Wagner v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

SHANNON WAGNER PLAINTIFF

vs. Civil No. 2:16-cv-02262

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Shannon Wagner (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social

Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of

the Commissioner of the Social Security Administration (“SSA”) denying her applications for

Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), and a period of

disability 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. 4. Pursuant to this authority, the Court issues

this memorandum opinion and orders the entry of a final judgment in this matter.

1. Background:

Plaintiff protectively filed her disability applications on November 17, 2014 (DIB) and on

December 1, 2014 (SSI). (Tr. 11, 241-249). In these applications, Plaintiff alleges being disabled

due to migraines, back problems, neck problems, feet problems, high blood pressure, a mini stroke,

asthma, “female pain issues,” obesity, and “gray matter effects motor skills.” (Tr. 265). Plaintiff

alleges an onset date of April 20, 2013. (Tr. 11). These applications were denied initially and again

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upon reconsideration. (Tr. 192-197).

Plaintiff requested an administrative hearing on her applications. (Tr. 197). This request was

granted, and Plaintiff’s administrative hearing was held on September 4, 2015 in Fort Smith,

Arkansas. (Tr. 34-88). At this hearing, Plaintiff was present and was represented by Michael

Hamby. Id. Plaintiff and Vocational Expert (“VE”) Floyd Massey testified at this hearing. Id.

During this hearing, Plaintiff testified she was forty-three (43) years old, which is defined as a

“younger person” under 20 C.F.R. § 404.1563(c) (DIB) and 20 C.F.R. § 416.963(c) (SSI). (Tr. 40).

As for her education, Plaintiff testified she had obtained her GED. (Tr. 42-43).

On November 17, 2015, after the administrative hearing, the ALJ entered a fully unfavorable

decision denying Plaintiff’s applications. (Tr. 8-27). The ALJ determined Plaintiff met the insured

status requirements of the Act through March 31, 2016. (Tr. 13, Finding 1). The ALJ determined

Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 20, 2013, her alleged

onset date. (Tr. 13, Finding 2). The ALJ determined Plaintiff had the following severe impairments:

morbid obesity; migraines; hypertensive vascular disease; cervical, thoracic ,and lumbar degenerative

disease; plantar fasciitis; GERD; diabetes mellitus; asthma “and/or” mild persistent reactive airway

disease; obstructive sleep apnea; major depressive disorder; and anxiety. (Tr. 13-15, Finding 3).

The ALJ also determined Plaintiff’s impairments did not meet or medically equal the requirements

of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”).

(Tr. 15-17, Finding 4).

In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.

(Tr. 17-25, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her

claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained

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the capacity to perform the following:

After careful consideration of the entire record, I find that the claimant has the

residual functional capacity to lift up to 20 pounds occasionally, lift or carry up to 10

pounds frequently, stand and/or walk up to two of eight hours or sit up to six hours

with normal breaks; no climbing ladders, ropes or scaffolds; occasionally climb entry

ramps and stairs; frequently balance; occasionally stoop, kneel and crouch; never

crawl; avoid concentrated exposure to moving machinery or unprotected heights; no

concentrated to exposure to extremes of heat/cold/wetness/humidity; no concentrated

exposure to chemicals, fumes, dust, and other pulmonary irritants; frequently handle

and finger bilaterally; can understand, remember, and carry out simple, routine and

repetitive tasks but not at a production rate pace (e.g. assembly line work); can

perform simple work-related decisions, use judgment, accept instructions; and can

respond appropriately to changes in routine work settings.

Id.

Considering her RFC, the ALJ determined Plaintiff did not retain the capacity to perform any

of her PRW. (Tr. 25, Finding 6). The ALJ then determined whether Plaintiff retained the capacity

to perform other work existing in significant numbers in the national economy. (Tr. 26-27, Finding

10). The VE testified at the administrative hearing regarding this issue. Id. Based upon this

testimony, the ALJ determined Plaintiff retained the capacity to perform the requirements of

representative occupations such document preparer with 14,425 such jobs in the national economy.

Id. Because Plaintiff retained the capacity to perform this other work, the ALJ determined Plaintiff

had not been under a disability, as defined by the Act, from her alleged onset date of April 20, 2013

through the date of her decision or through November 17, 2015. (Tr. 27, Finding 11).

Plaintiff sought review with the Appeals Council. (Tr. 6). On October 6, 2016, the Appeals

Council denied her request for review. (Tr. 1-4). On November 8, 2016, Plaintiff filed her

Complaint in this action. ECF No. 1. Both Parties have filed appeal briefs and have consented to

the jurisdiction of this Court. ECF Nos. 4, 10-11. This case is now ready for decision.

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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)

(2010); 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).

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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).

