Salazar v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 22, 2018. (hnc)

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

LAURIE SALAZAR
vs.

PLAINTIFF
Civil No. 6:16-cv-06101

NANCY BERRYHILL
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Laurie Salazar (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying her applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and
XVI of the Act. The parties have consented to the jurisdiction of a magistrate judge to conduct any
and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment,
and conducting all post-judgment proceedings. ECF No. 5.1 Pursuant to this authority, the Court
issues this memorandum opinion and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff’s applications for DIB and SSI were filed on April 17, 2014. (Tr. 13). Plaintiff
alleged she was disabled due to problems with her arms, legs, and back; arthritis; bronchitis;
breathing problems; high blood pressure; and depression. (Tr. 241). Plaintiff alleged an onset date
of September 1, 2013, which was later amended to October 31, 2014. (Tr. 13, 36). These
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The docket numbers for this case are referenced by the designation “ECF. No.___” The transcript pages
for this case are referenced by the designation “Tr.”

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applications were denied initially and again upon reconsideration. (Tr. 68-157). Thereafter, Plaintiff
requested an administrative hearing on her applications and this hearing request was granted. (Tr.
158-159).
Plaintiff’s administrative hearing was held on August 12, 2015. (Tr. 32-67). Plaintiff was
present and was represented by counsel, Sherri McDonough, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Kola Brown testified at this hearing. Id. At the time of this hearing,
Plaintiff was forty-three (43) years old and obtained a GED. (Tr. 36, 39).
On September 21, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s
applications for DIB and SSI. (Tr. 13-23). In this decision, the ALJ determined Plaintiff met the
insured status requirements of the Act through September 31, 2018. (Tr. 15, Finding 1). The ALJ
also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since October 31,
2014, the amended onset date. (Tr. 15, Finding 2).
The ALJ determined Plaintiff had the severe impairments of morbid obesity, asthma, lower
back pain, and left ankle injury. (Tr. 15, Finding 3). The ALJ then determined Plaintiff’s
impairments did not meet or medically equal the requirements of any of the Listing of Impairments
in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 17, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 18-21). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC for sedentary work with occasional climbing, crouching, kneeling, and crawling; occasional
overhead reaching for no more than one-third of the day; no balancing, climbing ladders or scaffolds,
or exposure to unrestricted heights; no work in temperature extremes or around heavy or excessive
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chemicals, dust, or fumes; limited to unskilled work where interpersonal contact is incidental to work
performed; the complexity of tasks is learned and performed by rote, with few variables and little
judgment required; and supervision is simple, direct, and concrete. (Tr. 18, finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 21, Finding 6). The ALJ
found Plaintiff was unable to perform her PRW. Id. The ALJ, however, also determined there was
other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 22,
Finding 10). The ALJ based this determination upon the testimony of the VE. Id. Specifically, the
VE testified that given all Plaintiff's vocational factors, a hypothetical individual would be able to
perform the requirements of representative occupations such as document preparer with 45,000 such
jobs in the nation and callout operator with 20,000 such jobs in the nation. Id. Based upon this
finding, the ALJ determined Plaintiff had not been under a disability as defined by the Act from
October 31, 2014, through the date of the decision. (Tr. 23, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 8-9).
See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr.
1-7). On October 11, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to
the jurisdiction of the Court on October 11, 2016. ECF No. 5. Both Parties have filed appeal briefs.
ECF Nos. 11, 12. This case is now ready for decision.
2. Applicable Law:
In reviewing this case, the Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
