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Wyant v. Colvin

United States District Court, W.D. Arkansas, Fort Smith Division

April 1, 2015

CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant.


MARK E. FORD, Magistrate Judge.

Plaintiff, Somer Lashay Wyant, brings this action under 42 U.S.C. §405(g), seeking judicial review of a decision of the Commissioner of Social Security Administration (Commissioner) denying her claim for a period of disability and supplemental security income ("SSI") under Title XVI of the Social Security Act (hereinafter "the Act"), 42 U.S.C. § 1382c(a)(3). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. 42 U.S.C. § 405(g).

I. Procedural Background:

Plaintiff filed her application for SSI on August 29, 2012, alleging an onset of disability on August 1, 2008. (T. 161-166) She alleged disability due to post traumatic stress disorder (PTSD), social anxiety, depression, broken left foot, hematic cysts on kidneys, kidney stones, and chronic obstructive pulmonary disease (COPD). (T. 190) Her application was denied initially and on reconsideration. (T. 69-81, 84-97, 100-103, 107-108) Plaintiff requested an administrative hearing, and the hearing was held on March 14, 2013, before the Hon. Glenn A. Neel, Administrative Law Judge (ALJ). (T. 109-111, 31-63) Plaintiff was present and represented by her attorney, Iva Nell Gibbons. (T. 31, 33)

Plaintiff was 33 years old at the time of the hearing. (T. 35) She did not complete ninth grade, but she obtained a high school education through a GED program. (T. 36) She went to vocational school for surgical technology, but she did not finish the program. (T. 36) She has worked a variety of jobs in the past 15 years, including, work as a "hanger" for Tyson Foods, in a shoe factory, as a CNA in a nursing home, at convenience stores, as a customer service representative, and as a waitress and cook. (T. 37-43) Her work activity, however, never rose to the level of substantial gainful activity, so she was considered not to have any past relevant work ("PRW"). (T. 24) Plaintiff stopped working on May 15, 2012. (T. 190)

In a Decision issued on June 11, 2013, the ALJ found that Plaintiff has not engaged in substantial gainful activity since August 29, 2012, the date of her application for SSI, and that although Plaintiff has the following severe impairments, degenerative joint disease of the left subtalar joint (status - post ankle fracture), history of probable lumbar compression fracture, history of chronic kidney stones, history of chronic obstructive pulmonary disease (COPD), major depressive disorder, generalized anxiety disorder, and post-traumatic stress disorder (PTSD), 20 C.F.R. § 416.920(c), Plaintiff does not have an impairment or combination of impairments that meets or medically equals any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.920(d), 416.925 and 416.926). (T. 19-21) The ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform sedentary work as defined in 20 C.F.R. § 416.967(a), subject to the following limitations: she can only occasionally climb, balance, stoop, kneel, crouch and crawl; she can only occasionally operate foot controls with her left lower extremity; she must avoid concentrated exposure to temperature extremes, humidity, fumes, odors, dust, gasses, poor ventilation, and hazards; and, and she cannot drive as a part of her work. Additionally, she must work in an environment where interpersonal contact is incidental to the work performed and the supervision required is simple, direct, and concrete. Finally, she is limited to work in which the complexity of tasks is learned and performed by rote, with few variables and little use of judgment. (T. 21-24) With the assistance of a vocational expert, Montie U. Lumpkin, the ALJ determined that while Plaintiff had no past relevant work because her prior work activity never rose to the level of substantial gainful activity (T. 24), Plaintiff could perform the requirements of representative sedentary, unskilled assembly type jobs such as Lampshade Assembler (DOT#739.684-094) and Buckler/Lacer (DOT#788.687-022), of which there are 1, 675 jobs in Arkansas and 72, 781 in the national economy, and inspection jobs such as Sorter (DOT#521.687-086) and Type-Copy Examiner (DOT#979.687-026), of which there are 166 jobs in the Arkansas economy and 13, 408 jobs in the national economy. (T. 25, 58-61) The ALJ then concluded that Plaintiff has not been under a disability, as defined in the Social Security Act, since August 29, 2012, the date Plaintiff's application for SSI was filed. (T. 26)

