Cato v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 27, 2017. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BERNICE CATO
vs.

PLAINTIFF
Civil No. 2:16-cv-02076

NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Bernice Cato (“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 applications for
Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), and a period of
disability 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. 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 applications on May 9, 2013. (Tr. 10). In these

applications, Plaintiff alleges being disabled due to bladder mesh problems with multiple surgeries,
mental anxiety, diabetes, gout, and plantar fasciitis. (Tr. 246). Plaintiff alleges an onset date of
April 30, 2013. (Tr. 10). These applications were denied initially and again upon reconsideration.
(Tr. 66-121).
Plaintiff requested an administrative hearing on her denied applications. (Tr. 138-141). This
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request was granted, and Plaintiff’s administrative hearing was held on June 30, 2014 in Fort Smith,
Arkansas. (Tr. 27-65). At this hearing, Plaintiff was present and was represented by counsel, Susan
Brockett. Id. Plaintiff and a Vocational Expert (“VE”) Deborah Steele testified at this hearing. Id.
During this hearing, Plaintiff testified she was thirty-eight (38) years old, which is defined as a
“younger person” under 20 C.F.R. § 404.1563(c) and 20 C.F.R. § 416.963(c). (Tr. 30). As for her
education, Plaintiff testified she graduated high school and attended some college. (Tr. 30).
On February 25, 2015, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s applications. (Tr. 7-22). The ALJ determined Plaintiff met the insured
status requirements of the Act through December 31, 2017. (Tr. 12, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 30, 2013,
her alleged onset date. (Tr. 12, Finding 2). The ALJ determined Plaintiff has the following severe
impairments: diabetes mellitus, back disorder, bladder disorder, affective disorder, anxiety disorder,
and personality disorder. (Tr. 12-13, Finding 3). 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. 13-14, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 14-20, 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 the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a) except she can only occasionally climb,
balance, stoop, kneel, crouch and crawl. In addition, she can perform simple, routine
and repetitive tasks in a setting where interpersonal contact is incidental to the work
performed. She requires supervision that is simple, direct, and concrete.
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Id.
Considering her RFC, the ALJ determined Plaintiff did not retain the capacity to perform any
of her PRW. (Tr. 20-21, Finding 6). The ALJ then determined whether Plaintiff retained the
capacity to perform other work existing in significant numbers in the national economy. (Tr. 21-22,
Finding 10). The VE testified at the administrative hearing regarding this issue. (Tr. 27-65). Based
upon that testimony, the ALJ determined Plaintiff retained the capacity to perform the requirements
of representative sedentary occupations such as the following: (1) inspector/checker with 160 such
jobs in Arkansas and 13,600 such jobs in the national economy; (2) check weigher with 164 such
jobs in Arkansas and 13,646 such jobs in the national economy; and (3) and shoe buckler/lacer with
170 such jobs in Arkansas and 36,000 such jobs in the national economy. (Tr. 21). Because Plaintiff
retained the capacity to perform other work, the ALJ determined Plaintiff had not been under a
disability, as defined by the Act, from April 30, 2013 through the date of his decision or through
February 25, 2015. (Tr. 22, Finding 11).
Plaintiff sought review with the Appeals Council. (Tr. 5). On March 25, 2016, the Appeals
Council denied her request for review. (Tr. 1-3). On April 5, 2016, 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, 13-14. 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)
(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
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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
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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 claims the following: (A) the ALJ erred in his credibility

determination; and (B) the ALJ erred in assessing her RFC. ECF No. 13 at 9-16. The Court will
consider each of both of these arguments.
A.

Credibility Determination

Plaintiff claims the ALJ did not properly evaluate her credibility. ECF No. 13 at 9-13. 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 and 20 C.F.R.
§ 416.929.1 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;

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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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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 Court finds the ALJ properly considered Plaintiff’s subjective
complaints. Indeed, in addition to making other findings, the ALJ specifically noted Plaintiff was
found to have “drug seeking behavior” by two different medical providers and tested positive for
Tramadol despite having not been prescribed that medication. (Tr. 18). The ALJ also considered
Plaintiff’s daily activities and found while she reported suffering from very limited daily activities,

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there was little support in the record for those allegations. (Tr. 18). Based upon this information,
the Court finds the ALJ has supplied “good reasons” for discounting Plaintiff’s subjective
complaints. See Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990) (recognizing a court will
normally defer to an ALJ’s evaluation of a claimant’s subjective complaints if that determination is
supported by “good reasons”). Thus, the Court finds no basis for reversal on this issue.
B.

RFC Evaluation

Plaintiff claims the ALJ did not properly evaluate her RFC. ECF No. 13 at 13-16.
Specifically, Plaintiff claims she would be unable to perform sedentary work as the ALJ found and
would also “have problems with concentration, persistence and pace due to pain.” Id.
Upon review of the ALJ’s opinion in Plaintiff’s case, this Court finds no basis for reversal
on this issue. Indeed, the ALJ fully considered Plaintiff’s medical records and alleged limitations.
(Tr. 14-20). Apart from referencing her alleged pain (which is addressed above), Plaintiff has
supplied no valid basis for reversing the ALJ’s RFC determination. ECF No. 13 at 13-16. Thus, the
Court also finds no basis for reversing the ALJ’s RFC determination.
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 27th day of March 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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