Jones v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable Barry A. Bryant on November 25, 2013. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
LISA RENEE JONES
Civil No. 2:12-cv-02238
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Lisa Renee Jones (“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 postjudgment proceedings. ECF No. 7.1 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 disability application on September 20, 2010. (Tr. 19, 117-
118). Plaintiff alleges being disabled due to Hepatitis C, pain in her feet, depression, and chronic
bladder infections. (Tr. 165). Plaintiff alleges an onset date of September 1, 2010. (Tr. 19, 117).
This application was denied initially and upon reconsideration. (Tr. 66-67). Thereafter, Plaintiff
requested an administrative hearing on her application, and this hearing request was granted. (Tr.
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.”
This hearing was held on June 28, 2011 in Fort Smith, Arkansas. (Tr. 44-65). Plaintiff was
present at this hearing and was represented by David Harp. Id. Plaintiff and Vocational Expert
(“VE”) Floyd Massey testified at this hearing. Id. During this administrative hearing, Plaintiff
testified she was thirty-three (33) years old. (Tr. 47). Such an individual is defined as a “younger
person” under 20 C.F.R. § 404.1563(c) (2008). Plaintiff also testified she had graduated from high
school. (Tr. 47).
On August 16, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 19-28). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2014. (Tr. 21, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since September 1, 2010, her
alleged onset date. (Tr. 21, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: chronic urinary tract infections, Hepatitis C, and depression. (Tr. 21-22, Finding 3).
The ALJ also determined, however, that 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. 22-23, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 24-27, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaint sand found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the following RFC:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) in that the claimant is able to occasionally lift and carry 20 pounds
and frequently lift and carry 10 pounds. She is able to sit for six hours and stand and
walk for six hours during an eight-hour day. Non-exertionally, claimant is able to
perform work in which interpersonal contact is incidental to work performed;
complexity of tasks is learned and performed by rote with few variables and use of
little judgment; and the supervision required is simple, direct and concrete.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was
unable to perform any of her PRW. (Tr. 27, Finding 6). The ALJ then considered whether Plaintiff
would be able to perform other work existing in significant numbers in the national economy. (Tr.
27-28, Finding 10). The VE testified at the administrative hearing regarding this issue. (Tr. 44-65).
Considering a hypothetical individual with Plaintiff’s RFC, age, work experience, and other
limitations, the VE testified that person could perform the requirements of representative occupations
such as cafeteria attendant with 65,000 such jobs in the nation and 350 such jobs in the state; a motel
or hotel housekeeper with 166,000 such jobs in the nation and 1,700 such jobs in the state; and a
production worker (assembly) with 217,000 such jobs in the nation and 1,700 such jobs in the state.
(Tr. 28). Based upon this testimony, the ALJ determined Plaintiff retained the capacity to perform
other work existing in significant numbers in the national economy, and Plaintiff had not been under
a disability as defined in the Act from September 1, 2010 through the date of his decision or through
August 16, 2011. (Tr. 28, Finding 11).
Thereafter, on August 23, 2011, Plaintiff requested the Appeals Council’s review of the
ALJ’s unfavorable decision. (Tr. 14). The Appeals Council denied this request for review on
September 26, 2012. (Tr. 1-3). On October 12, 2012, Plaintiff filed the present appeal. ECF No.
1. The Parties consented to the jurisdiction of this Court on October 17, 2012. ECF No. 7. Both
Parties have filed appeal briefs. ECF Nos. 12-13. 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 brief, Plaintiff raises the following five arguments for reversal: (A) the ALJ did
not fully and fairly develop the record; (B) the ALJ erred in his Step Two determination; (C) the ALJ
conducted an improper credibility evaluation; (D) the ALJ improperly assessed her RFC; and (E) the
ALJ erred with his Step Five determination. ECF No. 12 at 1-14. In response, Defendant argues the
ALJ properly developed the record in Plaintiff’s case, the ALJ properly evaluated her severe
impairments, the ALJ properly evaluated her credibility, the ALJ properly evaluated her RFC, and
the ALJ properly determined she retained the capacity to perform other work. ECF No. 13. The
Court will address each of the arguments Plaintiff has raised.
