Chronister v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 2, 2017. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DENA LARIE CHRONISTER
vs.

PLAINTIFF
Civil No. 2:15-cv-02174

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Dena Larie Chronister (“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 Disability Insurance Benefits (“DIB”) and a period of disability 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.
1.

Background:
Plaintiff protectively filed her disability application on August 17, 2009. (Tr. 8, 124-127).

In her application, Plaintiff alleges being disabled due to fibromyalgia, back pain, neck pain, and
shoulder pain. (Tr. 144). Plaintiff alleges an onset date of July 14, 2008. (Tr. 8). This application
was denied initially and again upon reconsideration. (Tr. 60-61).

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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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Thereafter, Plaintiff requested an administrative hearing on her denied application, and that
hearing request was granted. (Tr. 27-59). Plaintiff’s first administrative hearing was held on August
4, 2010 in Fort Smith, Arkansas. Id. After that hearing, the ALJ entered a fully unfavorable decision
denying Plaintiff’s DIB application. (Tr. 5-15). Thereafter, Plaintiff appealed that denial to this the
U.S. District Court for the Western District of Arkansas. See Chronister v. SSA, 2:12-cv-02117
(W.D. Nov. 26, 2012). As a part of this appeal, the SSA requested Plaintiff’s case be reversed and
remanded for additional record development. Id. This request was granted, and Plaintiff’s case was
reversed and remanded. Id. ECF Nos. 8-9.
Subsequently, the ALJ held two additional administrative hearings, one on August 16, 2012
and one on September 23, 2014.2 (Tr. 368-448). At Plaintiff’s third hearing on September 23, 2014,
Plaintiff was present and was represented by Iva Gibbons. (Tr. 368-399). Plaintiff and Vocational
Expert (“VE”) John Massey testified at this hearing. Id.
On May 8, 2015, after her third administrative hearing, the ALJ entered a fully unfavorable
decision again denying Plaintiff’s application. (Tr. 348-360). The ALJ determined Plaintiff met the
insured status requirements of the Act through June 30, 2015. (Tr. 353, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since her alleged onset
date of July 14, 2008. (Tr. 353, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: fibromyalgia, mild osteoarthritis or degenerative joint disease of the thoracolumbar
spine with chronic back pain, and a history of iron deficiency anemia. (Tr. 353-355, Finding 3).

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At the administrative hearing on August 16, 2012, Plaintiff testified she was forty-three (43)
years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c). (Tr. 405). As for her
education, Plaintiff testified she graduated from high school and had approximately one year of college.
Id.

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The ALJ also 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. 355, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 355-360, 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 capacity to perform a wide range of light work:
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) except the claimant is able to occasionally climb ramps and stairs,
can never climb ladders, ropes and scaffolds, and can occasionally balance, stoop,
kneel, crouch and crawl. In addition, she must avoid concentrated exposure to
temperature extremes, humidity, wetness and hazards and cannot drive as a part of
work.
Id.
The ALJ then considered whether Plaintiff retained the capacity to perform her Past Relevant
Work (“PRW”). (Tr. 360, Finding 6). Considering her RFC, age, education, and work history, the
ALJ determined Plaintiff retained the capacity to perform her PRW as a panty hose seam machine
operator and inspector (light, semiskilled); and mail sorter (light, skilled). Id. Because Plaintiff
retained the capacity to perform her PRW, the ALJ determined Plaintiff had not been under a
disability, as defined by the Act, from July 14, 2008 (alleged onset date) through May 8, 2015 (date
of the ALJ’s decision). Id.
Thereafter, on August 31, 2015, Plaintiff filed her Complaint in this case. ECF No. 1. Both
Parties have filed appeal briefs and have consented to the jurisdiction of this Court. ECF Nos. 5, 8,
10. This case is now ready for decision.
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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)
(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).
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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).
3.

Discussion:
In her appeal brief, Plaintiff argues the following: (A) the ALJ erred by failing to properly

develop the evidence in the record; (B) the ALJ erred by failing to consider evidence that detracted
from his findings; (C) the ALJ failed to apply proper legal standards; and (D) the ALJ erred in
finding she retained the capacity to perform her PRW. ECF No. 8 at 1-20. The Court will consider
each of these arguments.
A.

Record Development

Plaintiff claims the ALJ failed to fully and fairly develop the record in her case and failed to
recontact her treating physician and treating physical therapist. ECF No. 8 at 11-13. As an initial

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matter, the ALJ only has the obligation “to develop a reasonably complete record.” Clark v. Shalala,
28 F.3d 828, 830-31 (8th Cir. 1994). Here, the transcript in this case is over 700 pages long. This
transcript includes several hundred pages of medical records, including her treatment records. (Tr.
214-347, 642-757). The transcript also includes two consultative examination reports from 2014.
(Tr. 746-757). Based upon this information, the Court finds this is a “reasonably complete record.”
As a final point, a social security case should only be remanded for failure to develop the
record where there has been a showing of prejudice or unfair treatment. See Onstad v. Shalala, 999
F.2d 1232, 1234 (8th Cir. 1993) (holding “absent unfairness or prejudice, we will not remand”).
Here, Plaintiff has made no specific showing of prejudice or unfair treatment. ECF No. 8 at 11-13.
Indeed, Plaintiff merely speculates that the ALJ would have found she had greater limitations if he
had further developed the record. Id. Thus, the Court finds Plaintiff has not made the showing
required for a remand in this action to further develop the record.
B.

