Chastain v. Social Security Administration Commissioner, No. 5:2013cv05138 - Document 15 (W.D. Ark. 2014)
Court Description: MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 15, 2014. (tg)
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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION JESSIE L. CHASTAIN PLAINTIFF v. CIVIL NO. 13-5138 CAROLYN W. COLVIN, Commissioner Social Security Administration DEFENDANT MEMORANDUM OPINION Plaintiff, Jessie L. Chastain, 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 December 4, 2009, and December 10, 2009, respectively, alleging an inability to work since June 1, 2008, due to a bad back, a collapsed lung, and carpal tunnel syndrome. (Tr. 120, 124, 159). An administrative hearing was held on May 12, 2011, at which Plaintiff after being informed of his right to representation, testified without the assistance of a representative. (Tr. 21, 33-57). -1- AO72A (Rev. 8/82) By written decision dated May 27, 2011, the ALJ found that during the relevant time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 23). Specifically, the ALJ found Plaintiff had the following severe impairments: chronic obstructive pulmonary disease (COPD). 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. 23). The ALJ found Plaintiff retained the residual functional capacity (RFC) to: perform a wide range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant can lift/carry up to ten pounds frequently, twenty pounds occasionally. He can stand/walk six hours in an eight hour workday. He must avoid even moderate exposure to an atmosphere of environmental contaminants such as gases, odors, fumes, or poor ventilation. (Tr. 24). With the help of a vocational expert, the ALJ determined Plaintiff could perform work as a hand packager, a mail clerk, and a courier. (Tr. 28). Plaintiff then requested a review of the hearing decision by the Appeals Council, which after reviewing additional evidence submitted by Plaintiff, denied that request on May 13, 2013. (Tr. 1-8). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 7). Both parties have filed appeal briefs, and the case is now ready for decision. (Doc. 12, 14). 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. -2- AO72A (Rev. 8/82) 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), 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 -3- AO72A (Rev. 8/82) 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 argues the following issues on appeal: 1) the ALJ erred in determining Plaintiff s severe impairments; 2) the ALJ erred in assessing the credibility of Plaintiff s subjective complaints; 3) the ALJ erred in determining Plaintiff s RFC; and 4) the ALJ erred in failing to fully and fairly develop the record. A. Plaintiff s Impairments: At Step Two of the sequential analysis, the ALJ is required to determine whether a claimant's impairments are severe. See 20 C .F.R. § 404.1520(c). To be severe, an impairment only needs to have more than a minimal impact on a claimant's ability to perform work-related activities. See Social Security Ruling 96-3p. The Step Two requirement is only a threshold test so the claimant's burden is minimal and does not require a showing that the impairment is disabling in nature. See Brown v. Yuckert, 482 U.S. 137, 153-54 (1987). The claimant, however, has the burden of proof of showing he suffers from a medically-severe impairment at Step Two. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.2000). -4- AO72A (Rev. 8/82) The ALJ clearly considered all of Plaintiff s impairments, including the impairments that were found to be non-severe. See Swartz v. Barnhart, 188 F. App'x 361, 368 (6th Cir.2006) (where ALJ finds at least one severe impairment and proceeds to assess claimant's RFC based on all alleged impairments, any error in failing to identify particular impairment as severe at step two is harmless); Elmore v. Astrue, 2012 WL 1085487 *12 (E.D. Mo. March 5, 2012); see also 20 C.F.R. § 416.945(a)(2) (in assessing RFC, ALJ must consider all of [a claimant's] medically determinable impairments ..., including ... impairments that are not severe ); § 416.923 (ALJ must consider the combined effect of all [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity ). With regard to Plaintiff s alleged neck and back impairments, a review of the record revealed that on June 8, 2009, June 15, 2009, March 3, 2010, and August 4, 2010,1 Plaintiff s neck and musculoskeletal system had a normal range of motion without tenderness. (Tr. 256, 265, 296, 531). While Plaintiff did complain of chronic pain to Dr. Ornette Gaines, Dr. Gaines examination notes do not include any objective limitations in Plaintiff s spine or extremities. As for Plaintiff s alleged mental impairment, medical records consistently report a normal mood and affect, normal behavior, and normal judgment and thought content. (Tr. 256, 265, 296, 531). Plaintiff s cognition and memory were also noted as normal on August 4, 2010. (Tr. 532). The Court finds the ALJ did not commit reversible error in setting forth Plaintiff s severe impairments. 