Emrick v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 15, 2012. (cap)

N THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
RENEE LYNN EMRICK
vs.

PLAINTIFF
Civil No. 4:11-cv-04046

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Renee Lynn Emrick (“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 application
for Supplemental Security Income (“SSI”) under Title 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 protectively filed her SSI application on August 27, 2007. (Tr. 14, 78-80). In her

application, Plaintiff alleged she was disabled due to COPD, diabetes, and heart problems. (Tr. 116).
Plaintiff alleged an onset date of March 19, 2003. (Tr. 14, 78). This application was denied initially
and again on reconsideration. (Tr. 46-47).

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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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Thereafter, Plaintiff requested an administrative hearing on her application, and this hearing
request was granted. (Tr. 24-45, 55-72). An administrative hearing was held on March 17, 2009 in
Hot Springs, Arkansas. (Tr. 24-45). At the administrative hearing, Plaintiff was present and was
represented by Terry Diggs. Id. Plaintiff and Vocational Expert (“VE”) Beth Clem 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. § 416.963(c) (SSI), and had completed high school. (Tr. 31).
On August 12, 2009, subsequent to this hearing, the ALJ entered an unfavorable decision on
Plaintiff’s application. (Tr. 14-23). In this decision, the ALJ determined Plaintiff had not engaged
in Substantial Gainful Activity (“SGA”) since August 27, 2007, her application date. (Tr. 16, Finding
1). The ALJ determined Plaintiff had the following severe impairments: diabetes mellitus, type II;
coronary artery disease, status post remote myocardial infarction; hip pain; and a history of chronic
obstructive pulmonary disease. (Tr. 16-17, Finding 2). The ALJ also determined, however, Plaintiff
did not have an impairment or combination of impairments that met or medically equaled one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 17-18, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 18-23, Finding 4). First, the ALJ found Plaintiff’s subjective allegations were not supported by
the overall evidence and were not fully credible. Id. Second, the ALJ found Plaintiff 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 the full range of light work as defined
in 20 CFR 416.967(b).
Id. The “full range of light work” includes the following:
(b) Light work. Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
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weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing
and pulling of arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do substantially all of these
activities. If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
20 C.F.R. § 416.967(b).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 23, Finding 5). The VE
testified at the administrative hearing on this issue. (Tr. 43-44). Specifically, the VE testified
Plaintiff’s PRW included work as a school aide (semi-skilled, medium) and as an order clerk
(unskilled, light). Id. Based upon that testimony and Plaintiff’s RFC, the ALJ determined Plaintiff
retained the capacity to perform her PRW as an order clerk. (Tr. 23, Finding 5). Because she retained
the capacity to perform her PRW, the ALJ determined Plaintiff had not been under a disability, as
defined by the Act, from August 27, 2007 (her application date) through August 12, 2009 (ALJ’s
decision date). Id.
On September 1, 2009, Plaintiff requested the Appeals Council’s review of the ALJ’s
unfavorable decision. (Tr. 9-10). See 20 C.F.R. § 404.968. On April 27, 2011, the Appeals Council
declined to review this disability determination. (Tr. 6-8). On May 23, 2011, Plaintiff filed the
present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on June 2, 2011.
ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 10-11. 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)

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(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
“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

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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 raises the following three arguments for reversal: (A) the ALJ

erred by failing to properly evaluate her cardiovascular disease; (B) the ALJ erred by finding she
retained the RFC to perform light work; and (C) the ALJ erred by improperly evaluating her
subjective complaints. ECF No. 10 at 1-20. In response, Defendant argues the ALJ properly
evaluated whether Plaintiff’s impairments met the requirements of the Listings, the ALJ properly
determined Plaintiff retained the RFC for light work, and the ALJ properly evaluated the credibility
of Plaintiff’s subjective complaints. ECF No. 11. Because Plaintiff’s second and third arguments
can be grouped together, this Court will only address her first and third arguments for reversal.
A.

