Powell v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 7, 2018. (mjm)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
Civil No. 6:16-cv-06113
Commissioner, Social Security Administration
Jada Powell (“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 application 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. 7.1 Pursuant to this authority, the Court
issues this memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff’s application for SSI and DIB were filed on July 1, 2014. (Tr. 9). Plaintiff alleged
she was disabled due to epilepsy, degenerative hearing loss, depression, and graves disease. (Tr.
204). Plaintiff alleged an onset date of May 24, 2014. (Tr. 9). These applications were denied
initially and again upon reconsideration. Id. Thereafter, Plaintiff requested an administrative
hearing on her applications and this hearing request was granted. (Tr. 130).
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.”
Plaintiff’s administrative hearing was held on July 7, 2015. (Tr. 25). Plaintiff was present
and was represented by counsel, Sherri McDonough, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Stacy McKisick testified at this hearing. Id. At the time of this hearing, Plaintiff was
forty-one (41) years old and had a high school education with some college. (Tr. 18, 30-33).
On October 23, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s
applications for DIB and SSI. (Tr. 9-19). In this decision, the ALJ determined the Plaintiff met the
insured status requirements of the Act through September 30, 2016. (Tr. 11, Finding 1). The ALJ
also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 24,
2014, the alleged onset date. (Tr. 11, Finding 2).
The ALJ determined Plaintiff had the severe impairments of seizure disorder and
degenerative hearing loss. (Tr. 11, 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. 13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 14-17). 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 a full range of work at all exertional levels, but had non-exertional limitations (Tr. 14,
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17, 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. 18,
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 agricultural produce sorter with
72,020 such jobs in the nation and system surveillance monitor with 424,103 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 May 24, 2014, through the date of the decision. (Tr. 19, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 5). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-4).
On November 4, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on November 7, 2016. ECF No. 7. Both Parties have filed appeal briefs.
ECF Nos. 11, 12. This case is now ready for decision.
2. Applicable Law:
In reviewing this case, this 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
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
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).
Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to find Plaintiff met
a Listing, (B) in failing to fully and fairly develop the record, and (C) in the Step 5 determination.
ECF No. 11, Pgs. 2-14. In response, the Defendant argues the ALJ did not err in any of his findings.
ECF No. 12.
The ALJ must determine whether Plaintiff has a severe impairment that significantly limits
the physical or mental ability to perform basic work activities. A medically determinable impairment
or combination of impairments is severe if it significantly limits an individual’s physical or mental
ability to do basic work activities. See 20 C.F.R. §§ 404.1521 and 416.921.
The ALJ found Plaintiff did suffer from impairments considered to be severe within the
meaning of the Social Security regulations. These impairments included seizure disorder and
degenerative hearing loss. (Tr. 11, Finding 3). However, there was no substantial evidence in the
record showing Plaintiff’s condition was severe enough to meet or equal that of a listed impairment
as set forth in the Listing of Impairments. See 20 C.F.R. pt. 404, subpt. P, app.1. Plaintiff has the
burden of establishing that her impairment(s) meet or equal an impairment set out in the Listing of
Impairments. See Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990). Plaintiff has not met this burden.
Plaintiff argues she meets a Listing under Section 11.02 for her seizure disorder. ECF No.
11. Defendant argues Plaintiff has failed to establish she meets this Listing. ECF No. 12.
To meet a listing under Section 11.02, Plaintiff must show she has seizures that occur more
frequently than once a month, in spite of at least 3months of prescribed treatment. 20 C.F.R. pt. 404,
subpt. P, app. 1, § 11.02. Plaintiff has failed to provide medical evidence that documents the criteria
for the listed impairment are met.
As the ALJ indicated, the medical record does not indicate Plaintiff’s seizures occur more
than once a month. Additionally, Plaintiff’s physician, Dr. Daaif noted the seizures occur
approximately once a month. (Tr. 544). Furthermore, Dr. Gehrki indicated on May 6, 2015 that
Plaintiff had not had a seizure since March 20, 2015. (Tr. 519). The ALJ also correctly found the
medical evidence did not support the alleged severity of Plaintiff’s seizure disorder.
Whether Plaintiff meets a listed impairment is a medical determination and must be
established by medically acceptable clinical and laboratory diagnostic techniques. See 20 C.F.R. §§
404.1525(c), 404.1526(b), 416.925(c), 416.926(b). Plaintiff has not met this burden. I find
substantial evidence supports the ALJ’s determination that Plaintiff did not have an impairment or
combination of impairments equal to one listed in 20 C.F.R. pt. 404, subpt. P, app.1.
B. Duty to Develop Record
The ALJ has the duty to fully and fairly develop the record, even where the Plaintiff is
represented by counsel. If a physician’s report of a claimant’s limitations are stated only generally,
the ALJ should ask the physician to clarify and explain the stated limitations. See Vaughn v.
Heckler, 741 F. 2d 177,179 (8th Cir. 1984). Furthermore, the ALJ is required to order medical
examinations and tests if the medical records presented do not provide sufficient medical evidence
to determine the nature and extent of a claimant’s limitations and impairments. See Barrett v.
Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994). The ALJ must develop the record until the evidence
is sufficiently clear to make a fair determination as to whether the claimant is disabled. See Landess
v. Weinberger, 490 F. 2d 1187, 1189 (8th Cir. 1974). In addition, a claimant must show not only that
the ALJ failed to fully and fairly develop the record, but he must also show that he was prejudiced
or treated unfairly by the ALJ's failure. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993).
Plaintiff argues the ALJ should have sought further clarification from her treating physicians
regarding the severity of her impairments. ECF No. 11, Pg. 14. Defendant argues substantial
evidence shows the ALJ met his duty to fairly develop the record.
Initially the Court notes Plaintiff has failed to establish that the medical records presented
did not provide sufficient medical evidence to determine the nature and extent of her limitations and
impairments. See Barrett v. Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994). An ALJ is not required
to order a consultative evaluation of every alleged impairment; he simply has the authority to do so
if the existing medical sources do not contain sufficient evidence to make an informed decision. See
Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989).
Further, Plaintiff must not only show the ALJ failed to fully and fairly develop the record,
but that she was prejudiced or treated unfairly by the ALJ’s alleged failure to develop the record.
Plaintiff has not set forth any evidence showing had the ALJ requested additional consultative
examinations, the ALJ would have arrived at a different decision.
Therefore, I find the ALJ satisfied his duty to fully and fairly develop the record in this
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
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
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 a full range of work at all exertional levels, but had
non-exertional limitations. (Tr. 14, 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. 53-55). The ALJ found a significant number of jobs existed in the national
economy which Plaintiff could perform. (Tr. 18, Finding 10). Relying on the VE testimony, the ALJ
found Plaintiff was not under a disability as defined by the Act from May 24, 2014, through the date
of the decision. (Tr. 19, 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 in the
national economy for the vocational profile of the Plaintiff. Such testimony, based on a hypothetical
question consistent with the record, provided substantial evidence.
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 7th day of March 2018.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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