Chandler v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 29, 2011. (mfr)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
DAVID W. CHANDLER
vs.

PLAINTIFF
Civil No. 4:10-cv-04107

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
David Chandler (“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 his application for
Disability Insurance Benefits (“DIB”) and a period of disability under Title II 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 postjudgment proceedings. ECF No. 4.1 Pursuant to this authority, the Court issues this memorandum
opinion and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff protectively filed an application for DIB on January 17, 2008. (Tr. 10, 78-80).
Plaintiff alleged he was disabled due to ruptured discs in his back. (Tr. 100). Plaintiff alleged an
onset date of October 30, 2007. (Tr. 100). This application was denied initially and again upon
reconsideration. (Tr. 44-46, 51-52). Thereafter, Plaintiff requested an administrative hearing on his
application, and this hearing request was granted. (Tr. 53-54).

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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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Plaintiff’s administrative hearing was held on May 6, 2009, via video conference in Little
Rock, Arkansas and Texarkana, Arkansas. (Tr. 18-41). Plaintiff was present and was represented
by counsel, Jim Wyly, at this hearing. Id. Plaintiff and Vocational Expert (“VE”)William Elmore,
testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-five (45) years old, which
is defined as a “younger person” under 20 C.F.R. § 404.1563(c), and had a high school education.
(Tr. 21, 23).
On August 6, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 10-17). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2012. (Tr. 12, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since October 30, 2007, his
alleged onset date. (Tr. 12, Finding 2).
The ALJ determined Plaintiff had the severe impairment of recurrent herniated nucleus
pulposus of the lumbar spine. (Tr. 12, Finding 3). The ALJ also 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. 12, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 12-15, Finding 5). First, the ALJ 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 the full range of sedentary work. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr.16, Finding 6). The ALJ
determined Plaintiff’s PRW included work as a mixing operator and mill operator in a tire factory.
(Tr. 16). Based upon his RFC, the ALJ determined Plaintiff would be unable to perform this PRW.

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Id.
The ALJ then used Medical-Vocational Guidelines Rule 201.28 to reach a conclusion of “not
disabled,” based on Plaintiff’s age, education, vocational background, and residual functional
capacity. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.27. (Tr. 16, Finding 10). The ALJ then
determined Plaintiff had not been under a “disability,” as defined by the Act, at any time through the
date of his decision. (Tr. 16, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 4-6). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On July 21, 2010, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on July 23, 2010. ECF No. 4. Both Parties have filed
appeal briefs. ECF Nos. 7-8. 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

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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
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
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analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3. Discussion:
In his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 7 at 1-6. Specifically, Plaintiff claims the ALJ erred
(1) by failing to find Plaintiff’s impairments met or equaled a Listing, (2) in evaluating his RFC, and
(3) in evaluating his subjective complaints. In response, the Defendant argues the ALJ did not err
in any of his findings. ECF No. 8.
A. Listings
The ALJ must determine whether Plaintiff has a severe impairment that significantly limits
the physical or mental ability to perform basic work activities. A medically determinable impairment
or combination of impairments is severe if it significantly limits an individual’s physical or mental
ability to do basic work activities. See 20 C.F.R. §§ 404.1521 and 416.921.
The ALJ found Plaintiff did suffer from impairments considered to be severe within the
meaning of the Social Security regulations. These impairments included recurrent herniated nucleus
pulposus of the lumbar spine. (Tr. 12, Finding 3). However, there was no substantial evidence in
the record showing Plaintiff’s condition was severe enough to meet or equal that of a listed
impairment as set forth in the Listing of Impairments. See 20 C.F.R. pt. 404, subpt. P, app.1.
Plaintiff has the burden of establishing that his impairment(s) meet or equal an impairment set out
in the Listing of Impairments. See Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990). Plaintiff has
not met this burden.
Plaintiff initially alleges he has a listed impairment and sets forth several diagnoses that
appear throughout the record. ECF No. 7, pgs. 3-4. A diagnosis of an impairment is not disabling
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per se. There must be a functional loss establishing an inability to engage in substantial gainful
activity before a disability occurs. See Trenary v. Brown, 898 F.2d 1361,1364 (8th Cir. 1990).
In fact, Plaintiff fails to allege a specific Listing that his condition meets. The Eight Circuit
in Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005), rejected a claimant’s “conclusory
assertion” that ALJ failed to consider whether the claimant met listings 12.02 or 12.05C because the
claimant provided no analysis of the relevant law or facts regarding these listings. In this matter,
Plaintiff has failed to show that he meets or equals a listed impairment and he has failed to satisfy
his burden of proof.
I find substantial evidence supports the ALJ’s determination that Plaintiff did not have an
impairment or combination of impairments equal to one listed in 20 C.F.R. pt. 404, subpt. P, app.1.
B. RFC
Plaintiff claims substantial evidence does not support the ALJ’s RFC determination that he
can perform the full range of sedentary work. Defendant argues the ALJ properly determined the
Plaintiff’s 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
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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).
On March 22, 2002, Plaintiff underwent an L4-5 hemilaminectomy. (Tr. 141, 244). The
record evidence shows this surgery was successful in alleviating Plaintiff’s symptoms for several
years. (Tr. 244). Plaintiff re-injured his back, and sustained another disc herniation at L4-5 on the
left.