Plaintiff requested review of the ALJ's decision by the Appeals Council (T. 10). The request for review was denied on February 5, 2014, and the ALJ's decision became the Commissioner's final decision for judicial review. (T. 1-3) See 42 U.S.C. § 405(g). Plaintiff filed this action on March 31, 2014. (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 ready for decision. (Doc. 9 and 10)

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 more that a scintilla, but less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). "Our review extends beyond examining the record to find substantial evidence in support of the ALJ's decision; we also consider evidence in the record that fairly detracts from that decision." Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). The ALJ's decision must be affirmed if the record contains substantial evidence to support it. Perales, 402 U.S. at 390; 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).

A claimant for Social Security disability benefits has the burden of proving her disability by establishing a medically determinable physical or mental impairment that has lasted at least one year and that prevents her from engaging in substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); 42 U.S.C. §§ 423(d)(1)(A) and 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) and 1382(3)(c). A claimant must show that her disability, not simply her impairment, has lasted for at least twelve consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).

The Commissioner's regulations require application of 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 or her 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 or her age, education, and experience. 20 C.F.R. §§ 404.1520(a)-(f)(2012). Only if the final stage is reached does the fact finder consider the claimant's age, education, and work experience in light of his or her residual functional capacity. McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520 and 416.920 (2012).

III. Discussion:

The Court must determine whether substantial evidence, taking the record as a whole, supports the Commissioner's decision that Plaintiff was not disabled since the date of her SSI application on August 29, 2012. Plaintiff raises three issues on appeal: (A) that the ALJ failed to properly develop the evidence; (B) that the ALJ failed to consider evidence which fairly detracted from his findings; and, (C) that the ALJ failed to apply proper legal standards regarding assessment of credibility of subjective complaints, weight given to physician's opinions, determination of Plaintiff's RFC, and in application of the burden of proof at step five of the sequential evaluation process. (Doc. 9, pp. 11-19) Each issue is addressed in turn.

A. Failure to Properly Develop the Evidence

Plaintiff argues that the ALJ failed to ask a treating source about limitations or restrictions. (Doc. 9, p. 11-13) She states that her therapists gave GAF scores indicating difficulty functioning in the workplace, that numerous records show recurring kidney problems and complaints of back and foot/ankle pain, and that there is also evidence of fatigue and side effects from medications. She further contends that the ALJ should have obtained RFC's from her treating physicians.

The ALJ has a duty to fully and fairly develop the record. Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995)(ALJ must fully and fairly develop the record so that a just determination of disability may be made). This duty exists "even if... the claimant is represented by counsel." Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.1992), quoting Warner v. Heckler, 722 F.2d 428, 431 (8th Cir.1983). The ALJ, however, is not required to act as Plaintiff's counsel. Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994) (ALJ not required to function as claimant's substitute counsel, but only to develop a "reasonably complete" record); Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995) (reversal due to failure to develop the record is only warranted where such failure is unfair or prejudicial). There is no bright line rule indicating when the Commissioner has or has not adequately developed the record; rather, such an assessment is made on a case-by-case basis. Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994).

The need for medical evidence does not necessarily require the Commissioner to produce additional evidence not already within the record. An ALJ is permitted to issue a decision without obtaining additional medical evidence so long as other evidence in the record provides a sufficient basis for the ALJ's decision. Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001). Providing specific medical evidence to support her disability claim is, of course, the Plaintiff's responsibility, and that burden of proof remains on her at all times to prove up her disability and present the strongest case possible. Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991); 20 C.F.R. §§ 404.1512(a) and (c), 416.912(a) and (c).

Considering the record as a whole in the present case, the ALJ was not required to further develop the record because it was already "reasonably complete, " and it contained sufficient evidence ...

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