McReynolds v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 28, 2017. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
PAULA R. MCREYNOLDS
vs.

PLAINTIFF
Civil No. 2:16-cv-02121-BAB

NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration1

DEFENDANT

MEMORANDUM OPINION
Paula R. McReynolds (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking
judicial review of a final decision of the Commissioner of the Social Security Administration
(“SSA”) denying her claim for a period of disability and disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) benefits under Titles II and XVI of the Social Security Act
(“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).2 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 for DIB and SSI on August 19, 2011.

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to
be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
2

The docket numbers for this case are referenced by the designation “ECF No. ___.” The
transcript pages for this case are referenced by the designation “ECF No. ___, p. ___.”
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(ECF No. 8, pp. 80-83). In her applications, Plaintiff alleges being disabled due to chronic
obstructive pulmonary disease (“COPD”), diabetes, bulging discs in her lower back and neck,
depression, anxiety, and post-surgical problems of her left forearm. (ECF No. 8, p. 169). Plaintiff
alleges an onset date of August 1, 2009. (ECF No. 8, p. 165). These applications were denied
initially and again upon reconsideration. (ECF No. 8, pp. 80-83).
Thereafter, Plaintiff requested an administrative hearing on her denied applications, and this
hearing request was granted. (ECF No. 8, p. 108). After this hearing, on May 24, 2013, the ALJ
entered an unfavorable decision denying Plaintiff’s applications for DIB and SSI. (ECF No. 8, pp.
21-32). Plaintiff subsequently filed an appeal with this Court. McReynolds v. Colvin, No. 2:14-cv02226, 2015 WL 3866773 (W.D. Ark. 2015). The May 24, 2013, decision of the ALJ was reversed
and remanded for failure to properly analyze Plaintiff’s subjective complaints in accordance with the
requirements of Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). Id.
Plaintiff’s second administrative hearing was held on November 3, 2015, in Fort Smith,
Arkansas. (ECF No. 8, pp. 1155-199). Plaintiff was present and was represented by Iva Nell
Gibbons. Id. Plaintiff and VE Larry Seifert testified at this hearing. Id. At the time of this hearing,
Plaintiff was forty years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c);
20 C.F.R. § 416.963(c). (ECF No. 8, p. 1158). As for her level of education, Plaintiff earned a
GED. Id.
After this hearing, on February 4, 2016, the ALJ entered an unfavorable decision denying
Plaintiff’s applications for DIB and SSI. (ECF No. 8, pp. 1129-146). In this decision, the ALJ found
Plaintiff met the insured status requirements of the Act through March 31, 2014. (ECF No. 8, p.
1135, Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”)
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since August1, 2009, her alleged onset date. (ECF No. 8, p. 1135, Finding 2). The ALJ determined
Plaintiff had the following severe impairments: “Musculoskeletal Disorder (Back Disorder,
gegenerative disc disease) (7240); Respiratory Disorder (Chronic Pulmonary Insufficiency, COPD)
(4960); Endocrine Disorder (Diabetes Mellitus) (2500); Special/Other Disorders (Obesity) (2780);
and Mental Disorders (Affective Disorder, anxiety) (3000) and (Personality Disorder (3010). (ECF
No. 8, pp. 1135-136, Finding 3). Despite being severe, the ALJ determined these impairments did
not meet or medically equal the requirements of any of the Listings of Impairments in Appendix 1
to Subpart P of Part 404 (“Listings”). (ECF No. 8, pp. 1136-138, Finding 4).
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (ECF No. 8, pp.
1139-144, 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 RFC to perform:
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except as follows:
[Plaintiff] can frequently lift and/or carry less than ten pounds, and occasionally ten
pounds, sit for a total of six hours in an eight hour workday, and stand and/or walk
for a total of at least two hours in an eight hour workday. [Plaintiff] can occasionally
climb, balance, crawl, kneel, stoop, or crouch. [Plaintiff] can perform simple,
routine, and repetitive tasks in a setting where interpersonal contact is incidental to
the work performed. [Plaintiff] can respond to supervision that is simple, direct, and
concrete. [Plaintiff] must avoid concentrated exposure to pulmonary irritants like
dusts, odors, and gasses.
Id.
The ALJ then determined Plaintiff was unable to perform any Past Relevant Work (“PRW”).
(ECF No. 8, p. 1144, Finding 6). The VE testified at the administrative hearing regarding this issue.
(ECF No. 8, pp. 1193-198). Based on Plaintiff’s age, education, work experience, and RFC, the ALJ
determined there were jobs existing in significant numbers in the national economy Plaintiff could
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perform, such as a compact assembler, which has a DOT code of 739.687-066, with approximately
five thousand (5,000) jobs in the national economy and approximately one hundred three (103) jobs
in the state of Arkansas, as a semiconductor bonder, which has a DOT code of 726.685-066, with
approximately five thousand four hundred one (5,401) jobs in the national economy and
approximately seventy (70) jobs in the state of Arkansas, and as a printed circuit board checker,
which has a DOT code of 726.684-110, with approximately one hundred five (105) jobs in the state
of Arkansas. (ECF No. 8, pp. 1145-146, Finding 10). Because jobs exist in significant numbers in
the national economy which Plaintiff can perform, the ALJ also determined Plaintiff had not been
under a disability, as defined by the Act, from August 1, 2009, through February 4, 2016, the date
of the ALJ’s decision. (ECF No. 8, p. 1146, Finding 11).
On May 31, 2016, Plaintiff filed the present appeal with this Court. (ECF No. 1). The
Parties consented to the jurisdiction of this Court on June 1, 2016. (ECF No. 5). 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 to support 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
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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), 1382c(a)(3)(D). A plaintiff must show
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), 1382c(a)(3)(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 there are other jobs in the national economy the claimant can perform.
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see Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 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(a)(4)(v), 416.920(a)(4)(v).
3.

