Bruno v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 31, 2017. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JESSICA INEZ BRUNO
vs.

PLAINTIFF
Civil No. 2:15-cv-02263

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Jessica Inez Bruno (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), 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 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. 6.1 Pursuant to this authority, the Court
issues this memorandum opinion and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff’s application for DIB was filed on July 21, 2010 and SSI was filed on July 24, 2010.
(Tr. 46-49, 103-110). Plaintiff alleged she was disabled due to ADHD, clinical depression, and
inter-explosive disorder. (Tr. 140). Plaintiff alleged an onset date of January 1, 2009. Id. These
applications were denied initially and again upon reconsideration. (Tr. 9). Thereafter, Plaintiff

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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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requested an administrative hearing on her applications and this hearing request was granted. (Tr.
65).
After a hearing, the ALJ issued an unfavorable decision on October 26, 2011. (Tr. 9-18).
The Appeals Council denied review. (Tr. 1-5). Plaintiff successfully appealed this decision and on
January 16, 2014, this Court reversed and remanded the case to the Commissioner. (Tr. 353-361).
Plaintiff had subsequent administrative hearings December 1, 2014 and on July 14, 2015.
(Tr. 272-305, 252-271). During the July 2015 hearing, it was noted Plaintiff had failed to appear for
three consultative exams. (Tr. 254). Also at this hearing, Plaintiff amended her claim and requested
a closed period of disability from January 1, 2009 through March 30, 2013, because she went back
to work. (Tr. 255-256, 266-267, 276, 290, 293).
Plaintiff was present and was represented by counsel, David Harp, at the hearings. (Tr. 252271, 272-305). Plaintiff and Vocational Expert (“VE”) Debra Steele testified at the hearings. Id.
At the time of the hearings, Plaintiff was twenty-seven (27) years old and had a tenth grade
education. (Tr. 278-279).
On November 4, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB and SSI. (Tr. 235-246). In this decision, the ALJ determined the Plaintiff met
the insured status requirements of the Act through September 30, 2009. (Tr. 237, Finding 1). The
ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) from January
1, 2009, through March 30, 2013. (Tr. 237, Finding 2).
The ALJ determined Plaintiff had the severe impairments of dysthymia, a learning disorder,
anxiety disorder, personality disorder, and intermittent explosive disorder. (Tr. 237, Finding 3). The
ALJ then determined Plaintiff’s impairments did not meet or medically equal the requirements of

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any of the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr.
238, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 239-244). First, the ALJ indicated he 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 a full range of work at all exertional levels except only where interpersonal
contact with coworkers and supervisors was incidental to the work performed; no contact with the
public; complexity of task was learned and performed by rote with few variables and use of little
judgment; and the supervision was simple, direct, and concrete. (Tr. 239-240, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 244, Finding 6). The ALJ
found Plaintiff had no PRW during the alleged closed period of disability. Id. The ALJ, however,
also determined there was other work existing in significant numbers in the national economy
Plaintiff could perform. (Tr. 245, Finding 10). The ALJ based this determination upon the testimony
of the VE. Id. Specifically, the VE testified that given all Plaintiff's vocational factors, a
hypothetical individual would be able to perform the requirements of a representative occupation
such as production helper with 900 such jobs statewide and 38,100 such jobs in the nation, industrial
cleaner with 9,000 such jobs statewide and 1,096,000 such jobs in the nation, gluer with 3,900 such
jobs statewide and 220,100 such jobs in the nation, photo machine copy operator with 190 such jobs
statewide and 27,200 such jobs in the nation, press clipping cutter and paster with 700 such jobs
statewide and 99,900 such jobs in the nation, and nut sorter with 160 such jobs statewide and 13,600
such jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff had not been
under a disability as defined by the Act from January 1, 2009 to March 30, 2013. (Tr. 246, Finding

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11).
Plaintiff exhausted all administrative remedies, and on December 23, 2015, Plaintiff filed the
present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on December 29,
2015. ECF No. 6. Both Parties have filed appeal briefs. ECF Nos. 12, 14. 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).
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

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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).
3. Discussion:
Plaintiff brings the present appeal claiming the ALJ erred: (A) in the RFC determination, (B)
in his credibility analysis, and (C) in the Step 5 determination. ECF No. 12, Pgs. 9-16. In response,
the Defendant argues the ALJ did not err in any of his findings. ECF No. 14.

