Freeman v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 22, 2011. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JANET L. FREEMAN
vs.

PLAINTIFF
Civil No. 4:10-cv-04100

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Janet L. Freeman (“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. 5.1
Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final
judgment in this matter.
1. Background:
Plaintiff filed her disability applications on January 17, 2008. (Tr. 10, 92-99). In her
applications, Plaintiff alleged she was disabled due to the following: sleep apnea, diabetes,
depression, excess fluid, chronic obstructive pulmonary disease (“COPD”), high cholesterol,

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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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restlessness when sleeping, allergies, acid reflux, a thyroid condition, and an oxygen deficiency. (Tr.
109). Plaintiff alleged an onset date of November 1, 2007. (Tr. 92, 95). These applications were
denied initially and again on reconsideration. (Tr. 47-50).
Thereafter, Plaintiff requested an administrative hearing on her applications, and this hearing
request was granted. (Tr. 24-46, 66-88). An administrative hearing was held on August 11, 2009 in
Texarkana, Arkansas. (Tr. 24-46). Plaintiff was present and was represented by counsel, Greg Giles,
at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Dwight Turner testified at this hearing.
Id. On the date of this hearing, Plaintiff was forty-seven (47) years old, which is defined as a
“younger person” under 20 C.F.R. § 404.1563(c) (2008), and had obtained her GED. (Tr. 28).
On October 9, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s disability
applications. (Tr. 10-21). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 30, 2009. (Tr. 12, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since her alleged onset date of
November 1, 2007. (Tr. 12, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: COPD, status post bilateral mastectomies, sleep apnea, hypertension, diabetes mellitus,
and obesity. (Tr. 12-15, Finding 3). The ALJ, however, also determined Plaintiff did not have an
impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1,
Subpart P, Regulations No. 4 (“Listings”). (Tr. 16, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 16-19). First, the ALJ evaluated Plaintiff’s subjective complaints and found her claimed
limitations were not entirely credible. Id. Second, the ALJ determined, based upon his review of
Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record, that Plaintiff
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retained the RFC 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 or light work as defined in
20 CFR 404.1567(a) and 416.967(a) with lifting and carrying 20 pounds occasionally
and 10 pounds frequently, occasional bending, stooping, crouching, crawling, and
kneeling, no climbing of ladders, ropes or scaffolds, no working around hazardous
machinery or at heights, no dangerous balancing, no exposure to heavy amounts of
dust, dirt, molds or chemicals, etc., and is limited to simple and detailed, but not
complex job tasks, with reasonable contact with others.
(Tr. 16-17).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”), and the VE testified at the
administrative hearing regarding this issue. (Tr. 19). Based upon that testimony, the ALJ determined
Plaintiff’s PRW included work as a truck driver (medium, semiskilled). Id. After reviewing her
RFC, the ALJ determined Plaintiff would be unable to perform this PRW. Id.
The ALJ then determined whether Plaintiff would be able to perform other work existing in
significant numbers in the national economy, considering her age, education, RFC, and work
experience. (Tr. 19-20, Finding 10). The ALJ based this determination upon the testimony of the VE.
Id. Specifically, the VE testified that a hypothetical individual with Plaintiff’s limitations retained
the capacity to perform representative occupations such as (1) an assembler with 40,000 such jobs
in the region and 240,000 such jobs in the nation; (2) inspecting table worker with 15,000 such jobs
in the region and 200,000 such jobs in the nation; and (3) surveillance systems monitor with 3,000
such jobs in the region and 500,000 such jobs in the nation. (Tr. 20). The ALJ then determined
Plaintiff had not been under a disability, as defined by the Act, from November 1, 2007 through the
date of his decision or through October 9, 2009. (Tr. 20, Finding 11).
Thereafter, on October 26, 2009, Plaintiff requested that the Appeals Council review the

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ALJ’s unfavorable decision. (Tr. 6). See 20 C.F.R. § 404.968. On June 30, 2010, the Appeals
Council declined to review the ALJ’s unfavorable disability determination. (Tr. 1-3). On July 14,
2010, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this
Court on July 20, 2010. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 8-9. 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 a
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“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 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:
In her appeal brief, Plaintiff argues her case must be reversed and remanded and raises the
following four points on appeal: (A) the ALJ erred by finding her impairments did not meet the
requirements of the respiratory system impairment listing; (B) the ALJ improperly evaluated her RFC;
(C) the ALJ improperly evaluated her subjective complaints; and (D) the ALJ erred in his Step Five
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determination. ECF No. 14 at 9-20. In response, Defendant argues that the ALJ’s disability
determination is supported by substantial evidence in the record, and Plaintiff’s claims offer no basis
for reversal. This Court will address all four of Plaintiff’s arguments for reversal.
A.

