Benson v. Social Security Administration Commissioner
Filing
17
JUDGMENT/ORDER AFFIRMING THE DECISION OF THE COMMISSIONER and Plaintiffs case is dismissed with prejudice as set forth in the 16 Memorandum Opinion. Signed by Honorable Barry A. Bryant on November 8, 2018. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
KIMBERLY A. BENSON
vs.
PLAINTIFF
Civil No. 1:17-cv-01058
NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Kimberly A. Benson (“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 a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income
(“SSI”) 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. 5.1 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 October 6, 2010. (Tr. 15). In these
applications, Plaintiff alleges she was disabled due to bipolar disorder with psychosis and asthma.
(Tr. 162). Plaintiff alleges an onset date of April 1, 2010. (Tr. 15). These applications were denied
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The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript pages
for this case are referenced by the designation “Tr.”
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initially and again on reconsideration. (Tr. 84-87).
Thereafter, Plaintiff requested an administrative hearing on her applications, and this hearing
request was granted. (Tr. 33-83). An administrative haring was held on February 7, 2012 in El
Dorado, Arkansas. Id. At this administrative hearing, Plaintiff was present and was represented by
Denver Thornton. Id. Plaintiff, Vocational Expert (“VE”) Mr. Wallace2, and a witness for Plaintiff
testified at this hearing. Id. On the date of this hearing, Plaintiff testified she was forty-five (45)
years old, which is defined as a “younger person” under 20 C.F.R. § 416.963(c) (SSI) and 20 C.F.R.
§ 404.1563(c) (DIB). (Tr. 38). Plaintiff also testified she had completed the twelfth grade in school
but had gone no further. (Tr. 40).
On April 4, 2012, the ALJ entered an unfavorable decision on Plaintiff’s disability
applications. (Tr. 12-27). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2015. (Tr. 17, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 1, 2010, her alleged
onset date. (Tr. 17, Finding 2). The ALJ determined Plaintiff had the following severe impairments:
mood disorder NOS, personality disorder NOS, substance addiction disorder, obesity, asthma, and
chronic obstructive pulmonary disease (COPD). (Tr. 17-19, Finding 3). The ALJ, however, also
determined Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 19-21,
Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 21-26, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and determined they
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The first name for “Mr. Wallace” was not included in the transcript.
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were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC for the
following:
After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to perform the full range of light work. Additional
limitations include: only occasional and no frequent crouching, kneeling, crawling,
and stooping. The claimant would be limited to unskilled or the low end of semiskilled work. She can understand, remember, and follow concrete instructions; and
with her medication and without illicit drug use, she can handle superficial contact
such as meet, greet, make change, and give simple instructions and directions.
The law requires that a claimant under age 50 be considered for sedentary work.
Therefore, in the alternative, the claimant has the residual functional capacity to
perform the full range of sedentary work. She can perform a job while sitting or with
a sit/stand option. Additional limitations include: only occasional and no frequent
crouching, kneeling, crawling, and stooping. The claimant would be limited to
unskilled or the low end of semi-skilled work. She can understand, remember, and
follow concrete instructions; and with her medication and without illicit drug use, she
can handle superficial contact such as meet, greet, make change, and give simple
instructions and directions.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined she did not retain
the capacity to perform any of her PRW. (Tr. 25-26, Finding 6). The ALJ did, however, determine
Plaintiff retained the capacity to perform other work existing in significant numbers in the national
economy. (Tr. 26-27, Finding 10). The ALJ applied the Medical-Vocational Guidelines or “Grids”
in making this determination. Id. Specifically, the ALJ determined Plaintiff was “not disabled” under
Rule 202.21 (full range of light work) and Rule 201.28 (full range of sedentary work) of the Grids.
Id. Based upon the Grids, the ALJ determined Plaintiff had not been under a disability, as defined
by the Act, from April 1, 2010 through the date of her decision or through April 4, 2012. (Tr. 27,
Finding 11).
