Cooper v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on December 14, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
KIMBERLY J. COOPER
Civil No. 2:12-cv-02002
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Kimberly J. Cooper (“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 application
for a period of disability and Disability Insurance Benefits (“DIB”) under Title II 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.
Plaintiff protectively filed her DIB application on December 7, 2009. (Tr. 8, 124-125).
Plaintiff alleges being disabled due to the following:
HIV positive, Knee, Pain, Depression Claimant is HIV positive. Claimant has had
multiple knee surgeries. Claimant has pain all the time. Claimant suffers from
depression. Hiv positive knees pain depression
(Tr. 153). Plaintiff claims her impairments cause her the following limitations: “Claimant can’t be
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.”
on her feet for long periods of time because of the knee pain. Claimant is HIV positive Claimant’s
depression keeps her from being around the public.” Id. Plaintiff alleges an onset date of April 1,
2008. (Tr. 8). This application was denied initially and again upon reconsideration. (Tr. 48-49).
Thereafter, Plaintiff requested an administrative hearing on her application, and this hearing
request was granted. (Tr. 56-57, 67-72). Plaintiff’s administrative hearing was held on November
30, 2010 in Fort Smith, Arkansas. (Tr. 25-47). Plaintiff was present and was represented by Fred
Caddell. Id. Only Plaintiff testified at the administrative hearing in this matter. Id.
On January 18, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 8-16). In this decision, the ALJ determined Plaintiff last met the insured status
requirements of the Act on June 30, 2008. (Tr. 10, Finding 1). The ALJ determined Plaintiff had
not engaged in Substantial Gainful Activity (“SGA”) during the period from her alleged onset date
of April 1, 2008 through her date last insured of June 30, 2008. (Tr. 10, Finding 2). The ALJ
determined Plaintiff had the following severe impairments: Human Immunodeficiency Virus
(“HIV”) infection, residuals of a fractured tibia or knee, and anemia. (Tr. 10-11, Finding 3). The
ALJ 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. 11,
The ALJ determined Plaintiff was twenty-four (24) years old on her date last insured. (Tr.
15, Finding 7). Such an individual is defined as a “younger person” under 20 C.F.R. § 404.1563(c)
(2008) (DIB). Id. The ALJ also determined Plaintiff had at least a high school education and was
able to communicate in English. (Tr. 15, Finding 8).
In this decision, the ALJ evaluated Plaintiff’s subjective complaint and determined her RFC.
(Tr. 11-15, 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
the RFC to perform the following:
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant has the residual functional capacity to perform the
full range of sedentary work as defined in 20 CFR 404.1567(a). Specifically, the
claimant can lift 10 pounds occasionally and 5 pounds frequently; sit for 6 hours in
an 8-hour workday; and stand/walk for up to 2 hours in an 8-hour workday. The
claimant has no postural, manipulative, visual, communicative, or environmental
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff had no PRW.
(Tr. 15, Finding 6). The ALJ also evaluated whether there was other work existing in significant
numbers in the national economy Plaintiff could perform. (Tr. 15-16, Finding 10). The ALJ relied
upon the Medical-Vocational Guidelines (“Grids”) to make this determination. Id. Specifically,
based upon Section 204.00 of the Grids, the ALJ determined Plaintiff could perform other work and
was not under a disability as defined by the Act at any time from April 1, 2008 (Plaintiff’s alleged
onset date) through June 30, 2008 (Plaintiff’s date last insured). (Tr. 16, Finding 11).
Thereafter, on January 27, 2011, Plaintiff requested the Appeals Council’s review of the
ALJ’s unfavorable decision. (Tr. 20-22). On December 7, 2011, the Appeals Council declined to
review this unfavorable decision. (Tr. 1-3). On January 5, 2012, Plaintiff filed the present appeal.
ECF No. 1. The Parties consented to the jurisdiction of this Court on January 13, 2012. ECF No.