3. Discussion:

In her appeal brief, Plaintiff alleges the ALJ’s disability determination is not supported by

substantial evidence in the record. ECF No. 10 at 1-6. Specifically, Plaintiff argues the following:

(A) the ALJ improperly found her “mini stroke, possible MS, and white matter findings and the

effects that the same have on her memory, concentration, persistence and pace, being non-severe”;

(B) the ALJ erred in her RFC determination; and (C) the ALJ erred in assessing her subjective

complaints. Id. The Court will address each of these arguments.

A. Severe Impairments

Plaintiff claims the ALJ erred in finding her “mini stroke, possible MS, and white matter

findings” were non-severe impairments. ECF No. 10 at 2. In her appeal brief, Plaintiff does not

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provide any argument or evidentiary support for this claim. Id. Instead, Plaintiff supplies the bare

claim that these impairments should have been found to be severe. Id.

A claimant suffers from a severe impairment if that impairment is more than slight and if that

impairment affects the claimant’s ability to do his or her basic work activities. See Householder v.

Bowen, 861 F.2d 191, 192 n.1 (8th Cir. 1988). The Supreme Court has also held that a claimant does

not suffer from a severe impairment where the claimant only suffers from “slight abnormalities that

do not significantly limit any ‘basic work activity.’” See Bowen v. Yuckert, 482 U.S. 137, 155 (1987)

(O’Connor, S., concurring) (emphasis added); see also Brown v. Bowen, 827 F.2d 311, 311-12 (8th

Cir. 1987) (adopting Justice O’Connor’s language from Bowen v. Yuckert). See also Kirby v. Astrue,

500 F.3d 705, 707-09 (8th Cir. 2007).

In these case, Plaintiff has offered no demonstration that her impairments are any more than

“slight abnormalities” that do not significantly limit basic work activity. Thus, the Court finds no

basis for reversal on this issue.

B. RFC Determination

Plaintiff claims the ALJ erred in assessing her RFC. ECF No. 10 at 2-5. Specifically,

Plaintiff claims the ALJ erred in assessing her RFC by discounting the findings of Dr. Walz and Mr.

Derusse. Id.

As an initial matter, and upon a review of the transcript in this matter, Dr. Walz completed

a mental diagnostic evaluation on February 18, 2015 as a part of a one-time consultative evaluation.

(Tr. 405-409). Because Dr. Walz was merely a consulting physician, the ALJ was under no

obligation to adopt her findings. See, e.g., Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998)

(recognizing the limited weight that may be attributed to a consulting physician). Furthermore, upon

review of her actual report, Dr. Walz’s findings do not even compel a finding of disability. (Tr. 405-

409).

Indeed, although Dr. Walz reported Plaintiff “seemed a little sedated,” Plaintiff

herself attributed that sedation to a medication she was taking, Decadron. (Tr. 405). Dr. Walz made

no findings regarding this issue. Plaintiff also argues in her appeal brief that the ALJ should have

sent her “for further testing to confirm whether or not the Decadron was actually the cause of the

impairments, or whether it was simply Plaintiff’s physical or mental conditions causing the issues.”

ECF No. 10 at 4. The ALJ, however, was certainly under no obligation to further investigate

whether Decadron caused her sedation when Plaintiff affirmatively stated it did indeed cause her

sedation.1

Plaintiff also complains about the ALJ’s consideration of Mr. Derusse’s findings. ECF No.

10 at 4. Upon review of this report, Mr. Derusse is licensed master social worker, not a medical

doctor. (Tr. 536-537). Thus, he is not an “acceptable medical source” entitled to deference. See,

e.g., 20 C.F.R. § 404.1502(a) (2017). Furthermore, his opinions are no more than two pages in a

check-list form, and he offers no substantive findings to support his conclusions. Thus, the Court

cannot find the ALJ erred in choosing not to adopt these findings.

C. Subjective Complaints

Plaintiff argues the ALJ erred “by failing to conduct a proper, exclusive, credibility analysis

as required by SSR 96-97p and Polaski v. Heckler, 739F 2d 1320 (8th Cir. 1984).” ECF No. 10 at

5-6. Despite this claim, the ALJ provided several valid reasons for discounting her subjective

1 Apparently, Plaintiff stopped taking this medication before the hearing in this matter. (Tr. 72).

It is unclear how her discontinued use of this medication has any bearing on Dr. Walz’s findings since

she was taking it when she was examined by Dr. Walz. Thus, the Court need not consider this issue.

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complaints, including the fact Plaintiff had only received conservative care and was able to perform

a number of daily activities, including dropping her kids off at school, taking care of four dogs, and

doing a wide variety of household chores. (Tr. 15-25). Because these are “good reasons” for

discounting Plaintiff’s subjective complaints, the Court finds no basis for reversal on this issue. See

Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2004) (recognizing the court should “defer to the

ALJ’s determinations regarding the credibility of testimony, so long as they are supported by good

reasons and 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 14th day of December 2017.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE

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