Keller v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 17, 2012. (dmc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

DAVID KELLER

PLAINTIFF

v.

CIVIL NO. 11-6029

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, David Keller, 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 April 21, 2008,

alleging an inability to work since January 1, 2008, due to a back problem, knee problems, and
a hernia in his belly button. (Tr. 90, 95, 119). An administrative hearing was held on June 25,
2009, at which Plaintiff appeared with counsel and testified. (Tr. 31-45).
By written decision dated February 3, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 13).

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Specifically, the ALJ found Plaintiff had the following severe impairments: a soft tissue injury
of the lower limb; a disorder of the back; bilateral knee arthralgias; chronic low back pain status
post two degenerative disc disease operations; and moderate reactive (obstructive) airway
disease. (Tr. 13). 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. 14). 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 416.967(b). (Tr. 14). The ALJ, with the use
of the Medical-Vocational Guidelines (Grids), found Plaintiff was not disabled. (Tr. 21).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on February 22, 2011. (Tr. 4-7). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 8).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs.13, 14).
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
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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),
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 his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him 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, 416.916. Only
if the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work

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experience in light of his residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520, 416.916.
III.

Discussion:
Plaintiff contends that the ALJ erred in concluding that the Plaintiff was not disabled

because (1) the Commissioner’s decision was not supported by substantial evidence as Plaintiff
meets Listing 1.02(A), 1.05, and 1.07; (2) the Administrative Law Judge erred in failing to
consider the combined effects of Plaintiff’s impairments; (3) the Administrative Law Judge did
not give proper consideration of Plaintiff’s chronic pain; and (4) the Administrative Law Judge
failed to evaluate the severity of Plaintiff’s mental impairment listed in Appendix 1, Part 404,
Subpart P, Regulation No. 4 (Listings) §12.04 and 12.06. Defendant argues substantial evidence
supports the ALJ’s determination.
A.

Evaluation of the Listed Impairments 1.02, 1.05, and 1.07:

To meet the requirements of Listing 1.02, Plaintiff must establish that he suffers from a
“major dysfunction of a joint” caused by a “gross anatomical deformity” with involvement of
“one major peripheral weight-bearing joint” or involvement of “one major peripheral joint in
each upper extremity.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.02. Listing 1.05 pertains
to an amputation of an extremity, a hemipelvectomy or hip disarticulation. Id. at 1.05. Listing
1.07 pertains to a fracture of an upper extremity. Id. at 1.07.
The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit, and there was sufficient evidence for the ALJ to make
an informed decision. Therefore, the Court finds there is sufficient evidence to support the
ALJ’s determination that Plaintiff did not meet a Listing.
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B.

Combination of Impairments:

The Social Security Act requires the ALJ to consider the combined effect of all of the
claimant's impairments without regard to whether any such impairment, if considered separately,
would be of sufficient severity. See 20 C.F.R. § 404.1523.
The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit, and there was sufficient evidence for the ALJ to make
an informed decision. Therefore, the Court finds the ALJ properly considered Plaintiff’s
impairments both singularly and in combination.
C.

Subjective Complaints and Credibility Analysis:

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 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, and the Defendant’s well-stated reasons set
forth in his brief, it is clear that the ALJ properly considered and evaluated Plaintiff’s subjective
complaints, including the Polaski factors.

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The Court would also 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). The record also revealed
that Plaintiff was able to come up with the funds to support his two to three package a day
smoking habit, as well as to purchase alcohol during the relevant time period.
Based on the record as a whole, the Court finds there is substantial evidence to support
the ALJ’s credibility findings.
D.

Mental Impairment Assessment:

Plaintiff argues that the ALJ failed to properly address Plaintiff’s alleged mental
impairments. In making this argument, Plaintiff points to medical records dated in 1999. (Tr.
200, 211, 219, 220-221). Defendant argues that Plaintiff failed to seek treatment for a mental
impairment during the relevant time period.
With regard to Plaintiff’s alleged depression and anxiety, it is noteworthy that Plaintiff
did not allege a disabling mental impairment in his application 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
failed to demonstrate that Plaintiff sought treatment for mental impairments 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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The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit. The Court finds that the ALJ did not err in failing to
address the severity of Plaintiff’s alleged mental impairments.
E.

RFC Assessment:

Plaintiff also appears to claim that the ALJ’s RFC determination is not supported by
substantial evidence. Defendant argues that the ALJ’s findings are supported by the record.
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); 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 the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, including the assessments completed by Drs. Jerry Mann,
Ronald Crow, and A. Jack Somers, Jr.; Plaintiff’s subjective complaints; and his medical

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records when the ALJ determined Plaintiff maintained the RFC to perform a full range of light
work.
The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit, and there was sufficient evidence for the ALJ to make
an informed decision. Therefore, the Court finds there is sufficient evidence to support the
ALJ’s RFC findings.
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 17th day of July, 2012.

/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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