United States District Court, W.D. Arkansas, Fort Smith Division
HONORABLE ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE.
David Dreams, 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) 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.
filed his current applications for DIB and SSI on April 3,
2013, alleging an inability to work since December 14, 2011,
to Type 2 diabetes, high blood pressure, depression,
arthritis, vision problems, and fatigue. (Tr. 260-272, 305,
312). An administrative hearing was held on April 15, 2014,
at which Plaintiff appeared with counsel and testified. (Tr.
written decision dated August 15, 2014, the ALJ found that
during the relevant time period, Plaintiff had an impairment
or combination of impairments that were severe -
hypertension, non-insulin dependent diabetes mellitus,
osteoarthritis, and major depression. (Tr. 21). 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. 22). The ALJ found Plaintiff retained
the residual functional capacity (RFC) to perform light work
as defined in 20 C.F.R. §404.1567(b) and 416.967(b),
except he is limited to work consisting of simple tasks with
simple instructions. (Tr. 23). With the help of the
vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would not be able to perform
his past relevant work, but there were other jobs Plaintiff
would be able to perform, such as blending tank tender,
inspector/checker, and warehouse checker. (Tr. 30).
then requested a review of the hearing decision by the
Appeals Council, which considered additional evidence and
denied that request on December 3, 2014. (Tr. 1-6).
Subsequently, Plaintiff filed this action. (Doc. 1). This
case is before the undersigned pursuant to the consent of the
parties. (Doc. 6). Both parties have filed appeal briefs, and
the case is now ready for decision. (Docs. 11, 12).
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.
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).
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).
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). A Plaintiff must show that his
disability, not simply his impairment, has lasted for at
least twelve consecutive months.
Commissioner’s regulations require her to apply a
five-step sequential evaluation process to each claim for
disability benefits: (1) whether the claimant had engaged in
substantial gainful activity since filing his claim; (2)
whether the claimant had a severe physical and/or mental
impairment or combination of impairments; (3) whether the
impairment(s) met or equaled an impairment in the listings;
(4) whether the impairment(s) prevented the claimant from
doing past relevant work; and (5) whether the claimant was
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 RFC.
See McCoy v. Schneider, 683 F.2d 1138, 1141-42
(8th Cir. 1982); 20 C.F.R. §§ 404.1520;
argues that the ALJ erred in his RFC assessment because: the
ALJ’s mental RFC assessment is not supported by
substantial evidence in light of new medical evidence
properly submitted after the hearing; because the ALJ erred
in failing to consider Plaintiff’s need for the use of
a cane; and because the ALJ erred in finding Plaintiff could
perform a full range of light work. (Doc. 11).
decision, the ALJ found that Plaintiff’s medically
determinable impairments could reasonably be expected to
cause the alleged symptoms, but that Plaintiff’s
statements concerning the intensity, persistence and limiting
effects of the symptoms were not entirely credible. (Tr. 25).
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)
and aggravating factors; (4) dosage, effectiveness, and side
effects of his medication; and (5) functional restrictions.
See id. 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 Eighth Circuit has 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).
decision, the ALJ noted that Plaintiff was able to take care
of all activities of daily living, except as limited by pain,
he was able to drive, take care of his personal needs, shop
for groceries, cook, wash his clothes, and attend church.
(Tr. 22). The Court also notes that during the relevant time
period, on April 2, 2014, Plaintiff advised Clark Williams,
PHD, LPC, of Western Arkansas Counseling and Guidance Center
(WACGC), that he had been out of town taking care of his
mother after her surgery. (Tr. 800). On June 5, 2014,
Plaintiff advised Mr. Williams that he wanted to go to visit
his mother again for a couple of weeks, because she was
helping take care of her grandchildren and he wanted to go
help her out for a while. (Tr. 803). This type of activity is
inconsistent with allegations of disabling impairments. It is
also noteworthy that Plaintiff continued to smoke cigarettes
and marijuana during the relevant time period. (Tr. 107, 692,
767, 841, 845). It was reported on August 19, 2014, that the
last time Plaintiff used marijuana was July 4. In a report
dated August 22, 2014, from Valley Behavioral Health System,
it was reported that Plaintiff’s urine drug screen was
positive for THC. (Tr. 841). The Court also notes that on
September 17, 2013, James Gattis, APN, of ...