Discussion:
In her appeal brief, Plaintiff raises the following six arguments for reversal: (1) the ALJ erred

by failing to fully develop the record; (2) the ALJ erred by failing to consider evidence which fairly
detracted from his findings; (3) the ALJ erred in assessing her credibility; (4) the ALJ erred in
assessing the opinions of her physicians; (5) the ALJ erred in assessing her RFC; and (6) the ALJ
erred at Step Five of the Sequential Evaluation Process. (ECF No. 12).3
A.

Development of the Record

In the present case, the combination of medical evidence, State agency physician opinions,
and the Plaintiff’s own testimony were sufficient to assess Plaintiff’s RFC. The Eighth Circuit has
held that 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). The
ALJ’s failure to order such an evaluation only constitutes reversible error when such an evaluation
was necessary for him to make an informed decision. see Gasaway v. Apfel, 187 F.3d 840, 842 (8th
Cir. 1999); Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000). An ALJ does not necessarily need

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Defendant notes Plaintiff’s brief is essentially identical to her prior brief filed on
February 4, 2015, when this case was previously before this Court. (ECF No. 13, pp. 1-2); see
Doc. 8. Plaintiff’s Appeal Brief, 2:14-cv-02226-PKH-BAB). I concur with Defendant, that the
two briefs are identical, but nevertheless examine Plaintiff’s pleadings to the extent Plaintiff’s
arguments generally may be applied to the Commissioner’s February 4, 2016, unfavorable
decision.
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the opinion of a consultative examiner to assess a claimant’s RFC. see Page v. Astrue, 484 F3d.
1040, 1043 (8th Cir. 2007) (the medical evidence, State agency physician opinions, and claimant’s
own testimony were sufficient to assess RFC); Stormo v. Barnhart, 377 F.3d 801, 807-08 (8th Cir.
2004) (medical evidence, State agency physicians’ assessments, and claimant’s reported activities
of daily living supported the RFC).
Plaintiff argues that the ALJ failed to develop the record by not acquiring a Medical Source
Statement or RFC Assessment from Plaintiff’s treating physicians. The medical evidence, State
agency physician opinions, and Plaintiff’s own testimony were sufficient to assess Plaintiff’s RFC.
The ALJ is not required to gather a Medical Source Statement or RFC Assessment from Plaintiff’s
treating physicians to make his own RFC determination. see Page v. Astrue, 484 F.3d 1040, 1043
(8th Cir. 2007) (the medical evidence, State agency physician opinions, and claimant’s own
testimony were sufficient to assess RFC); Stormo v. Barnhart, 377 F.3d 801, 807-08 (8th Cir. 2004)
(medical evidence, State agency physicians’ assessments, and claimant’s reported activities of daily
living supported RFC assessment).
The ALJ discussed the medical evidence from numerous treating physicians and the opinions
of the non-examining State agency consultants, and set forth the reasons for the weight given to the
opinions. Plaintiff, moreover, has not pointed to any relevant evidence to argue that the ALJ would
have reached a different conclusion had another medical professional examined Plaintiff.
Furthermore, Plaintiff has not demonstrated that a failure to consult with another medical
professional resulted in any prejudice above and beyond receipt of an unfavorable decision in her
case. see Haley v. Massanari, 258 F.3d 742, 749-50 (8th Cir. 2001).