1 We note we consider this evidence, as it was submitted to the Appeals Council and the Appeals Council considered it before denying review. (Tr. 1-8). See Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994). -5- AO72A (Rev. 8/82) 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 (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. In a Function Report dated December 22, 2009, Plaintiff indicated that he was able to take care of his personal needs, to mow the lawn with a riding lawn mower once every three weeks, to drive alone, to shop in stores for minor things, to pay bills and count change, and to spend time with other watching television and movies daily. (Tr. 139-146). The record further revealed that Plaintiff sought treatment in June of 2009 for a fractured rib that occurred when Plaintiff fell along the railing of a boat, and in August of 2010 for chest pain after moving furniture. (Tr. 254, 528). The medical evidence revealed that Plaintiff has COPD. When discussing Plaintiff s respiratory impairment, the ALJ pointed out that despite the repeated recommendations to stop smoking, Plaintiff continued to smoke at least if not more one package of cigarettes a day -6- AO72A (Rev. 8/82) throughout the relevant time period. See Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997) (noting that a failure to follow prescribed treatment may be grounds for denying an application for benefits); Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir. 2008)(where claimant s smoking had a direct impact on his impairments, the ALJ appropriately considered claimant s failure to stop smoking in making his credibility determination). The Court would also note that while Plaintiff alleged an inability to seek treatment throughout the relevant time period 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 further revealed that Plaintiff was able to come up with the funds to support his smoking habit and alcohol consumption during the relevant time period. With regard to the testimony of Plaintiff s wife, after review of the evidence of the record as a whole, the Court finds the ALJ s failure to specifically address this testimony as harmless error in this case. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.2000) (ALJ's failure to give specific reasons for disregarding testimony of claimant's husband was inconsequential, as same reasons ALJ gave to discredit claimant could serve as basis for discrediting husband). Therefore, although it is clear that Plaintiff suffers with some degree of limitation, he has not established that he was unable to engage in any gainful activity during the relevant time period. Accordingly, the Court concludes that substantial evidence supports the ALJ s conclusion that Plaintiff s subjective complaints were not totally credible. -7- AO72A (Rev. 8/82) 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. 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. The [social security] regulations provide that a treating physician's opinion ... will be granted controlling weight, provided the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record. Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir.2000) (citations omitted). An ALJ may discount such an opinion if other medical assessments are supported by superior medical evidence, or if the treating physician has offered inconsistent opinions. Id. at 1013. Whether the weight accorded the treating physician's opinion by the ALJ is great or small, the ALJ must give good reasons for that weighting. Id. (citing 20 C.F.R. § 404.1527(d)(2)) -8- AO72A (Rev. 8/82) In the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff s subjective complaints, and his medical records when he determined Plaintiff could perform light work with limitations. The Court notes that in determining Plaintiff s RFC, the ALJ discussed the medical opinions of examining and nonexamining medical professionals, including the opinions of Drs. James H. Arkins, Bill F. Payne, and Neil Mullins, 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). With regard Dr. Gaines opinion that Plaintiff was unable to work in August of 2011 due to a deterioration of health and balance issues, Dr. Gaines treatment notes during the relevant time period failed to report Plaintiff s complaints of balance problems. (Tr. 401, 407). The Court notes that on May 31, 2011, Plaintiff was seen by Dr. Gaines with complaints of shortness of breath that was more pronounced with activity, and a lack of an appetite. (Tr. 407). The review of systems in these notes indicated that Plaintiff denied weakness at that visit. (Tr. 408). Based on the record as a whole, the Court finds substantial evidence to support the ALJ s RFC determination 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 -9- AO72A (Rev. 8/82) 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 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 (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 him from performing work as a a hand packager, a mail clerk, and a courier during the time period in question. 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 15th day of August, 2014. /s/ Erin L. Setser HON. ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE -10- AO72A (Rev. 8/82)
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