swelling, arthralgias or myalgias; and was also found to have a normal musculoskeletal
overview on numerous occasions. (Doc. 10, pp. 371, 422, 428, 438, 445). 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.
C.

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,

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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.
“[A] treating source's opinion is not inherently entitled to controlling weight.” Myers
v. Colvin, 721 F.3d 521, 525 (8th Cir. 2013). A treating physician's opinion “is entitled to
controlling weight only to the extent it is consistent with medically acceptable clinical or
laboratory diagnostic data.” Casey v. Astrue, 503 F.3d 687, 692 (8th Cir. 2007). “It is well
established that an ALJ may grant less weight to a treating physician's opinion when that
opinion conflicts with other substantial medical evidence contained within the record.” Prosch
v. Apfel, 201 F.3d 1010, 1014–15 (8th Cir.2000). “When an ALJ discounts a treating
physician's opinion, he should give good reasons for doing so.” Brown v. Astrue, 611 F.3d
941, 951–52 (8th Cir.2010) (citation omitted).
In the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and his medical
records when he determined Plaintiff could perform light work with limitations during the time
period in question. The Court notes that in determining Plaintiff’s RFC, the ALJ discussed the
medical opinions of examining and 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).
Plaintiff argues that the ALJ improperly discounted the opinion of Plaintiff’s treating
physician, Dr. Furlow. On May 21, 2012, Dr. Furlow completed a Medical Source Statement
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opining that Plaintiff was able to perform less than sedentary work. (Doc. 10, p. 386). After
review, the Court finds that the ALJ did not err in discounting the opinion of Dr. Furlow. The
ALJ declined to give controlling weight to Dr. Furlow’s opinion for good and well-supported
reasons. See Goff v. Barnhart, 421 F.3d 785, 790–91 (8th Cir. 2005) (“[A]n appropriate finding
of inconsistency with other evidence alone is sufficient to discount [the treating physician's]
opinion.”). The ALJ also took Plaintiff’s obesity into account when determining Plaintiff’s
RFC. Heino v. Astrue, 578 F.3d 873, 881-882 (8th Cir. 2009) (when an ALJ references the
claimant's obesity during the claim evaluation process, such review may be sufficient to avoid
reversal). Based on the record as a whole, the Court finds substantial evidence to support the
ALJ’s RFC determination.
D.

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
conclusion that Plaintiff's impairments did not preclude her from performing work as a price
marker, and a plastics molding machine tender. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.
1996) (testimony from vocational expert based on properly phrased hypothetical question
constitutes substantial evidence).

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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 5th day of July 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE

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