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B.

Subjective Complaints and Credibility Analysis

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. § 404.1529.4 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 that 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
4

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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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
Plaintiff disabled within the strict definition of the Act. The issue is not the existence of pain, but
whether the pain Plaintiff experiences precludes the performance of substantial gainful activity. see
Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
The ALJ properly applied these factors articulated in Polaski and gave several good reasons
for finding that Plaintiff’s subjective complaints are not entirely credible. First, the ALJ noted
Plaintiff was frequently non-compliant with prescribed treatment. (ECF No. 8, pp. 1142-143). For
example, he discussed treatment notes from October 25, 2010, and February 8, 2011, where Plaintiff
had stopped taking her medication, and evidence from June 20, 2012, which noted Plaintiff either
failed to show up to or rescheduled her appointments seven times. (ECF No. 8, pp. 1140, 1142);
(ECF No. 9, p. 9). Plaintiff, moreover, continued to smoke against medical advice. (ECF No. 8, pp.
1126, 1142-1143); see Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) (“A failure to
follow a recommended course of treatment . . . weighs against a claimant’s credibility”); Lewis v.
Barnhart, 353 F.3d 642, 647 (8th Cir. 2003) (“Instead, Lewis’s own actions discredit her disability
allegations because she continues to smoke cigarettes daily and does not exercise”). The ALJ also
determined Plaintiff persisted in her polysubstance abuse and that the record contained numerous
examples of drug-seeking behavior. (ECF No. 8, pp. 1142-143); see Anderson v. Shalala, 51 F.3d
777, 780 (8th Cir. 1995) (drug-seeking behavior weighs against a claimant’s allegations of disabling
pain).
The ALJ also examined Plaintiff’s activities of daily living. (ECF No. 8, pp. 1137). He
noted Plaintiff was able to attend to her own personal hygiene and feed and dress herself, care for

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her disabled minor child, leave the house alone, shop in stores, drive a car, manage her finances,
prepare simple meals, perform some household chores, reside with family members, attend church
services, manager her medical appointments, and visit with friends and maintain contact with others.
Id. The ALJ did not entirely discount Plaintiff’s subjective complaints. (ECF No. 8, p. 1141). For
example, despite Plaintiff’s extensive activities of daily living and engagement with others, the ALJ
nevertheless limited Plaintiff’s RFC to interpersonal contact which is incidental to the work
performed and supervision that is simple, direct, and concrete. (ECF No. 8, pp. 1139-144).
I find substantial evidence supports the ALJ’s credibility assessment and because the ALJ
provided multiple valid reasons for discounting Plaintiff’s subjective complaints, I defer to the ALJ’s
credibility determination. see Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007) (this Court
defers to the ALJ’s credibility determination when it is supported by good reasons and substantial
evidence).
C.

Medical Opinions

In the present case, Plaintiff has not pointed to any physician’s opinion to contend whether
the ALJ improperly afforded the opinion greater or lesser weight. Rather, Plaintiff cites treatment
records from individual treating physicians and states, “the diagnoses and treatment regimens of
these doctors offer insight into their opinion.” (ECF No. 12, p. 16). I decline to speculate as to a
physician’s opinion when the physician has not specifically provided one. Any argument Plaintiff
attempts to make with regard to the treatment records from Plaintiff’s treating physicians is discussed
thoroughly below as the evidence relates to Plaintiff’s RFC.
D.