5. Both Parties have filed appeal briefs. ECF Nos. 11-12. This case is now ready for decision.
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).
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).
In her appeal, Plaintiff raises the following arguments for reversal: (A) the ALJ erred in
assessing her RFC; (B) the ALJ erred in assessing her credibility; (C) the ALJ erred by failing to
fully and fairly develop the record; and (D) the ALJ erred in finding her depression was non-severe.
ECF No. 11 at 1-19. In response, Defendant argues that substantial evidence supports the ALJ’s
RFC determination, the ALJ properly assessed Plaintiff’s credibility, the ALJ satisfied his duty to
fully and fairly develop the record, and the ALJ correctly determined Plaintiff’s depression was nonsevere. ECF No. 12. The Court will address each of the arguments Plaintiff has raised.
Plaintiff argues the ALJ improperly evaluated her RFC by failing to properly consider the
opinions of her treating physician, Dr. Hazel K. Liverett, M.D. at UAMS. ECF No. 11 at 10-11.
Specifically, Plaintiff claims the ALJ ignored Dr. Liverett’s diagnosis of “chronic diarrhea” that
would impact her in her ability to work. Id. Plaintiff also claims the ALJ did not properly consider
her severe depression and the impact it has on her ability to work. Id. In response, Defendant argues
the ALJ’s RFC determination is supported by substantial evidence in the record, and the ALJ
correctly analyzed Dr. Liverett’s opinions regarding her diarrhea and correctly evaluated Plaintiff’s
alleged limitations due to depression. ECF No. 12 at 4-7.
Upon review, the Court finds the ALJ properly considered Plaintiff’s diarrhea and depression
when assessing her RFC. First, Plaintiff is correct that in an HIV-AIDS Questionnaire, Dr. Liverett
opined she suffered from “chronic diarrhea with two or more loose stools daily lasting for 1 month
or longer.” (Tr. 483). However, Dr. Liverett also stated in this report that Plaintiff’s diarrhea did
not last for more than one month and was not “resistant to treatment” and did not require
“intravenous hydration, intravenous alimentation, or tube feeding.” Id. Further, while Plaintiff
claimed at the administrative hearing in this matter that she suffered from diarrhea seven to eight
times per day (Tr. 40), in medical records dated just two weeks before this hearing, Plaintiff only
complained of “almost daily” diarrhea and not constant diarrhea. (Tr. 498). Thus, the medical
evidence of record does not support any additional limitations resulting from Plaintiff’s diarrhea, and
substantial evidence supports the ALJ’s RFC finding in this regard.
Second, Plaintiff alleges that the ALJ’s RFC determination does not consider her alleged
depression. ECF No. 11 at 11. In support of her allegation, Plaintiff merely relies on her testimony
as evidence of depression. Id. There is no medical evidence reflecting any professional mental
health treatment or a diagnosis of depression. (Tr. 197-729). Furthermore, the ALJ considered that
on August 3, 2010, Plaintiff specifically denied having any depression during an appointment with
Dr. Liverett. (Tr. 575). See Harvey v. Barnhart, 368 F.3d 1013, 1015 (8th Cir. 2004) (recognizing
Plaintiff’s medical records contained no objective basis for finding the claimant had memory
problems). Thus, the lack of objective medical evidence to support Plaintiff’s subjective complaints
supports the ALJ’s finding that Plaintiff’s depression was not a medically determinable impairment.
Indeed, there is no evidence to substantiate Plaintiff’s claim that her alleged depression would effect
her ability to function. As such, the Court finds the ALJ did not err in finding Plaintiff’s RFC was
not limited due to her depression.
Plaintiff claims the ALJ erred in evaluating the credibility of her subjective complaints. ECF
No. 11 at 11-14. 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 that the Plaintiff’s subjective complaints are
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.
