Barker v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 21, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

DAROLD BARKER
vs.

PLAINTIFF
Civil No. 2:11-cv-02009

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Darold Barker (“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 his application for
Supplemental Security Income (“SSI”) and a period of disability under Title 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. 8.1 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 an application for SSI on August 7, 2008. (Tr. 10, 103-105).
Plaintiff alleged he was disabled due to hypertension, seizures, kidney failure and back pain. (Tr.
121). Plaintiff alleged an onset date of March 10, 2008. (Tr. 121). This application was denied
initially and again upon reconsideration. (Tr. 55-57, 60-61). Thereafter, Plaintiff requested an

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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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administrative hearing on his application, and this hearing request was granted. (Tr. 64-66).
Plaintiff’s administrative hearing was held on November 16, 2009, in Fort Smith, Arkansas.
(Tr. 21-46). Plaintiff was present and was represented by counsel, Matthew Ketcham, at this
hearing. Id. Plaintiff and Vocational Expert (“VE”) John Massey, testified at this hearing. Id. At
the time of this hearing, Plaintiff was forty-six (46) years old, which is defined as a “younger person”
under 20 C.F.R. § 404.1563(c), and had a high school education. (Tr. 27).
On February 22, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s
application for SSI. (Tr. 10-17). In this decision, the ALJ determined Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since April 7, 2008. (Tr. 12, Finding 1). The ALJ determined
Plaintiff had the severe impairment of acute renal failure, resolved, hypertension, and diabetes
mellitus. (Tr. 12, Finding 2). The ALJ also determined Plaintiff’s impairments did not meet or
medically equal the requirements of any of the Listing of Impairments in Appendix 1 to Subpart P
of Regulations No. 4 (“Listings”). (Tr. 13, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 13-16, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to perform light work. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr.16, Finding 5). The ALJ
determined Plaintiff was unable to perform his PRW. Id. The ALJ did, however, find Plaintiff
retained the ability to perform other work existing in significant numbers in the national economy.
(Tr. 16-17, Finding 9). The ALJ based this finding upon the testimony of the VE. Id. Specifically,
the VE testified in response to interrogatories from the ALJ that a hypothetical individual with

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Plaintiff’s limitations retained the ability to perform work as a fast food worker with 2,700 such jobs
in Arkansas and 1,944,000 in the national economy, a cashier with 17,000 such jobs in Arkansas and
1,797,000 in the national economy, and assembler with 1,500 such jobs in Arkansas and 85,400 in
the national economy. Id. The ALJ then determined Plaintiff had not been under a disability, as
defined by the Act, from April 7, 2008 through the date of his decision. (Tr. 17, Finding 10).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 4). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On January 13, 2011, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on February 7, 2011. ECF No. 8. Both Parties have filed appeal
briefs. ECF Nos. 12, 13. 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,