Evaluation of the Listings

Plaintiff claims the ALJ erred by finding her breathing problems did not satisfy the
requirements of the respiratory system impairment listing. ECF No. 8 at 12-15. In making this
argument, however, Plaintiff only makes the broad claim that her impairment meets the requirements
of this listing. Id. She has not referenced any specific medical evidence supporting her claim that
her breathing impairment meets the requirements of this listing. Id. Indeed, the only evidence
Plaintiff provides in support of her claim that she meets this listing is from “the first consultative
physician.” Id. Plaintiff, however, does not specify what findings were made regarding her
respiratory function or whether those findings directed the conclusion that she meets the requirements
of this listing.2 Id.
Plaintiff has the burden of establishing her breathing impairment meets the requirements of
this listing. See Carlson v. Astrue, 604 F.3d 589, 593 (8th Cir. 2010) (citation omitted). Because
Plaintiff has clearly not met this burden, this Court will not address Plaintiff’s claim regarding this
listing any further. See Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (rejecting “out
of hand” the claimant’s “conclusory assertion that the ALJ failed to consider” whether his
impairments met the requirements of the listings because the claimant provided “no analysis of the
relevant law or facts” regarding those listings).

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Indeed, it appears the medical records Plaintiff is referring to by “the first consultative physician” are from
Ann Green, Ph.D., FNP. (Tr. 419-420). Ms. Green, however, only found Plaintiff could not perform her PRW as a
truck driver due to her impairments. Id. Such a finding in consistent with the ALJ’s disability determination in this
case that Plaintiff could not perform her PRW .

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B.

RFC Determination

Plaintiff makes several claims regarding the ALJ’s RFC determination. ECF No. 8. Plaintiff
first claims the ALJ erred by not accounting for her need to use an electronic nebulizer and oxygen
while at work. Id. at 13. However, while Plaintiff testified at the administrative hearing that she
needed to use this nebulizer and oxygen during the workday, Plaintiff has offered no specific medical
evidence to support that claim. Thus, this Court has no direction as to which medical records Plaintiff
may use to support her claims.
However, this Court has independently reviewed the record in this case and for two reasons,
finds the ALJ properly determined Plaintiff did not require the use of either the nebulizer or oxygen
during the workday. First, this Court finds none of Plaintiff’s medical records establish Plaintiff must
use the home nebulizer and oxygen throughout the workday. Indeed, based upon her medical records,
it appears she might need nebulizer treatments during the day if she resumed her past work as a truck
driver. (Tr. 247). These records, however, also indicate that these treatments would only be
temporary, and she would only need nebulizer treatments because of her recent weight gain. Id.
Additionally, it does not appear that any of her medical records reflect she was prescribed oxygen for
use throughout the day.
Second, and more importantly, it appears the nebulizer and oxygen might only be necessary
because Plaintiff refuses to stop smoking. At the administrative hearing in this matter, Plaintiff
testified she was smoking one and one-half packs of cigarettes a day, even though she had been
repeatedly advised to stop smoking by her physician. (Tr. 31, 295, 309). The ALJ considered
Plaintiff’s smoking, and Plaintiff’s failure to follow a prescribed course of treatment, when he
discounted Plaintiff’s claim that she would need nebulizer treatments and oxygen throughout the
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workday due to her alleged impairments. (Tr. 18). Instead, those nebulizer treatments and oxygen
might be only necessary due to Plaintiff’s self-imposed practice of smoking. Because the ALJ
properly evaluated Plaintiff’s claims and considered her smoking, this Court finds the ALJ properly
discounted Plaintiff’s claim that she needed to use a home nebulizer and oxygen during the workday.
See Choate v. Barnhart, 457 F.3d 865, 872 (8th Cir. 2006) (affirming the ALJ’s decision to discount
a claimant’s subjective complaints where the claimant was noncompliant with the treating physician’s
instructions, including the instruction to stop smoking).
Plaintiff’s second claim is that the ALJ failed to consider her alleged respiratory impairments
when assessing her RFC. ECF No. 8 at 19. In assessing her RFC, however, the ALJ did consider
Plaintiff’s respiratory impairments and noted she was limited due to those impairments. (Tr. 16-17).
Specifically, in assessing her RFC, the ALJ found Plaintiff could have “no exposure to heavy amounts
of dust, dirt, molds or chemicals, etc.” Id. Thus, this Court finds the ALJ did consider Plaintiff’s
respiratory impairments, and Plaintiff’s claim that the ALJ did not consider them is without merit.
Plaintiff’s third claim is that the ALJ improperly determined she had no restrictions in her
ability to stand or walk. ECF No. 8 at 18. The ALJ, however, determined Plaintiff retained the RFC
to only perform sedentary or light work. Id. Both sedentary and light work involve restrictions on
walking and standing. Id. See 20 C.F.R. §§ 404.1567(a)-(b), 416.967(a)-(b). Thus, this Court finds
Plaintiff’s claim on this issue is also without merit.
C.