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support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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. See 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 or her disability by establishing a physical or mental disability that lasted at least one
year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,
160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
a “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 or her disability, not simply his or her impairment, has lasted for at least twelve consecutive
months. See 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)
whether the claimant has an impairment that meets or equals a presumptively disabling impairment
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listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3. Discussion:
Plaintiff brings the present appeal claiming the ALJ erred: (A) failing to consider her
impairments in combination with others, (B) in the RFC determination, and (C) in the Step 5
determination. ECF No. 11, Pgs. 4-13. In response, the Defendant argues the ALJ did not err in any
of his findings. ECF No. 12.
A. Combination of Impairments
Plaintiff argues the ALJ erred by failing to consider her impairments in combination with
others. ECF No. 11, Pgs. 4-10. Specifically, Plaintiff argues the ALJ erred by failing to consider
her obesity in combination with her other impairments. However, under the facts in the present case
and after a thorough review of the ALJ’s opinion and the record in this case, the Court finds the ALJ
properly considered Plaintiff’s impairments in combination.
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 (2006). In the present action, in reviewing
these claimed impairments, the ALJ stated Plaintiff “does not have an impairment or combination
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of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.” (Tr. 17, Finding 4) (emphasis added). The ALJ also found, “after
consideration of the entire record,” the Plaintiff had the RFC to perform sedentary work with some
limitations. (Tr. 18, Finding 5). The ALJ went on to state Plaintiff’s RFC would not preclude her
from performing other work that exists in significant numbers in the national economy. (Tr. 22,
Finding 10).
These statements are sufficient under Eighth Circuit precedent to establish that the ALJ
properly considered the combined effect of a claimant’s impairments. See Hajek v. Shalala, 30 F.3d
89, 92 (8th Cir. 1994) (holding that statements such as “the evidence as a whole does not show that
the claimant’s symptoms . . . preclude his past work as a janitor” and “[t]he claimant’s impairments
do not prevent him from performing janitorial work . . .” sufficiently establish that the ALJ properly
considered the combined effects of the plaintiff’s impairments).
Furthermore, the ALJ did discuss evidence of Plaintiff’s obesity and found her morbid
obesity to be a severe impairment. (Tr. 15, Finding 3). The ALJ also specifically noted the
combined effects of obesity with other impairments can be greater than the effects of each of the
impairments considered separately and he considered the effects of Plaintiff’s obesity in determining
her RFC. (Tr. 20-21).
Thus, pursuant to the Eighth Circuit’s holding in Hajek, the Court finds the ALJ properly
considered Plaintiff’s impairments in combination. Plaintiff has alleged she suffers from a number
of impairments. However, the Court is not required to find a claimant is disabled simply because
he or she has alleged a long list of medical problems. The ALJ’s opinion sufficiently indicates the
ALJ properly considered the combined effect of Plaintiff’s impairments, and the ALJ properly
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considered the severity of the combination of Plaintiff’s impairments. See Hajek, 30 F.3d at 92.
B. RFC
Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required
to determine a claimant’s RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must
be based on medical evidence that addresses the claimant’s ability to function in the workplace. See
Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). The ALJ should consider “‘all the evidence
in the record’ in determining the RFC, including ‘the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.’” Stormo v. Barnhart,
377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002)).
The Plaintiff has the burden of producing documents and evidence to support his or her claimed
RFC. See Cox, 160 F.3d at1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The ALJ, however, bears the primary responsibility for making the RFC determination and
for ensuring there is “some medical evidence” regarding the claimant’s “ability to function in the
workplace” that supports the RFC determination. Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir.
2001).

