Day v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on August 29, 2017. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JUDY M. DAY
CIVIL NO. 16-5217
NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration
Plaintiff, Judy M. Day, 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) 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)
Plaintiff protectively filed her current application for DIB on August 20, 2013, alleging
an inability to work since November 26, 2012, due to a fracture and compression of the
vertebrae and depression. (Tr. 13, 54, 141). An administrative video hearing was held on
December 18, 2014, at which Plaintiff appeared with counsel and testified. (Tr. 28-52).
By written decision dated August 18, 2015, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 15).
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.
Specifically, the ALJ found Plaintiff had the following severe impairments: a compression
fracture of her thoracic spine, degenerative disc disease, osteopenia, hypertension, obesity,
diabetes mellitus, a depressive disorder, not otherwise specified, and an anxiety disorder, NOS.
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. (Tr. 16). The ALJ found
Plaintiff retained the residual functional capacity (RFC) to:
lift/carry 20 pounds occasionally and 10 pounds frequently, push and/or pull
within those limitations, stand/walk six hours in an eight-hour workday with
normal breaks and sit six hours in an eight-hour workday with normal breaks.
In addition, she can occasionally climb ramps, stairs, ladders, ropes and
scaffolds, stoop and crouch. She is able to perform work where interpersonal
contact is routine but superficial and where the complexity of tasks is learned
by experience with several variables and judgment within limits. The
supervision required is little for routine but detailed for non-routine. She is
limited to jobs that do not require complex written communication.
(Tr. 18). With the help of a vocational expert, the ALJ determined Plaintiff could perform her
past relevant work as an office worker/general office worker. (Tr. 23).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on July 12, 2016. (Tr. 1-6). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 12, 13).
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), 1382c (a)(3)(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), 1382(3)(C). 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. 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); 20 C.F.R. § 404.1520.
Plaintiff argues the following issues on appeal: 1) the ALJ failed to consider all of
Plaintiff’s impairments in combination; 2) the ALJ erred in his analysis and credibility findings
in regard to Plaintiff’s subjective complaints of pain; 3) the ALJ erred in finding Plaintiff
retains the RFC to perform her past relevant work as an office worker/general office worker;
and 4) the ALJ erred in determining Plaintiff retains the RFC to perform a limited range of
light work. 2
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.” (Tr. 14). 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. (Tr. 19). Such language demonstrates the ALJ
The Court has re-ordered Plaintiff’s arguments to correspond with the five-step analysis utilized by the Commissioner.
considered the combined effect of Plaintiff’s impairments. Hajek v. Shalala, 30 F.3d 89, 92
(8th Cir. 1994).
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 during the relevant time period, Plaintiff reported she was able to take care
of her personal needs, to do light housekeeping slowly, to shop, to drive, to go to church once
a week, and to visit with her neighbors and family. Plaintiff also reported to Dr. Terry L. Efird
that she was able to mow her small yard with breaks, and could perform activities of daily
living slowly, but adequately. The ALJ noted that Plaintiff fell from a ladder in November of
2014, and sustained injuries that required the surgical correction of her wrist and hip. However,
the ALJ further noted that in December of 2014, Plaintiff testified that she required the use of
a cane to walk until her leg strengthened. (Tr. 45). Plaintiff further testified that her doctors
thought she would require the use of a cane for another month. Id.
With respect to Plaintiff’s alleged physical impairments, the record revealed that with
the exception of the injury sustained when she fell from a ladder in November of 2014, 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).
A review of the medical records revealed that Plaintiff reported an improvement in her pain
after a medication change to Dr. Regina E. Thurman in January of 2014. (Tr. 337). Plaintiff
also reported an improvement in her back pain after receiving a steroid injection in September
of 2014. (Tr. 366). Thus, while Plaintiff may indeed experience some degree of pain due to
her degenerative disc disease, osteoarthritis and pain, the Court finds substantial evidence of
record supporting the ALJ's finding that Plaintiff does not have a disabling back impairment.
See Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997) (upholding ALJ's determination
that claimant was not disabled even though she had in fact sustained a back injury and suffered
some degree of pain).
Regarding Plaintiff’s mental functioning, the record showed Plaintiff sought very little
treatment for these alleged impairments. 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). Based on the record as a whole, the
Court finds substantial evidence to support the ALJ’s determination that Plaintiff does not have
a disabling mental impairment.
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:
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 the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and her 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). The ALJ also took Plaintiff’s
obesity into account when determining Plaintiff’s RFC. Heino v. Astrue, 578 F.3d 873, 881882 (8th Cir. 2009) (when an ALJ references the claimant's obesity during the claim evaluation
process, such review may be sufficient to avoid reversal). After reviewing the entire transcript,
the Court finds substantial evidence supporting the ALJ’s RFC determination for the time
period in question.
Past Relevant Work:
Plaintiff has the initial burden of proving that she suffers from a medically determinable
impairment that precludes the performance of past work. Kirby v. Sullivan, 923 F.2d 1323,
1326 (8th Cir. 1991). Only after the claimant establishes that a disability precludes the
performance of past relevant work will the burden shift to the Commissioner to prove that the
claimant can perform other work. Pickner v. Sullivan, 985 F.2d 401, 403 (8th Cir. 1993).
According to the Commissioner's interpretation of past relevant work, a claimant will
not be found to be disabled if she retains the RFC to perform:
1. The actual functional demands and job duties of a
particular past relevant job; or
2. The functional demands and job duties of the
occupation as generally required by employers
throughout the national economy.
20 C.F.R. §§ 404.1520(e); S.S.R. 82-61 (1982); Martin v. Sullivan, 901 F.2d 650, 653 (8th Cir.
1990)(expressly approving the two part test from S.S.R. 82-61).
In this case, the ALJ relied upon the testimony of a vocational expert who discussed
the mental and physical requirements of Plaintiff’s past relevant work. See Gilbert v. Apfel,
175 F.3d 602, 604 (8th Cir. 1999) ("The testimony of a vocational expert is relevant at steps
four and five of the Commissioner's sequential analysis, when the question becomes whether
a claimant with a severe impairment has the residual functional capacity to do past relevant
work or other work") (citations omitted). After reviewing the record as a whole, the Court
finds substantial evidence to support the ALJ’s finding that Plaintiff could perform her past
relevant work as an office worker/general office worker as generally performed in the national
economy during the time period in question.
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.
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 29th day of August 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE
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