Development of the Record
Plaintiff claims the ALJ did not “fully and fairly develop the facts in the record.” ECF No.
12 at 6-7. Specifically, Plaintiff claims the ALJ did not fully develop the record as to her “poorly
healed fractures in both heels, hepatitis C, chronic urinary tract infections, and rheumatoid arthritis.”
Id. In response, Defendant argues the ALJ properly developed the record and fully considered the
medical evidence included in the record. ECF No. 13 at 5-7.
Upon review of Plaintiff’s claim, the Court finds no basis for reversal on this issue. Plaintiff
is correct that the ALJ has the duty “to develop the record fairly and fully.” See Snead v. Barnhart,
360 F.3d 834, 838 (8th Cir. 2004). That duty is not without limitation. The ALJ must only have a
“sufficient basis” for his or her decision. See Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994).
In the present action, there are over three hundred pages of medical records. (Tr. 215-521). These
records include Plaintiffs’ medical records from her treating physicians and a mental consultative
examination. Id. Considering these records, there appears to be a “sufficient basis” for the ALJ’s
Further, Plaintiff has not demonstrated that any further development of the record would have
been beneficial to the ALJ or resulted in a different outcome. Accordingly, no remand is required.2
See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993) (holding “absent unfairness or prejudice,
we will not remand” for further record development).
Step Two Determination
Plaintiff claims the ALJ improperly determined her bilateral calcaneal or heel fractures,
Plaintiff also briefly argues that her lack of consistent treatment should be excused because she was unable
to afford medical care. ECF No. 12 at 6-7. However, Plaintiff had not demonstrated she was denied care due to her
inability to pay. Id. Plaintiff’s bare allegation that she was unable to afford medical treatment does not excuse her
failure to receive consistent treatment. See Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999). Accordingly, the
Court need not consider this issue further.
rheumatoid arthritis, and generalized anxiety disorder were not severe impairments at Step Two of
the Analysis. ECF No. 12 at 7-9. In response, Defendant argues Plaintiff has not met her burden
of demonstrating these impairments qualify as severe. ECF No. 13 at 7-10. As such, the ALJ
properly determined they are non-severe impairments. Id.
A claimant suffers from a severe impairment if that impairment is more than slight and if that
impairment affects the claimant’s ability to do his or her basic work activities. See Householder v.
Bowen, 861 F.2d 191, 192 n.1 (8th Cir. 1988). The Supreme Court has also held that a claimant does
not suffer from a severe impairment where the claimant only suffers from “slight abnormalities that
do not significantly limit any ‘basic work activity.’” See Bowen v. Yuckert, 482 U.S. 137, 155 (1987)
(O’Connor, S., concurring); see also Brown v. Bowen, 827 F.2d 311, 311-12 (8th Cir. 1987)
(adopting Justice O’Connor’s language from Bowen v. Yuckert).
First, Plaintiff argues her bilateral calcaneal fractures or heel fractures are severe
impairments. ECF No. 12 at 7-9. Plaintiff received these fractures when she fell from a two-story
window in August of 2000. (Tr. 222-224). At that time, Plaintiff received treatment for those
fractures. (Tr. 221). After that, the record shows Plaintiff did not report any pain or seek any
treatment for those fractures until May of 2010 when she presented to the emergency room with left
foot pain after she fell and twisted her ankle. (Tr. 268). Apart from this presentation to the
emergency room in 2010, Plaintiff has received no further treatment for her heel fractures. Based
upon this information, the Court finds the ALJ properly determined her heel fractures are non-severe.
Second, Plaintiff argues her rheumatoid arthritis is a severe impairment. ECF No. 12 at 8.