Furthermore, the Court is required to affirm the ALJ’s RFC determination if that

determination is supported by substantial evidence on the record as a whole. See McKinney v. Apfel,
228 F.3d 860, 862 (8th Cir. 2000).
In this matter, the ALJ determined Plaintiff retained the RFC to perform sedentary work with
occasional climbing, crouching, kneeling, and crawling; occasional overhead reaching for no more
than one-third of the day; no balancing, climbing ladders or scaffolds, or exposure to unrestricted
heights; no work in temperature extremes or around heavy or excessive chemicals, dust, or fumes;
limited to unskilled work where interpersonal contact is incidental to work performed; the
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complexity of tasks is learned and performed by rote, with few variables and little judgment
required; and supervision is simple, direct, and concrete. (Tr. 18, finding 5). Substantial evidence
supports the ALJ’s RFC determination.
In his opinion, the ALJ considered Plaintiff’s alleged impairments and discounted those he
found were not credible. Plaintiff has not referenced any specific limitations the ALJ improperly
assessed or provided any medical evidence or other evidence demonstrating the ALJ erred in
assessing his limitations. Plaintiff has the burden of demonstrating her alleged limitations. See, e.g.,
Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000). Without more, the Court cannot find the ALJ
erred in assessing her RFC. The mere fact Plaintiff suffers from a number of different impairments
does not demonstrate she is disabled due to those impairments.
Also, it should be noted Plaintiff initially alleged an onset date of September 1, 2013 and
later amended the onset date to October 31, 2014 because she continued to work until that date. (Tr.
37). The majority of the medical evidence in the record came prior to Plaintiff’s amended onset date
of October 31, 2014.
Substantial evidence supports the ALJ’s RFC determination. Plaintiff has the burden of
establishing her claimed RFC. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)). Because Plaintiff has not met her
burden in this case and because the ALJ’s RFC determination is supported by sufficient medical
evidence, the Court finds the ALJ’s RFC determination should be affirmed.
C. Step 5 Determination
At Step Five of a disability determination, the SSA has the burden of establishing that a
claimant retains the ability to perform other work in the economy. See Snead v. Barnhart, 360 F.3d
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838, 836 (8th Cir. 2004). The SSA may meet this burden by either applying the Grids or by relying
upon the testimony of a VE. See Cox v. Astrue, 495 F.3d 614, 621 (8th Cir. 2004) (finding the
SSA’s denial of benefits was supported by substantial evidence where the VE’s testimony was based
on a correctly-phrased hypothetical question); Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003)
(finding the SSA’s denial of benefits was supported by substantial evidence where the ALJ applied
the Grids).
The SSA may not apply the Grids, and must hear testimony from a VE, where a claimant’s
RFC is significantly diminished by a nonexertional limitation. See McGeorge v. Barnhart, 321 F.3d
766, 768-769 (8th Cir. 2003). If, however, the SSA properly determines a claimant’s RFC is not
significantly diminished by a nonexertional limitation, then the SSA may rely exclusively upon the
Grids and is not required to hear the testimony from a VE. See McGeorge, 321 F.3d at 768-769.
In this matter, the ALJ heard testimony from a VE regarding Plaintiff’s ability to perform
work in the national economy. It is generally accepted that VE testimony, in response to a
hypothetical question, is substantial evidence if the hypothetical sets forth the credible impairments
with reasonable precision. See Starr v. Sullivan, 981 F.2d 1006 (8th Cir. 1992). It has further been
established the ALJ must only include in the hypothetical those impairments which the ALJ actually
finds credible, and not those which he rejects, assuming his findings are supported by substantial
evidence. See Onstad v. Shalala, 999 F.2d 1232 (8th Cir. 1993).
The ALJ found Plaintiff had the RFC for sedentary work with occasional climbing,
crouching, kneeling, and crawling; occasional overhead reaching for no more than one-third of the
day; no balancing, climbing ladders or scaffolds, or exposure to unrestricted heights; no work in
temperature extremes or around heavy or excessive chemicals, dust, or fumes; limited to unskilled
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work where interpersonal contact is incidental to work performed; the complexity of tasks is learned
and performed by rote, with few variables and little judgment required; and supervision is simple,
direct, and concrete. (Tr. 18, finding 5). In response to a hypothetical question containing these
limitations, the VE testified work existed in the national economy consistent with the limitations
found by the ALJ. (Tr. 54-64). The ALJ found a significant number of jobs existed in the national
economy which Plaintiff could perform. (Tr. 22, Finding 10). Relying on the VE testimony, the ALJ
found Plaintiff was not under a disability as defined by the Act. (Tr. 23, Finding 11).
I find the ALJ's hypothetical question properly set forth those limitations the ALJ found
credible and which are supported by the evidence of record. See Haynes v. Shalala, 26 F.3d 812,
815 (8th Cir. 1994); Rappoport v. Sullivan, 942 F.2d 1320, 1322 (8th Cir. 1991) (ALJ need only
include in his hypothetical question those impairments he accepts as true). The VE stated jobs
existed for the vocational profile of the Plaintiff. Such testimony, based on a hypothetical question
consistent with the record, provided substantial evidence.
4. Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating
these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 22nd day of February 2018.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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