Credibility Determination

Plaintiff claims the ALJ improperly evaluated her subjective complaints of disabling
limitations due to her “emphysema, dyspnea, COPD and use of oxygen and four nebulizers.” ECF
No. 8. In assessing the credibility of a claimant, the ALJ is required to examine and to apply the five
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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. § 416.929.3 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 or
limitation; (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. 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, 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 or limitation 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 or the

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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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limitation, but whether the pain or limitation 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 ALJ fully complied with the requirements of Polaski. Specifically,
the ALJ made the following findings when he discounted Plaintiff’s subjective complaints: (1)
Plaintiff had no limitation in her activities of daily living, and her activities included driving to see
her mother, grocery shopping, paying bills, cleaning, and handling her daily needs; and (2) Plaintiff
failed to follow her physician’s instructions, including his direction to stop smoking and lose weight.4
(Tr.12-20). Accordingly, because the ALJ’s credibility determination was supported by “good
reasons,” it should be affirmed. See Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003) (holding
that “[i]f an ALJ explicitly discredits the claimant’s testimony and gives good reasons for doing so,
we will normally defer to the ALJ’s credibility determination”) (citation omitted).
D.

Step Five Determination

Plaintiff claims the ALJ improperly relied upon the testimony of the VE in finding she was
not disabled. ECF No. 9 at 15-20. Specifically, Plaintiff claims the ALJ’s hypothetical to the VE
failed to specifically set forth all of the claimant’s mental and physical limitations. Id. In his
hypothetical to the VE, the ALJ stated the following:
Q: Okay. Well, we’re not going to be sending this, this–medium work can’t be done.
So, we’re, we’re not going to talk about the past relevant work anymore. We’ll talk
about the other jobs. If I have an individual the claimant’s age, education, and
experience, capable of sedentary or light work. I guess I would prefer sedentary jobs
if at [sic] were possible. Capable of standing six hours in an eight-hour day, lifting
twenty pounds occasionally and ten pounds frequently, limited to occasional bending,

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It appears that, in assessing her credibility, the ALJ also relied upon the fact that Plaintiff quit working as
a truck driver to care for her sick husband and not as the result of an alleged disability. (Tr. 18). Such a fact
indicates she was not disabled. See Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (affirming the
ALJ’s credibility determination which was based partially on the fact that the claimant had stopped working to care
for her grandchildren).

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stooping, crouching, crawling and kneeling. No ladders, scaffolds, ropes, no heights,
no hazards. No heavy amounts of dirt, dust, mold, chemicals, things of that nature,
no, not none whatsoever, but no heavy amounts of dirt, dust, mold and chemicals. No
dangerous balancing, and obviously if you’re just walking, there’s balancing, but I’m
looking to eliminate those situations where there’s particular danger if balance were
to be lost. Simple jobs are acceptable, detailed jobs are acceptable, complex jobs are
not acceptable, reasonable contact with others, meaning he can get along with coworkers and supervisors, but we don’t want a job where the job would primarily be
interaction with other people.
(Tr. 42-43).
This hypothetical included all the limitations from the ALJ’s RFC determination. (Tr. 16-17,
Finding 5). As outlined above, this Court finds the ALJ’s RFC determination is supported by
substantial evidence in the record. Because the ALJ included all the limitations in this hypothetical
that he found credible and which were supported by the evidence in the record, this Court finds the
ALJ did not err by relying on the VE’s response to this hypothetical question. See Gragg v. Astrue,
615 F.3d 932, 941 (8th Cir. 2010) (affirming the ALJ’s disability determination where the ALJ
included in his hypothetical to the VE all the limitations he found credible).
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 22nd day of July, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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