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A. RFC
Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required
to determine a claimant’s RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must
be based on medical evidence that addresses the claimant’s ability to function in the workplace. See
Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). The ALJ should consider “‘all the evidence
in the record’ in determining the RFC, including ‘the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.’” Stormo v. Barnhart,
377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002)).
The Plaintiff has the burden of producing documents and evidence to support his or her claimed
RFC. See Cox, 160 F.3d at1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The ALJ, however, bears the primary responsibility for making the RFC determination and
for ensuring there is “some medical evidence” regarding the claimant’s “ability to function in the
workplace” that supports the RFC determination. Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir.
2001). Furthermore, this Court is required to affirm the ALJ’s RFC determination if that
determination is supported by substantial evidence on the record as a whole. See McKinney v. Apfel,
228 F.3d 860, 862 (8th Cir. 2000).
In this matter, the ALJ determined Plaintiff retained the RFC to perform a full range of work
at all exertional levels except only where interpersonal contact with coworkers and supervisors was
incidental to the work performed; no contact with the public; complexity of task was learned and
performed by rote with few variables and use of little judgment; and the supervision was simple,
direct, and concrete. (Tr. 239-240, Finding 5). Plaintiff argues the ALJ should have given more
weight to the opinion and mental findings of consultative examiner Dr. Patricia Walz. ECF No. 12,
Pgs. 9-14. However, substantial evidence supports the ALJ’s RFC determination.
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In his decision, the ALJ assigned little weight to Dr. Walz’s opinion of severe restrictions
in the RFC questionnaire. (Tr. 228-231). The ALJ properly assigned little weight to Dr. Walz’s
opinion, as she provided no objective findings to support her assessment, and there were no clinical
findings from Dr. Walz’s MMPI-2 report that support greater restrictions. (Tr. 225, 244).
The ALJ assigned substantial weight to the assessment from Dr. Diane Brandmiller who
prepared a Mental Diagnostic Evaluation on Plaintiff on September 16, 2009. (Tr. 176-182). Dr.
Brandmiller indicated Plaintiff appeared capable of sustaining concentration and persistence on basic
tasks because she had the ability to track and respond to various questions and tasks without
significant psychomotor slowing; she exhibited good performance on short-term memory tasks with
a five-minute delay; she could attend and sustain concentration on simple tasks; and she was able
to perform simple mathematical calculations. (Tr. 181-182). Dr. Brandmiller also noted Plaintiff
did not display unusual or bizarre behavior, her grooming and hygiene were appropriate, and she was
able to interact in a socially appropriate manner. (Tr. 181).
Additionally, it should be noted Plaintiff worked at substantial gainful activity as a cashier
at Lowes for more than nine months immediately following the end of her alleged closed period of
disability. (Tr. 282-284). During this period, there was no mental health treatment, which would
refute her alleged inability to deal with coworkers and supervisors. Furthermore, Plaintiff testified
her period of disability ended because she returned to work. (Tr. 255).
As shown by the above medical evidence, substantial evidence supports the ALJ’s RFC
determination. Plaintiff has the burden of establishing her 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 her 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
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affirmed.
B. ALJ’s Credibility Determination
Plaintiff claims the ALJ erred in her credibility determination. ECF No. 12, Pgs. 14-15. In
response, Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective
complaints pursuant to the directives of Polaski. ECF No. 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 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

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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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[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).
Plaintiff argues the ALJ erred in assessing her credibility as it related to the limiting effects
of her impairments and did not fully consider her subjective complaints. 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 Polaski, 20 C.F.R. §
404.1529, and 20 C.F.R. § 416.929, and stated inconsistencies between Plaintiff’s testimony and the
record. (Tr. 240-244). 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
inconsistent with the record, (3) No physician has placed a level of limitation on Plaintiff’s activities
comparable to those described by Plaintiff, (4) medical treatment history, (5) Plaintiff’s lack of
medication use, and (6) Plaintiff’s work history following her alleged closed period. Id.
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
complaints of pain.
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C. Step 5 Determination
At Step Five of a disability determination, the SSA has the burden of establishing that a
claimant retains the ability to perform other work in the economy. See Snead v. Barnhart, 360 F.3d
838, 836 (8th Cir. 2004). The SSA may meet this burden by either applying the Grids or by relying
upon the testimony of a VE. See Cox v. Astrue, 495 F.3d 614, 621 (8th Cir. 2004) (finding the SSA’s
denial of benefits was supported by substantial evidence where the VE’s testimony was based on a
correctly-phrased hypothetical question); Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003)
(finding the SSA’s denial of benefits was supported by substantial evidence where the ALJ applied the
Grids).
The SSA may not apply the Grids, and must hear testimony from a VE, where a claimant’s
RFC is significantly diminished by a nonexertional limitation. See McGeorge v. Barnhart, 321 F.3d
766, 768-769 (8th Cir. 2003). If, however, the SSA properly determines a claimant’s RFC is not
significantly diminished by a nonexertional limitation, then the SSA may rely exclusively upon the
Grids and is not required to hear the testimony from a VE. See McGeorge, 321 F.3d at 768-769.
In this matter, the ALJ heard testimony from a VE regarding Plaintiff’s ability to perform work
in the national economy. It is generally accepted that VE testimony, in response to a hypothetical
question, is substantial evidence if the hypothetical sets forth the credible impairments with reasonable
precision. See Starr v. Sullivan, 981 F.2d 1006 (8th Cir. 1992). It has further been established the ALJ
must only include in the hypothetical those impairments which the ALJ actually finds credible, and not
those which he rejects, assuming his findings are supported by substantial evidence. See Onstad v.
Shalala, 999 F.2d 1232 (8th Cir. 1993).
The ALJ found Plaintiff had the RFC perform a full range of work at all exertional levels
except only where interpersonal contact with coworkers and supervisors was incidental to the work
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performed; no contact with the public; complexity of task was learned and performed by rote with
few variables and use of little judgment; and the supervision was simple, direct, and concrete. (Tr.
239-240, Finding 5). In response to a hypothetical question containing these limitations, the VE
testified work existed in the national economy consistent with the limitations found by the ALJ. (Tr.
296-288). The ALJ found a significant number of jobs existed in the national economy which Plaintiff
could perform. (Tr. 245, Finding 10). Relying on the VE testimony, the ALJ found Plaintiff was not
under a disability as defined by the Act from January 1, 2009 to March 30, 2013. (Tr. 246, Finding
11).
I find the ALJ's hypothetical question properly set forth those limitations the ALJ found
credible and which are supported by the evidence of record. See Haynes v. Shalala, 26 F.3d 812, 815
(8th Cir. 1994); Rappoport v. Sullivan, 942 F.2d 1320, 1322 (8th Cir. 1991) (ALJ need only include
in his hypothetical question those impairments he accepts as true). The VE stated jobs existed in both
the national and regional economy for the vocational profile of the Plaintiff. Such testimony, based
on a hypothetical question consistent with the record, provided substantial evidence.
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 31st day of January 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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