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 ALJ performed a proper Polaski analysis. Notably, the ALJ
summarized Plaintiff’s subjective complaints and Plaintiff’s medical records. (Tr. 12-14). Then,
the ALJ noted several inconsistencies between Plaintiff’s medical records and her subjective
complaints: (1) Plaintiff testified at the hearing that she had seven to eight episodes of diarrhea daily
but only reported “almost daily” diarrhea during her doctor’s visit; (2) Plaintiff testified she weighed
only 172 pounds at the administrative hearing, but her treatment notes reflected she weighed 2023
pounds two weeks prior to the hearing; (3) Plaintiff testified she had a pre-pregnancy weight of 240
pounds, but her treatment notes reflect a pre-pregnancy weight of 189 pounds; (4) Plaintiff testified
she does not do any household chores because she is afraid to spread the virus, but in her function
report, she reported she cooks, cleans, and takes care of her brother’s children, including bathing and
It appears Plaintiff claimed she was a lower weight than she actually was to support her claim that she was
“wasting away” due to HIV. (Tr. 25-47).
feeding them daily; and (5) Plaintiff indicated at the hearing that her children are in the custody of
her parents because her sickness, but the record demonstrates they are in her parents’ custody
because she was incarcerated in 2005. The Court finds these are sufficient reasons for finding
Plaintiff’s subjective complaints were not credible. See Finch v. Astrue, 547 F.3d 933, 935 (8th Cir.
2008) (holding that “[Q]uestions of credibility are for the [ALJ] in the first instance. If an ALJ
explicitly discredits a claimant’s testimony and gives a good reason for doing so, we will normally
defer to that judgment”) (citation omitted). See also Casey v. Astrue, 503 F.3d 687, 695 (8th Cir.
2007) (noting that a discussion of every Polaski factor need not be included in the ALJ’s opinion).
Plaintiff claims the ALJ did not fully and fairly develop the record as to her depression and
her knee pain. ECF No. 11 at 14-15. In making this argument, Plaintiff merely alleges that the
record is not developed on these issues. Id. Plaintiff does not actually demonstrate she was
prejudiced by the ALJ’s alleged failure to develop the record on these two issues. Indeed, as noted
above, there has been no demonstration Plaintiff has even been diagnosed with depression.
Likewise, there has not been any demonstration that Plaintiff’s knee pain continued beyond 2008
when she underwent surgery. (Tr. 210-223). Accordingly, because Plaintiff has not demonstrated
any further record development on either of these issues would have assisted the ALJ, Plaintiff has
made no showing of prejudice. Thus, no remand to develop the record is required. See Onstad v.
Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993) (holding that “absent unfairness or prejudice, we will
Plaintiff claims the ALJ improperly determined her depression was non-severe. ECF No. 11
at 15-19. To support her claim that she suffers from the severe impairment of depression, Plaintiff
only references her testimony from the administrative hearing. Id. As noted above, however,
Plaintiff has not provided any medical evidence demonstrating she suffers from depression. Indeed,
as noted above, approximately three months before the administrative hearing in this matter, Plaintiff
even reported to her treating physician that she did not suffer from depression. Accordingly, the
Court finds the ALJ did not err by finding this impairment was non-severe.4
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 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
The ALJ found Plaintiff’s depression was non-severe based upon the following finding: “The claimant is
alleging depression. However, the record does not contain any evidence referring to any professional mental health
treatment. In addition, in an office visit note dated August 3, 2010 by Hazel K. Liverett, M.D., the claimant denied
having any depression. On examination, she was oriented to all spheres, affect and mood were appropriate,
interacted normally, and had good eye contact (Exhibit 9F/9I). Moreover, the record does not contain any diagnosis
of depression. Therefore, the undersigned finds the claimant’s alleged depression is not a medically determinable
impairment. Even if the undersigned could base the decision on symptoms and subjective complaints alone, the
depression would be non-severe, as it does not impose more than minimal limitations on her ability to perform basic
work activities.” (Tr. 10-11).
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