McClun v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on September 12, 2017. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
CIVIL NO. 16-6090
NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration
Plaintiff, Florence McClun, 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 September 23, 2013,
alleging an inability to work since August 6, 2016, 2 due to bipolar disorder, mixed and
depression. (Tr. 9, 64, 198). An administrative video hearing was held on March 18, 2015, at
which Plaintiff appeared with counsel and testified. (Tr. 24-62).
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.
The ALJ indicated that Plaintiff’s onset dated is July 26, 2013. (Tr. 9, 34).
By written decision dated July 28, 2015, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 11).
Specifically, the ALJ found Plaintiff had the following severe impairments: polysubstance
abuse, an anxiety disorder, and a mood disorder. 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. 12). The ALJ found Plaintiff retained the residual functional capacity
perform a full range of physical activity at all exertional levels but with the
following nonexertional limitations: the claimant retains the mental ability to
understand, remember, and carryout simple jobs; instructions; make judgments
in simple work-related situations; respond appropriately to co-workers and
supervisors; respond appropriately to minor changes in usual work routines;
and, have no direct or indirect contract (sic) with the general public during
(Tr. 13-14). With the help of a vocational expert, the ALJ determined Plaintiff could perform
work as a dishwasher and a poultry line worker. (Tr. 18).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on August 22, 2016. (Tr. 1-7). 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. 10, 11).
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. 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.
Plaintiff argues the following issues on appeal: 1) the ALJ erred in finding Plaintiff
does not have an impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
Listing of Impairments:
Plaintiff argues that the ALJ erred by failing to determine that Plaintiff’s impairments
met or equaled Listings 1.02B, 12.04, 12.06, and 12.08 of the Listing of Impairments pursuant
to 20 CFR Part 404, Subpart P, Appendix 1.
The burden of proof is on the Plaintiff to establish that her impairments meet or equal
a listing. See Sullivan v. Zebley, 493 U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).
To meet a listing, an impairment must meet all of the listing's specified criteria. Id. at 530, 110
S.Ct. 885 (“An impairment that manifests only some of these criteria, no matter how severely,
does not qualify.”); Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “Medical
equivalence must be based on medical findings.” 20 C.F.R. § 416.926(b) (2003); Sullivan, 493
U.S. at 531 (“a claimant ... must present medical findings equal in severity to all the criteria
for the one most similar listed impairment”). In this case, the ALJ explicitly found Plaintiff’s
impairments considered singly and in combination, did not meet or medically equal the criteria
described in any of the impairments contained in the Listing of Impairments.
The Court notes that the ALJ did not explicitly address Listing 1.02B in the
However, with the exception of Plaintiff’s testimony that she
occasionally had to use crutches due to swollen lower extremities, there is no medical evidence
revealing that Plaintiff experienced any musculoskeletal limitations. The most recent medical
record dated January 28, 2015, indicated that Plaintiff denied arthralgias and exhibited a
normal gait. (Tr. 518-519). After reviewing the entire evidence of record, the Court finds
there is sufficient evidence to support the ALJ’s determination that Plaintiff’s impairments did
not medically equal a Listing.
Subjective Complaints and Symptom Evaluation:
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 revealed that Plaintiff could take care of her personal needs, to prepare simple meals, to
do light household chores, to drive and to use a computer for social networking. Plaintiff also
spent time with her boyfriend daily and with her son every other weekend. The record revealed
that in October of 2013, she was able to travel to Nevada with her boyfriend.
With respect to Plaintiff’s physical impairments, a review of the record revealed
Plaintiff sought very little treatment prior to her diagnosis of breast cancer in early 2014.
Subsequent to her cancer diagnosis, Plaintiff underwent a lumpectomy, as well as, rounds of
chemotherapy and radiation. Plaintiff reported mild fatigue during treatment but throughout
treatment, her physical examinations were within normal limits. As for Plaintiff’s mental
impairments, the record revealed that Plaintiff responded well to medication. Plaintiff also
experienced a decrease in her symptoms when she refrained from the use of illegal drugs. The
ALJ discussed Plaintiff’s substance abuse and found it was not a contributing factor to her
disability. However, the ALJ also pointed out that despite the recommendation to stop the
substance abuse by her medical providers, Plaintiff continued to use marijuana and meth during
the relevant time period. After reviewing the record as a whole, the Court finds substantial
evidence supports the ALJ’s determination that Plaintiff had mild restrictions of activities of
daily living; moderate difficulties in social functioning; moderate difficulties with
concentration, persistence and pace; and no episodes of decompensation for an extended
duration. While Plaintiff argues that she has concentration issues, a review of the medical
record revealed Plaintiff had normal memory, attention and concentration on November 5,
2013, January 6, 2014, April 12, 2014, and July 2, 2014. (Tr. 305, 312, 483, 490).
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.
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
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 work at all exertional levels with some limitations,
the ALJ considered Plaintiff’s subjective complaints, the medical records, and the evaluations
of the non-examining medical examiners. 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 considered Plaintiff’s obesity when determining her 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). After
reviewing the entire transcript, the Court finds substantial evidence supporting the ALJ’s RFC
determination for the time period in question.
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
dishwasher and a poultry line worker. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)
(testimony from vocational expert based on properly phrased hypothetical question constitutes
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 12th day of September 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE
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