Consideration of Evidence

Plaintiff claims the ALJ erred by failing to consider all of the symptoms related to her
fibromyalgia, including her “IBS or depression, anxiety disorder, chronic fatigue syndrome, TMJ,
and migraines or headaches.” ECF No. 8 at 14. Plaintiff claims these impairments would “result
in the need for daytime rest periods which would translate into unscheduled breaks and absenteeism
in the work place.” Id.
Upon review of Plaintiff’s claim, the Court finds this argument is without merit. Indeed, in
his opinion, the ALJ fully considered Plaintiff’s alleged impairments and limitations due to her
fibromyalgia. (Tr. 355-360). The ALJ, however, then decided to discount may of those alleged
limitations because he found they were not credible or supported by the record. Indeed, the ALJ
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noted the following regarding Plaintiff’s fibromyalgia:
Moreover, as directed by the District Court, the undersigned has evaluated the
claimant’s fibromyalgia in accordance with SSR Ruling 12-2 and has determined the
record supports a finding that the claimant’s fibromyalgia is severe but not disabling.
In making this finding, the undersigned has considered the severity of the claimant’s
symptoms as evidenced by the medical record. Notably, records indicated the
claimant was treated routinely for pain with amitriptyline, which she specifically
stated helped her more than anything else. The evidence also shows that the claimant
went to the doctor only intermittently and less often as time went by. Further, there
is no evidence she was hospitalized or that she sought or was prescribed narcotic pain
relievers for severe pain. In addition, the claimant stated she was able to perform
personal care and some household chores, as well as drive herself, go out alone,
attend her daughters’ sporting events and go on vacation. In addition, she testified
she was able to work part-time which is indicative of her functional capacity.
Moreover, the clinic notes throughout the record indicated the claimant’s doctors
encouraged her to remain active, perform stretching exercises and take part in a
conditioning program.
(Tr. 359-360). Based upon this assessment, the Court cannot find the ALJ erred in considering the
evidence related to her Fibromyalgia.
C.

Legal Standards

Plaintiff claims the ALJ failed to apply the proper legal standards in (1) assessing her
subjective complaints, (2) considering the records from her treating physicians, and (3) assessing her
RFC. ECF No. 8 at 14-20. The Court will address each of these separately.
i.

Credibility

As for her claim the ALJ erred by failing to properly consider her subjective complaints, the
Court finds this argument is without merit. 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.

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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.
Polaski, 739 at 1322.

See

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
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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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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, as noted above, the ALJ provided several valid reasons for discounting
Plaintiff’s subjective complaints. These include her daily activities and her history of medical
treatment or lack thereof. See Tr. 359-360. Plaintiff claims the ALJ misconstrued some of this
evidence to “fit” his RFC determination and framework. ECF No. 8 at 14-20. Upon review, the
Court finds no basis for this argument. Indeed, even though Plaintiff claims she has a given number
of limitations, the ALJ is not required to accept all of those limitations as long as he discounts those
allegations for legally-sufficient reasons. See, e.g., Guilliams v. Barnhart, 393 F.3d 798, 801
(credibility determination must be supported by “good reasons and substantial evidence”).
ii.

Treating Physicians

Plaintiff claims the ALJ failed to properly consider the findings of her treating physicians,
including her treating physical therapist. ECF No. 8 at 17-19. Upon review, however, her “treating
physicians” and physical therapist did not have many recent treatment records. As noted by the ALJ,
Plaintiff “saw her primary care physician twice in 2011, and once in 2012, 2013, and 2014, primarily
for medication refills.” (Tr. 357). The ALJ also noted in his opinion that Plaintiff “went to the
doctor only intermittently and less often as time went by.” (Tr. 359). Further, the ALJ did fully
consider their opinions in his decision. (Tr. 355-360). Thus, the Court cannot find the ALJ
improperly applied the legal standard or improperly considered their opinions.
iii.

RFC Determination

Plaintiff claims the ALJ erred in assessing her RFC. ECF No. 8 at 19. In making this
argument, Plaintiff again appears to assume that the ALJ must adopt all of the limitations she claims.
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As noted above, the ALJ provided valid reasons for not adopting those findings. Thus, the Court
cannot find a basis for reversal on this issue.
D.

Past Relevant Work

Plaintiff claims the ALJ erred in determining she could return to her PRW. ECF No. 8 at 20.
Upon review of this argument, Plaintiff again focuses on the limitations–headaches, severe back
pain, severe neck pain, and stress–that she claims cause her to be disabled. As noted above, the ALJ
did not adopt all of those alleged limitations. Thus, the ALJ was not required to consider whether
they would preclude her from performing her PRW.
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 2nd day of February 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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