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Case 5:12-cv-05066-ELS Document 7 Filed 06/04/13 Page 1 of 8 PageID #: 45

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

WILLIAM TIMOTHY CAREY, II,

PLAINTIFF

v.

CIVIL NO. 12-5066

MICHAEL J. ASTRUE , Commissioner
Social Security Administration

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DEFENDANT

MEMORANDUM OPINION

Plaintiff, William Timothy Carey, II, 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 February 9, 2009,

alleging an inability to work since January 25, 2008, due to a military foot injury. (Tr. 138, 145,

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Carolyn Colvin became the Acting Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn Colvin has been substituted for Commissioner Michael
J. Astrue as the Defendant in this suit.

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175). An administrative hearing was held on March 19, 2010, at which Plaintiff appeared with

counsel and testified. (Tr. 25-47).

By written decision dated September 3, 2010, the ALJ found that during the relevant time

period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 14).

Specifically, the ALJ found Plaintiff had the following severe impairments: a foot injury,

depression, and anxiety. 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 sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). The
claimant can sit for six hours and stand/walk for two hours. He can occasionally
lift/carry ten pounds and frequently less than ten pounds. The claimant can
occasionally climb, balance, crawl, kneel, stoop and crouch. He cannot stand or
walk for more than thirty minutes at a time. The claimant can do work where
interpersonal contact is incidental to the work performed; complexity of tasks is
learned and performed by rote with few variables and little judgment required.
Supervision required is simple, direct and concrete.

(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform work

as a helper production worker/laborer, a production worker/laborer, and a hand packer. (Tr. 20,

255).

Plaintiff then requested a review of the hearing decision by the Appeals Council, which

denied that request on February 7, 2012. (Tr. 1-4). Subsequently, Plaintiff filed this action.

(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 3).

Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 5,6).

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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.

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

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),

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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 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 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, 416.920. Only

if the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work

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, 416.920.

III.

Discussion:

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

because: 1) the ALJ erred in failing to consider all of Plaintiff’s impairments in combination; 2)

the ALJ erred in the analysis and credibility findings in regard to Plaintiff’s subjective

complaints of pain; 3) the ALJ erred in finding that Plaintiff retained the RFC to perform less

than a full range of sedentary work; and 4) the ALJ failed to fully and fairly develop the record.

A.

Combination of Impairments:

Plaintiff argues that the ALJ erred in failing to consider all of the claimant’s impairments

in combination.

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The ALJ stated that in determining Plaintiff’s RFC, he considered “all of the claimant’s

impairments, including impairments that are not severe.” (Tr. 13). The ALJ further found that

the Plaintiff did not have an impairment or combination of impairments that met or medically

equaled one of the listed impairments. (Tr. 14). Such language demonstrates the ALJ considered

the combined effect of Plaintiff’s impairments. Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994).

B.

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 (8 Cir. 1984). While an ALJ may not

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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 her brief, it is clear that the ALJ properly considered and evaluated Plaintiff’s subjective

complaints, including the Polaski factors. The record revealed that during the relevant time

period Plaintiff was able to take care of his personal needs; do some household chores; drive;

watch movies or television with family; and play video games. (Tr. 183, 217). Plaintiff also

reported that he was able to ride his motorcycle occasionally. At the time of the administrative

hearing in March of 2010, Plaintiff testified that he had been working a temporary full-time

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office job since January of 2010, and that the job might end in April or might continue. (Tr. 32-

33).

With regard to Plaintiff’s alleged anxiety, it is noteworthy that Plaintiff did not allege a

disabling mental impairment in his applications 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 on-going and consistent treatment from a mental health

professional 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).

Therefore, although it is clear that Plaintiff suffers with some degree of pain, he has not

established that he is unable to engage in any gainful activity. See Craig v. Apfel, 212 F.3d 433,

436 (8th Cir. 2000) (holding that mere fact that working may cause pain or discomfort does not

mandate a finding of disability). Neither the medical evidence nor the reports concerning his

daily activities support Plaintiff’s contention of total disability. Accordingly, the Court

concludes that substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective

complaints were not totally credible.

C.

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

his limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v.

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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 non-examining

agency medical consultants, Plaintiff’s subjective complaints, and his medical records when he

determined Plaintiff could perform sedentary work with limitations. 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 substantial evidence of record to support the ALJ’s RFC findings for the

relevant time period.

D.

Fully and Fairly Develop the Record:

While an ALJ is required to develop the record fully and fairly, see Freeman v. Apfel,

208 F.3d 687, 692 (8th Cir.2000) (ALJ must order consultative examination only when it is

necessary for an informed decision), 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. See Strongson v. Barnhart, 361 F.3d 1066, 1071-72 (8th Cir.2004) (ALJ must develop

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record fully and fairly to ensure it includes evidence from treating physician, or at least

examining physician, addressing impairments at issue).

E.

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 (8 Cir. 2005). Accordingly, the Court finds that

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the vocational expert's opinion constitutes substantial evidence supporting the ALJ's conclusion

that Plaintiff's impairments did not preclude him from performing work as a helper production

worker/laborer, a production worker/laborer, and a hand packer. Pickney v. Chater, 96 F.3d 294,

296 (8th Cir. 1996)(testimony from vocational expert based on properly phrased hypothetical

question constitutes substantial evidence).

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 4th day of June, 2013.

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

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