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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).
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 his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 12 at 9-14. Specifically, Plaintiff claims the ALJ erred
(1) in his findings of severe impairments, (2) in failing to develop the record as to his RFC and, (3)
in evaluating his subjective complaints. In response, the Defendant argues the ALJ did not err in any
of his findings. ECF No. 13.
A. Finding of Severe Impairments
Plaintiff argues the ALJ erred as it relates to his findings of severe impairments. ECF 12,
Pgs. 9-10. The ALJ determined Plaintiff had the severe impairment of acute renal failure, resolved,
hypertension, and diabetes mellitus. (Tr. 12, Finding 2). The Plaintiff argues the ALJ erred by
finding his chronic law back pain was non-severe when the medical records showed complaints and
treatment for low back pain. (Tr. 39, 380-381).
In determining whether a claimant’s impairment or impairments are of such severity that such
impairment or impairments could be the basis of eligibility for benefits, the Commissioner will
consider the combined effect of all the claimant’s impairments without regard to whether any such
impairment, if considered separately, would be of such sufficient severity. See 20 C.F.R. § 416.923.
If a medically severe combination of impairments is found, the combined impact of the impairments
will be considered throughout the disability determination process. Id. Furthermore, in assessing
RFC, the Commissioner will consider all of a claimant’s impairments, including the claimant’s
non-severe impairments. See 20 C.F.R. § 416.945(a)(2).
In this matter, The ALJ found Plaintiff’s back problems and seizures were non-severe
impairments. (Tr. 12-13). In making this finding, the ALJ noted that Plaintiff’s medical records
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from the Good Samaritan Clinic showed Plaintiff’s low-back pain was treated conservatively with
only over-the-counter Tylenol. (Tr. 13, 161). The ALJ also noted medical records showed Plaintiff
had only mild degenerative changes without compression fractures, and had normal strength in all
extremities, except his left arm. (Tr. 13-14, 136, 202, 238, 341, 384). As a result, the ALJ found
the medical evidence did not support Plaintiff’s alleged limitations due to low-back pain.
Plaintiff alleges records from Good Samaritan Clinic show Plaintiff had a severe impairment
due to low back pain. ECF 12, Pg. 9. The records, dated May 27, 2008 and July 6, 2008, show
Plaintiff was treated on follow-up regarding kidney problems and diabetes mellitus, at which time
he also complained of back pain. (Tr. 380-381). The physician conducted a physical examination
and noted Plaintiff’s musculoskeletal examination was normal, and assessed Plaintiff with diabetes
mellitus, stable hypertension, and alcohol and cocaine abuse. (Tr. 380-381). Also, according to
Plaintiff, he has only taken over-the-counter Tylenol for his back pain. (Tr. 39).
The medical record does not show that Plaintiff’s physicians prescribed any pain medication
or recommended any treatment for Plaintiff’s low-back pain. It appears Plaintiff’s low-back pain
was effectively controlled with conservative treatment with the use of over-the-counter Tylenol. See
Wilson v. Chater, 76 F.3d 238, 241 (8th Cir. 1996) (conditions controlled with medications are not
medically severe). As a result, substantial evidence supports the ALJ’s finding that Plaintiff’s low
back pain was a non-severe impairment.
B. Development of the Record
The ALJ has the duty to fully and fairly develop the record, even where the Plaintiff is
represented by counsel. If a physician’s report of a claimant’s limitations are stated only generally,
the ALJ should ask the physician to clarify and explain the stated limitations. See Vaughn v.
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Heckler, 741 F. 2d 177,179 (8th Cir. 1984). Furthermore, the ALJ is required to order medical
examinations and tests if the medical records presented do not provide sufficient medical evidence
to determine the nature and extent of a claimant’s limitations and impairments. See Barrett v.
Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994). The ALJ must develop the record until the evidence
is sufficiently clear to make a fair determination as to whether the claimant is disabled. See Landess
v. Weinberger, 490 F. 2d 1187, 1189 (8th Cir. 1974). In addition, a claimant must show not only that
the ALJ failed to fully and fairly develop the record, but he must also show that he was prejudiced
or treated unfairly by the ALJ's failure. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993).
Initially the Court notes Plaintiff has failed to establish that the medical records presented
did not provide sufficient medical evidence to determine the nature and extent of his limitations and
impairments. See Barrett v. Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994). An ALJ is not required
to order a consultative evaluation of every alleged impairment; he simply has the authority to do so
if the existing medical sources do not contain sufficient evidence to make an informed decision. See
Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989).
Plaintiff also alleges that the ALJ committed error because he did not discuss all his alleged
limitations. ECF No. 12, Pg. 12. However, as is discussed below, the ALJ discounted Plaintiff’s
credibility, which included discounting Plaintiff’s subjective walking limitations and alleged need
for unscheduled breaks due to frequent urination. (Tr. 15). The ALJ also found Plaintiff never
complained to his physicians that he had a frequent urination problem, and his physicians never
addressed any problems regarding Plaintiff’s alleged frequent urination. Id. The record as a whole
does not support Plaintiff’s alleged walking limitations and need for unscheduled breaks due to
frequent urination.
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Under the facts in the present case, this Court also finds the ALJ properly considered
Plaintiff’s impairments in combination. See Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir.
1992). The Act requires the ALJ to consider the combined effect of all of the claimant’s
impairments without regard to whether any such impairment, if considered separately, would be of
sufficient severity. See 20 C.F.R. § 404.1523. In the present action, in reviewing Plaintiff’s claimed
impairments, the ALJ found 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.13, Finding 3).
The ALJ also found, “after consideration of the entire record,” the Plaintiff had the RFC to
perform light work. (Tr. 13, Finding 4). The ALJ went on to state Plaintiff’s RFC would not
preclude him from performing other work that exists in significant numbers in the national economy.
(Tr. 16, Finding 9). These statements are sufficient in the Eighth Circuit to establish that the ALJ
properly considered the combined effect of a plaintiff’s impairments. See Hajek v. Shalala, 30 F.3d
89, 92 (8th Cir. 1994) (holding that statements such as “the evidence as a whole does not show that
the claimant’s symptoms . . . preclude his past work as a janitor” and “[t]he claimant’s impairments
do not prevent him from performing janitorial work . . .” sufficiently establish that the ALJ properly
considered the combined effects of the plaintiff’s impairments). Thus, pursuant to the Eighth
Circuit’s holding in Hajek, this Court finds the ALJ properly considered Plaintiff’s impairments in
combination.
I find the ALJ satisfied his duty to fully and fairly develop the record in this matter and
properly considered Plaintiff’s impairments in combination. Further, Plaintiff has the burden of
establishing his claimed RFC. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)). Because Plaintiff has not met his
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burden in this case and because the ALJ’s RFC determination is supported by sufficient medical
evidence, this Court finds the ALJ’s RFC determination should be affirmed.
C. Credibility Determination
Plaintiff claims the ALJ erred in evaluating his subjective complaints. 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. § 416.929.2
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
five factors and gives several valid reasons for finding 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.

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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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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).
Plaintiff argues the ALJ erred in assessing his credibility as it related to the limiting effects
of his impairments and did not fully consider his subjective complaints as required by Polaski. The
Defendant argues the ALJ properly evaluated Plaintiff’s subjective complaints of pain in compliance
with Polaski.
In the present action, this Court finds the ALJ properly addressed and discounted Plaintiff’s
subjective complaints. In his opinion, the ALJ addressed the factors from 20 C.F.R. § 416.929 and
stated inconsistencies between Plaintiff’s testimony and the record. (Tr. 13-16). Specifically, the
ALJ noted the following: (1) Absence of objective medical findings to support Plaintiff’s alleged
disabling pain, (2) Plaintiff’s described activities of daily living are not that limited, (3) No physician
has placed a level of limitation as described by Plaintiff, (4) Plaintiff’s over-the-counter medication
has been effective in controlling his symptoms with no side effects, and (5) Evidence shows Plaintiff
stopped working even before his alleged onset date. (Tr. 13-16).
These findings are valid reasons supporting the ALJ’s credibility determination, and this
Court finds the ALJ’s credibility determination is supported by substantial evidence and should be
affirmed. See Lowe, 226 F.3d at 971-72. Accordingly, the ALJ did not err in discounting Plaintiff’s
subjective complaints of pain.
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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 21st day of February, 2012.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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