Listing Evaluation

Plaintiff claims her heart impairment meets the requirements of Listing 4.02. ECF No. 10 at
10-16. To meet the relevant requirements of this Listing, Plaintiff must demonstrate the following:
(1) “Systolic failure . . . with left ventricular end diastolic dimensions greater than 6.0 cm or ejection

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fraction of 30 percent or less during a period of stability (not during an episode of acute heart failure)”
and (2) “Persistent symptoms of heart failure which very seriously limit the ability to independently
initiate, sustain, or complete activities of daily living in an individual for whom an MC, preferably
one experienced in the care of patients with cardiovascular disease, has concluded that the
performance of an exercise test would present a significant risk to the individual.”
According to Plaintiff’s medical records, she has provided medical documentation indicating
she meets the first requirement of this Listing. On December 20, 2007, she underwent a “nuclear
medicine stress rest left ventricle study.” (Tr. 398). As a result of that study, she was found to have
an “abnormal ejection fraction, 30%.” Id. Thus, this Court presumes Plaintiff has demonstrated she
meets the first requirement of Listing 4.02.
However, to meet all the requirements of Listing 4.02, Plaintiff must also demonstrate the
second part of Listing 4.02: a “very” serious limitation in activities of daily living. Plaintiff has not
demonstrated she meets this second requirement. Indeed, at the administrative hearing in this matter,
she testified she was able to perform nearly all of her household chores and was able to care for her
seventeen-year-old child.2 (Tr. 41-43). These household chores include sweeping, mopping, cooking,
doing laundry, and doing yard work. Id. Further, in her “function report,” she stated she took care
of her dog and cat, had no problem taking care of her personal needs, was able to go outside 2 to 3
times a day, was able to go grocery shopping, and was able to go to church. (Tr. 116-126).
Accordingly, this Court finds Plaintiff has not demonstrated her heart problem “very seriously
limit[s]” her activities of daily living, and Plaintiff has not met her burden of demonstrating her

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Although it would seem a seventeen-year-old child would assist with chores, Plaintiff testified at the
hearing in this matter that her child was a “typical teenager” and did not assist with the household chores. (Tr. 4142).

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impairment meets the requirements of this Listing. See Carlson v. Astrue, 604 F.3d 589, 593 (8th Cir.
2010) (holding the burden is on the claimant to establish his or her impairment meets or equals the
requirements of a listing).
B.

Credibility Determination

Plaintiff claims the ALJ improperly discounted her subjective complaints of disabling pain,
weakness, fatigue, and other limitations. ECF No. 10 at 17-20. 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. § 416.929.3 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; (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 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

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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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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 ALJ performed a full and complete Polaski evaluation. First, the
ALJ recognized the standard he was required to follow and outlined the Polaski factors in his opinion.
(Tr. 18). Second, the ALJ noted several of those factors and found inconsistencies between Plaintiff’s
subjective complaints and the record as a whole. (Tr. 18-23). As further outlined above, the ALJ
considered Plaintiff’s extensive daily activities in discrediting her subjective complaints of disabling
limitations. (Tr. 41-43). The ALJ considered Plaintiff’s poor work history. (Tr. 22). He found such
a poor work history raised a question as to whether her continued unemployment was due to a medical
condition or due to a lack of motivation to work. Id.
The ALJ considered Plaintiff’s poor treatment history. (Tr. 22). The ALJ noted Plaintiff had
never sought or received treatment from a specialist but, instead, had received all her treatment from
a general practitioner.4 Id. The ALJ noted Plaintiff failed to follow-up on recommendations made
by her treating doctors. (Tr. 22). One such recommendation was that she quit smoking. (Tr. 268,

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This was especially significant because Plaintiff alleges having a per se disability due to a heart
impairment (Listing 4.02), and yet, did not continue to seek treatment from a cardiologist. (Tr. 28-29).

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284, 394). The ALJ noted that as early as 2004, doctors had advised her to quit smoking. (Tr. 22).
However, despite her heart and breathing problems, she continued to smoke on a daily basis. (Tr. 22).
Accordingly, because the ALJ’s credibility determination was supported by “good reasons,”
it should be affirmed. See Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990) (holding “questions
of credibility are for the trier of fact in the first instance. If an ALJ explicitly discredits a claimant’s
testimony and gives a good reason for doing so, we will normally defer to that judgment”).
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 15th day of May 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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