Thereafter, Plaintiff’s case was reversed and remanded by this Court. See Benson v. SSA,
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1:13-cv-01064 (ECF No. 14).
This remand was entered at the SSA’s request for further
administrative development. Id. The ALJ held a second administrative hearing (Tr. 470-505) and
entered a second fully unfavorable decision. (Tr. 446-462). In this decision, the ALJ again found
Plaintiff was not disabled. (Tr. 446-462).
Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable disability
determination. (Tr. 427). On March 24, 2017, the Appeals Council declined to assume jurisdiction
of this case. (Tr. 433-436). On September 29, 2017, Plaintiff filed the present appeal. ECF No. 1.
The Parties consented to the jurisdiction of this Court on September 29, 2017. ECF No. 5. Both
Parties have filed appeal briefs. ECF Nos. 14-15. This case is now ready for decision.
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)
(2006); 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).
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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).
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).
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3.
Discussion:
In her appeal brief, Plaintiff alleges the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 14 at 1-21. Specifically, Plaintiff claims the following:
(A) the ALJ erred in her credibility assessment; (B) the ALJ erred in properly assessing her
impairments under the Listings; (C) the ALJ erred in assessing the opinions of her treating
psychiatrist; and (D) the ALJ erred in assessing her RFC. Id. The Court will address each of these
arguments.
A.
Credibility Assessment
Plaintiff claims the ALJ erred in assessing her credibility. ECF No. 14 at 3-10. In assessing
the credibility of a claimant, the ALJ is required to examine and to apply the five factors from Polaski
v. Heckler, 739 F.2d 1320 (8th Cir. 1984) or from 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929.3
See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to consider are as follows: (1) the
claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3) the precipitating
and aggravating factors; (4) the dosage, effectiveness, and side effects of medication; and (5) the
functional restrictions. See Polaski, 739 at 1322.
The factors must be analyzed and considered in light of the claimant’s subjective complaints
of pain. See id. The ALJ is not required to methodically discuss each factor as long as the ALJ
acknowledges and examines these factors prior to discounting the claimant’s subjective complaints.
See Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). As long as the ALJ properly applies these
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Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 require the analysis of two
additional factors: (1) “treatment, other than medication, you receive or have received for relief of your pain or other
symptoms” and (2) “any measures you use or have used to relieve your pain or symptoms (e.g., lying flat on your
back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.).” However, under Polaski and its progeny,
the Eighth Circuit has not yet required the analysis of these additional factors. See Shultz v. Astrue, 479 F.3d 979,
983 (2007). Thus, this Court will not require the analysis of these additional factors in this case.
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five factors and gives several valid reasons for finding that the Plaintiff’s subjective complaints are
not entirely credible, the ALJ’s credibility determination is entitled to deference. See id.; Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). The ALJ, however, cannot discount Plaintiff’s
subjective complaints “solely because the objective medical evidence does not fully support them [the
subjective complaints].” Polaski, 739 F.2d at 1322.
When discounting a claimant’s complaint of pain, the ALJ must make a specific credibility
determination, articulating the reasons for discrediting the testimony, addressing any inconsistencies,
and discussing the Polaski factors. See Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998). The
inability to work without some pain or discomfort is not a sufficient reason to find a Plaintiff disabled
within the strict definition of the Act. The issue is not the existence of pain, but whether the pain a
Plaintiff experiences precludes the performance of substantial gainful activity. See Thomas v.
Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
In the present action, the Court finds the ALJ properly assessed Plaintiff’s subjective
complaints. Indeed, the ALJ considered the following regarding Plaintiff’s daily activities:
In her Function Report, the claimant reported that she cares for her children and her
mother, prepares meals, cleans house, and does laundry. She is able to care for her
personal hygiene, with no special reminders, and she drives a car and shops for
groceries twice a month. (Exhibit 10E.) The clamant testified at the hearing that she
takes meds three times per day, but she still has problems. Despite her problems, she
testified that she would be able to manage her own finances if she took her
medication.