(Tr. 140).

On October 31, 2007, Plaintiff underwent a left L4-5 hemilaminectomy,

foramintomy, and diskectomy, with removal of a large recurrent disk. (Tr. 167, 220-221). Dr.
Freddie L. Contreras discharged Plaintiff in stable condition and instructed Plaintiff to lift no more
than ten pounds, and not to engage in any bending, stooping, or twisting. (Tr. 168).
On November 26, 2007 Plaintiff returned to see Dr. Contreras. (Tr. 244). At that time
Plaintiff was not having any pain and not taking any pain medications. (Tr. 244). Dr. Contreras
indicated Plaintiff would no longer be able to work lifting heavy tires at the plant, but encouraged
Plaintiff to engage in a walking program. (Tr. 244). Dr. Contreras instructed Plaintiff to slightly
increase his activities, and to keep his lifting between ten and fifteen pounds. (Tr. 244).
Plaintiff returned to Dr. Contreras’ office on February 4, 2008 and stated he had been walking
a mile and a half every day, except for when it was cold outside. (Tr. 240). Plaintiff also indicated
that he was contemplating work. (Tr. 240). On April 3, 2008 Plaintiff told Sherry Missildine, R.N.,
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(a nurse in the office of Dr. Contreras) that there was a lighter job available at the tire plant doing
some clipboard work and washing the forklifts that he was going to apply for. (Tr. 271). Ms.
Missildine gave Plaintiff her approval to apply for the job, and noted that it was “just tire building”
that Plaintiff was incapable of performing. (Tr. 271).
Additional support of Plaintiff’s RFC is found in the Physical RFC Assessment performed
by Dr. Alice M. Davidson on April 14, 2008. (Tr. 276-283). Dr. Davidson stated Plaintiff was
capable of performing at least light work. (Tr. 277). This is greater work activity than that the ALJ
determined that Plaintiff could perform which was the full range of sedentary work. (Tr. 16, Finding
No. 10).
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.
C. Credibility Determination
Plaintiff claims the ALJ erred in evaluating his subjective complaints. 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

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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 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.
See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
Plaintiff argues the ALJ erred in failing to properly apply the five factors from Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984). 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 and stated
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inconsistencies between Plaintiff’s testimony and the record. (Tr. 14-15). 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 are not that limited, (3) No physician
has placed a level of limitation as described by Plaintiff, (4) Plaintiff received no aggressive medical
treatment following his surgical intervention, and (5) Plaintiff did not use extensive pain medication
after initial recovery. (Tr. 14-15).
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’s
subjective complaints of pain.
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 29th day of July, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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