RFC

RFC is the most a person can do despite that person's limitations. 20 C.F.R. §§ 404.1545.

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A disability claimant has the burden of establishing his or her RFC. Vossen v. Astrue, 612 F. 3d
1011, 1016 (8th Cir. 2010). "The ALJ determines a claimant's RFC based on all relevant evidence
in the record, including medical records, observations of treating physicians and others, and the
claimant's own descriptions of his or her limitations." Jones v. Astrue, 619 F.3d 963, 971 (8th Cir.
2010); Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009). Limitations resulting from symptoms
such as pain are also factored into the assessment. 20 C.F.R. §§ 404.1545(a)(3). The United States
Court of Appeals for the Eighth Circuit has held a "claimant's residual functional capacity is a
medical question." Miller v. Colvin, 784 F.3d 472, 479 (8th Cir. 2015) (citing Lauer v. Apfel, 245
F.3d 700, 704 (8th Cir. 2001). Therefore, an ALJ's determination concerning a claimant's RFC must
be supported by medical evidence that addresses the claimant's ability to function in the workplace.
Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012).
Plaintiff contends the ALJ failed to consider all of Plaintiff’s impairments and resulting
limitations in his RFC determination. (ECF No. 12). Specifically, Plaintiff attempts to argue the
ALJ failed to consider Plaintiff’s medications, fatigue, need to alternate sitting and standing, need
to use a cane, her broken ankle and brace, an abnormality in her brain and resulting falls, her GAF
scores, obesity, back pain, knee pain, joint pain, weakness, numbness, pain in her arms and legs,
inability to relate with coworkers, inability to deal with the public, inability to deal with work stress,
inability to concentrate, her attention or appearance, her ability to behave in an emotionally stable
manner or relate predictably in social situations, and her anxiety and depression. Id. Plaintiff,
moreover, also attempts to argue the ALJ failed to consider evidence which fairly detracted from his
findings.
Plaintiff’s argument is without merit. The ALJ’s decision specifically considered her

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depression and anxiety severe impairments. (ECF No. 8, pp. 1135-136). The ALJ accounted for
Plaintiff’s mental impairments in his RFC determination by limiting Plaintiff to simple, routine, and
repetitive tasks in a setting where interpersonal contact is incidental to the work performed and
where supervision is simple, direct, and concrete. (ECF No. 8, pp. 1139-144). Furthermore, the ALJ
determined Plaintiff’s degenerative disc disease and obesity were severe impairments, and limited
Plaintiff’s RFC to work at the sedentary exertion level, further limited by only occasional climbing,
balancing, crawling, kneeling, stooping, and crouching. Id. Plaintiff has offered no evidence to
support her argument that any of the impairments she cites resulted in any further limitations than
those contained in the ALJ’s RFC determination. I note, however, that in formulating Plaintiff’s
RFC, the ALJ fully summarized all of Plaintiff’s medical records and separately discussed each of
her alleged impairments. Based on the ALJ’s synopsis of Plaintiff’s medical records and discussion
of each of her alleged impairments, I conclude that the ALJ properly considered all of Plaintiff’s
impairments individually and in combination, even those which the ALJ determined were nonsevere. see Martise v. Astrue, 641 F.3d 909, 924 (8th Cir. 2011). Based on examination of the
record as a whole, I find substantial evidence supports the ALJ’s RFC determination.
E.

Step Five Analysis

Plaintiff’s argument with regard to the hypothetical questions to the VE are essentially a
disagreement with the ALJ’s RFC determination. After thoroughly reviewing the hearing transcript
along with the entire evidence of record, I find that the hypothetical the ALJ posed to the VE fully
set forth the impairments the ALJ accepted as true and which were supported by the record as a
whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, I find that the VE’s
opinion constitutes substantial evidence supporting the ALJ’s conclusion that Plaintiff’s impairments

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did not preclude her from performing the duties of a compact assembler, semiconductor bonder, or
printed circuit board checker. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996) (testimony from
vocational expert based on properly phrased hypothetical question constitutes substantial evidence).
4.

Conclusion:
Based on the foregoing, the undersigned finds 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 28th day of March 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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