(Tr. 453) (emphasis added). The ALJ also noted the following regarding Plaintiff’s daily activities:
In determining the degree of limitation caused by the claimant’s respiratory
impairment, the undersigned has considered the claimant’s acknowledged daily
activities. The claimant has smoked a pack of cigarettes per day for many years. In
fact, on August 22, 2014, she reported that she had been smoking since she was
thirteen years old. (Exhibit 35F/8-14.) Further, the claimant testified that she worked
part-time as a self-employed house cleaner from 2010 to 2013. Though she stated she
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was only cleaning her mother’s home, that job would have certainly required exposure
to chemicals, dusts, fumes, and odors. She did not identify these environmental
factors as an issue in her employment. She has continued to help clean her mother’s
home, but she stated that she now spends about eight hours a week, at the most, doing
this. She further testified at the hearing that she sometimes goes on a cleaning frenzy
in her own home. She identified this as a symptoms of her mental impairment, but she
did not state that she had any physical problem that affected her ability to engage in
the cleaning frenzy.
(Tr. 456) (emphasis added). The ALJ also noted Plaintiff “has given inconsistent presentations on
consultative examination, including feigning a panic attack that resolved quickly when it did not get
the examiner’s attention.” (Tr. 460). The ALJ noted Plaintiff “has very clearly stated that her goals
is to be found disabled” and “has engaged in goal-oriented behavior toward this result and made
complaints that are inconsistent with relatively benign mental status examinations and her own ability
to maintain daily activities.” Id.
Upon review, the reasons for discounting Plaintiff’s subjective complaints are sufficient under
Polaski. See Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003) (recognizing “[i]f an ALJ
explicitly discredits the claimant’s testimony and gives good reason for doing so, the court should
normally defer to the ALJ’s credibility determination”). Thus, the Court finds no basis for reversal
on this issue.
B.
Listings 12.03, 12.04, 12.06, and 12.08
Plaintiff claims her impairments meet the requirements of Listings 12.03, 12.04, 12.06, and
12.08. ECF No. 14 at 1-21. Plaintiff has the burden of demonstrating her impairments meet all the
requirements of a given Listing. See Cox, 160 F.3d at 1206. Upon review of Plaintiff’s argument in
this matter, the Court finds Plaintiff has not met her burden of demonstrating her impairments meet
the requirements of any of these Listings.
Indeed, although Plaintiff references Listings 12.03, 12.04, 12.06, and 12.08, Plaintiff does
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not demonstrate how these impairments meet the specific requirements of any of these Listings.
Thus, the Court will not address these listings further. See Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005) (rejecting out of hand conclusory assertion that the ALJ failed to consider whether
claimant met the listings because the claimant provided no analysis of relevant facts or law regarding
the listings).
C.
Treating Psychiatrist
Plaintiff claims the ALJ erred in assessing the findings of her treating psychiatrist, Dr. Merle
Wiseman, M.D. ECF No. 14 at 16-19. Plaintiff claims Dr. Wiseman found she was disabled, and
the ALJ should have adopted those findings. Id. Upon review, it appears the findings from Dr.
Wiseman are included as a part of a nine-page “checklist” form with no evaluation or basis for his
findings. (Tr. 1089-1097).
As such, his opinions are not entitled to controlling weight, even if they are from a treating
source. See Holmstrom v. Massanari, 270 F.3d 715, 720-21 (8th Cir. 2001) (recognizing that such
checklist forms are entitled to limited “evidentiary value”). Thus, based upon the Court finds no basis
for reversal on this issue.
D.
RFC Assessment
Plaintiff claims the ALJ erred in her RFC assessment. ECF No. 14 at 19-21. In making this
argument, Plaintiff again raises the claims that the ALJ erred in evaluating her subjective complaints
and erred in evaluating the findings of her treating psychiatrist. Id. Because the Court has already
addressed these issues, they will not be considered again with this argument.
4.
Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
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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 8th day of November 2018.
Barry A. Bryant
/s/
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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