Specifically, Plaintiff claims her rheumatoid arthritis is a severe impairment because it is an
“autoimmune disease with no cure” and “is a lifetime diagnosis.” Id. However, despite Plaintiff’s
claim, a diagnosis alone does not demonstrate an impairment is severe. Indeed, based upon the
standard outlined above, the impairment must impact the claimant’s ability to perform “basic work
activities” to be considered severe. Here, there has been no medical demonstration that Plaintiff’s
rheumatoid arthritis impacts her “basic work activities.” Accordingly, the Court finds the ALJ did
not err in finding this impairment is non-severe.
Third and finally, Plaintiff claims she suffers from the severe impairment of anxiety. ECF
No. 12 at 8. In support of her claim, Plaintiff references the consultative report completed by Dr.
Terry Efird, Ph.D. wherein Plaintiff was found to suffer from “generalized anxiety disorder.” (Tr.
293). Despite this diagnosis, however, Plaintiff has not demonstrated she has work limitations due
to her anxiety. ECF No. 12 at 8. Indeed, while Plaintiff claims she has “symptoms of nervousness,
excessive worry, and other signs of anxiety” that wold impact her ability to work, Plaintiff has
provided no medical records to support these allegations. Id. Thus, the Court finds the ALJ did not
err in finding this impairment is non-severe.
Plaintiff claims the ALJ erred in assessing the credibility of her subjective complaints. ECF
No. 12 at 9-10. 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
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.
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
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 fully complied with Polaski. (Tr. 24-27). In his opinion, the
ALJ provided several valid reasons for discounting Plaintiff’s subjective complaints.
Specifically, the ALJ first noted Plaintiff’s medical records did not support her allegations. Id.
Then, the ALJ found that despite her claim of being disabled, she was able to care for her two
children and “does what needs to be done to take care of her family”; was able “to drive, shop, and
perform household chores”; and collected unemployment benefits which required her to affirm she
was able to work. (Tr. 24-27). Considering this information, the Court finds no basis for reversing
the ALJ’s evaluation of Plaintiff’s subjective complaints. See Renstrom v. Astrue, 680 F.3d 1057,
1067 (8th Cir. 2012) (holding “[b]ecause the ALJ gave good reasons for discounting Renstrom’s
credibility, we defer to the ALJ’s credibility findings”).
Plaintiff argues the ALJ did not fully consider her limitations when he evaluated her RFC.
ECF No. 12 at 10-12. In making this claim, Plaintiff makes the bare argument that her impairments
are “well supported by the evidence” and should have been considered in evaluating her RFC. Id.
Plaintiff, however, does not reference any medical evidence in her briefing demonstrating
her limitations are as severe as she alleges and are disabling. ECF No. 12 at 10-12. Further, as noted
above, the ALJ properly found her subjective complaints of disability were not fully credible.
Plaintiff has the burden of demonstrating her RFC and her limitations. See Perks v. Astrue,
687 F.3d 1086, 1092 (8th Cir. 2012) (citation omitted). Because she has not met this burden by
providing credible evidence–either medical or subjective–demonstrating her alleged limitations, the
Court finds the ALJ did not err in assessing her RFC.
Step Five Evaluation
Plaintiff claims the ALJ’s disability determination is not supported by substantial evidence
in the record because she “cannot perform the jobs identified at Step Five.” ECF No. 12 at 12-13.
Specifically, Plaintiff claims the ALJ improperly assessed her RFC and presented that improper RFC
to the VE as a part of a hypothetical. Id. Plaintiff claims that based upon that defective hypothetical,
the VE improperly found Plaintiff retained the capacity to perform other work existing in significant
numbers in the national economy. Id.
Despite this claim, as noted above, the ALJ’s RFC determination is supported by substantial
evidence in the record. Accordingly, because the ALJ presented to the vocational expert the
limitations he found to be credible based upon his assessment of Plaintiff’s RFC, his Step Five
determination is supported by substantial evidence in the record. See Gragg v. Astrue, 615 F.3d
932, 940 (8th Cir. 2010) (holding “[t]he hypothetical question need only include those impairments
and limitations found credible by the ALJ”). Thus, the Court finds no basis for reversal on this issue.
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 25th day of November 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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