Forehand v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 6, 2017. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
RUSSELL A. FOREHAND
vs.

PLAINTIFF
Civil No. 2:16-cv-02069

NANCY A. BERRYHILL
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Russell Forehand (“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 his application for
Disability Income 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. 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’s applications for DIB and SSI were filed on May 14, 2013. (Tr. 10, 172-179).
Plaintiff alleged he was disabled due to right eye blindness, carpal tunnel syndrome, bronchitis,
hypertension, peripheral neuropathy, club feet, asthma, tendinitis, nerve pain, and diabetes. (Tr. 10,
191). Plaintiff alleged an onset date of June 15, 2005. (Tr. 10). These applications were denied

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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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initially and again upon reconsideration. (Tr. 10). Thereafter, Plaintiff requested an administrative
hearing on his applications and this hearing request was granted. (Tr. 129).
Plaintiff’s administrative hearing was held on July 17, 2014. (Tr. 24-68). Plaintiff was
present and was represented by counsel, Susan Brockett, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Dianne Smith testified at this hearing. Id. At the time of this hearing, Plaintiff was
fifty-five (55) years old and had a tenth grade education. (Tr. 28, 32).
On November 24, 2014, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB and SSI. (Tr. 10-19). In this decision, the ALJ determined the Plaintiff last met
the insured status of the Act on March 31, 2010. (Tr. 12, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since March 19, 2008, the
amended onset date. (Tr. 12, Finding 2).
The ALJ determined Plaintiff had the severe impairments of right eye blindness, carpal
tunnel syndrome, bronchitis, hypertension, peripheral neuropathy, and diabetes. (Tr. 13, Finding 3).
The ALJ then 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 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 13-17). First, the ALJ indicated he 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 medium work with no more than frequent reaching and handling, and the work
having to be in a climate-controlled environment with no temperature extremes, heavy chemicals,
heavy dust, heavy fumes, or humidity. (Tr. 13, Finding 5).

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The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17, Finding 6). The ALJ
found Plaintiff was not capable of performing his PRW. Id. The ALJ, however, also determined
there was other work existing in significant numbers in the national economy Plaintiff could perform.
(Tr. 18, 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 representative occupations such as linen room
attendant with 4,000 such jobs in the region and 40,000 such jobs in the nation and bagger with
10,000 such jobs in the region and 165,000 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 March 9, 2008,
through the date of the decision. (Tr. 19, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 5-6).
See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr.
1-3). On March 23, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to
the jurisdiction of this Court. ECF No. 5. 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

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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

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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) by failing to fully develop the
record, (B) in his credibility analysis, and (C) in the RFC determination. ECF No. 12, Pgs. 8-14.
In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 13.
A. Duty to Develop 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.
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).
Plaintiff argues the ALJ should have ordered a consultative examination. ECF No. 12, Pgs.

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9-10. Defendant argues substantial evidence shows the ALJ met his duty to fairly develop the
record.
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).
Further, Plaintiff must not only show the ALJ failed to fully and fairly develop the record,
but that he was prejudiced or treated unfairly by the ALJ’s alleged failure to develop the record.
Plaintiff has not set forth any evidence showing had the ALJ requested additional consultative
examinations, the ALJ would have arrived at a different decision.
Therefore, I find the ALJ satisfied his duty to fully and fairly develop the record in this
matter.
B. ALJ’s Credibility Determination
Plaintiff claims the ALJ erred in his credibility determination. ECF No. 12, Pgs. 10-12. In
response, Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective
complaints pursuant to the directives of Polaski. ECF No. 13.
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

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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.
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.

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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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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. 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. 14-17). Specifically, the ALJ noted the following: (1) Absence of objective medical
findings to support Plaintiff’s alleged disabling pain, (2) Work activity after the alleged onset date,
(3) No physician has placed a level of limitation on Plaintiff’s activities comparable to those
described by Plaintiff, (4) Sporadic work history prior to onset date, and (5) Not fully compliant with
his treatment. 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.
C. 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,
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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 medium work with
no more than frequent reaching and handling, and the work having to be in a climate-controlled
environment with no temperature extremes, heavy chemicals, heavy dust, heavy fumes, or humidity.
(Tr. 13, Finding 5). Plaintiff argues the ALJ erred in this RFC determination. ECF No. 12, Pgs. 1214. Specifically, Plaintiff argues the ALJ did not include limitations in the RFC to account for
Plaintiff’s alleged clubbed feet, bilateral numbness and tingling in the extremities, and discounted
the opinion of the state agency medical consultant. Id.
A review of the medical evidence shows Plaintiff’s alleged bilateral numbness, tingling, and
corrected club feet did not result in functional limitations beyond those found by the ALJ in the RFC.
Furthermore, Plaintiff has not supplied evidence showing any specific limitations greater than those
found by the ALJ. Plaintiff has the burden of demonstrating her RFC limitations. See Goff v.
Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (citation omitted) (recognizing “[a] disability claimant
has the burden to establish her [or her] RFC”).
Also, the ALJ discounted the state agency’s medical opinion for valid reasons. (Tr. 16-17).
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Plaintiff’s testimony about his capabilities exceeded the limitations the state agency medical
consultant found. Id. An ALJ may discount an opinion if it is inconsistent with the claimant’s
reported activities. Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009). The state agency medical
consultant found Plaintiff could lift no more than 20 pounds, while Plaintiff admitted in his disability
application that he could lift as much as 25 pounds. (Tr. 106, 215). The ALJ also found the opinions
were inconsistent with the evidence which showed Plaintiff’s physical exams had been essentially
normal. Thus, the ALJ had a valid basis for affording the opinion less weight.
Substantial evidence supports the ALJ’s RFC determination. 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
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.
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 6th day of April 2017.

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

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