Dennis v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on June 3, 2014. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
BETTY DENNIS
vs.

PLAINTIFF
Civil No. 4:13-cv-04041

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Betty Dennis (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), 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. 7.1 Pursuant to this authority, the Court issues this memorandum opinion
and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff’s application for SSI was filed on May 10, 2010. (Tr. 12, 111-115). Plaintiff
alleged she was disabled due to learning disability, seizures, and depression. (Tr. 129). Plaintiff
alleged an onset date of March 12, 2008. (Tr. 129). This application was denied initially and again
upon reconsideration. (Tr. 12). Thereafter, Plaintiff requested an administrative hearing on her
application and this hearing request was granted. (Tr. 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 February 1, 2012. (Tr. 26-42). Plaintiff was
present and was represented by counsel, Stephanie Wallace, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Phunda Pennington Yarbrough testified at this hearing. Id. At the time
of this hearing, Plaintiff was nineteen (19) years old, which is defined as a “younger person” under
20 C.F.R. § 404.1563(c), and had a high school education and CNA degree. (Tr. 30).
On February 22, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s
application for SSI. (Tr. 12-20). In this decision, the ALJ determined Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since May 10, 2010. (Tr. 14, Finding 1). The ALJ also
determined Plaintiff had the severe impairments of bipolar disorder, depression, borderline
intelligence, and post-traumatic stress disorder. (Tr. 14, Finding 3). The ALJ then 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. 14, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 16-19). First, the ALJ indicated he 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 the full range of work at all exertional levels, but with nonexertional limitations
that included she could apply commonsense understanding to carry out detailed but uninvolved
written or oral instructions; could deal with problems involving a few concrete variables in or from
standardized situations; and should avoid unprotected heights, operation of motor vehicles, and
dangerous moving machinery. (Tr. 16, Finding 4).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 19, Finding 5). The ALJ
found Plaintiff unable to perform her PRW as a nurse’s assistant. Id. The ALJ, however, also

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determined there was other work existing in significant numbers in the national economy Plaintiff
could perform. (Tr. 19-20, Finding 9). The VE testified at the administrative hearing regarding this
issue. (Tr. 38-42). Based upon that testimony, the ALJ determined Plaintiff retained the ability to
perform other work such as a marker with 13,496 such jobs in Arkansas and 1,056,734 such jobs in
the nation, and housekeeping with 3,805 such jobs in Arkansas and 414,960 such jobs in the nation.
(Tr. 20). Given this, the ALJ determined Plaintiff had not been under a disability as defined in the
Act since May 10, 2010. (Tr. 20, Finding 10).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 8). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-3).
On April 16, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on April 17, 2013. ECF No. 7. Both Parties have filed appeal briefs. ECF
Nos. 12, 13. 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

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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
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

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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:
Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to find Plaintiff met
a Listing, (B) in determining the Plaintiff’s RFC, and (C) in assessing Plaintiff’s credibility. ECF
No. 12, Pgs. 12-18. In response, the Defendant argues the ALJ did not err in any of her findings.
ECF No. 13.
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 bipolar disorder,

depression, borderline intelligence, and post-traumatic stress disorder. (Tr. 14, Finding 2).
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 her 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 argues she meets a Listing under Section 12.05C for mental retardation. ECF No.
12, Pgs. 12-14. Defendant argues Plaintiff has failed to establish she meets this Listing. ECF No.

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12, Pgs. 5-10.
An impairment found under Listing 12.05C for mental retardation requires a showing of:
12.05 Mental Retardation: Mental retardation refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity is met when the requirements of C are
satisfied.
C. A valid verbal, performance, or full scale IQ of 60 through 70, and
a physical or other mental impairment imposing an additional and
significant work-related limitation of function.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C.
In this matter, Plaintiff has failed to establish she suffers from mental retardation. To begin
with, Plaintiff had been diagnosed with borderline intellectual functioning, and not mental
retardation. (Tr. 197, 217, 376-377, 630). Also, substantial evidence indicates Plaintiff did not have
the requisite IQ scores of 60 to 70. Intelligence testing in 2002 revealed a verbal IQ of 81, a
performance IQ of 74, and a full scale IQ of 76. (Tr. 197). Intelligence testing in 2004 also showed
a verbal IQ of 81, a performance IQ of 74, and a full scale IQ of 81. (Tr. 630). Further, although
testing in 2009 found a full scale IQ of 67 (Tr. 216), Dr. Charles Spellmann, who performed the
testing, did not believe Plaintiff was mentally retarded. (Tr. 217). Dr. Spellmann indicated Plaintiff
handled herself well in conversation, was insightful and he assessed Plaintiff’s intellectual ability
as at least within the borderline range and possibly higher. Id.
Additionally, on July 12, 2010, Dr. Christal Janssen, completed a Psychiatric Review
Technique form and found Plaintiff did not meet or equal a mental listing, including Listing 12.05C.
(Tr. 394-407). Dr. Janssen assessed Plaintiff as having mild limitations in activities of daily living;
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moderate limitations in social functioning; moderate limitations in concentration, persistence, or
pace; and no episodes of decompensation of extended duration. (Tr. 404).
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.§
12.05C.
B.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
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).
In this matter, the ALJ determined Plaintiff retained the RFC to perform the full range of
work at all exertional levels, but with nonexertional limitations that included Plaintiff could apply
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commonsense understanding to carry out detailed but uninvolved written or oral instructions; could
deal with problems involving a few concrete variables in or from standardized situations; and should
avoid unprotected heights, operation of motor vehicles, and dangerous moving machinery. (Tr. 16,
Finding 4). Plaintiff argues the ALJ erred in this RFC determination and it is not supported by
substantial evidence ECF No. 12, Pgs. 14-16. However, substantial evidence does support the
ALJ’s RFC determination.
The medical evidence supports the ALJ’s RFC determination. To begin with, two mental
evaluations support the ALJ’s mental RFC finding as discussed in her opinion. (Tr. 17-19). On
January 13, 2009, Dr. Charles Spellmann evaluated Plaintiff. (Tr. 215-217). Dr. Spellmann
indicated Plaintiff handled herself well in conversation, was insightful, and her intellectual ability
was as at least within the borderline range and possibly higher. (Tr. 217). He assessed Plaintiff as
having all of the basic skills for adaptive functioning; could perform most of her activities of daily
living autonomously; could communicate and interact in a socially adequate manner; could
communicate in an effective and intelligible manner; displayed good persistence; could cope with
the cognitive demands of many work like tasks; could complete many tasks within an acceptable
time frame; and could sustain concentration with medication. Id.
On June 15, 2010, Plaintiff was evaluated by Dr. Dennis Vowell. (Tr. 374-378). Dr. Vowell
stated Plaintiff’s social interaction and communication skills were adequate; she sustained a
reasonable degree of cognitive efficiency; her persistence was adequate; she was able to perform
tasks within an acceptable time frame; and she exhibited only mild difficulty sustaining
concentration and attention. (Tr. 377).

Plaintiff also received therapy and medication treatment at Mid-South Health Systems from
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June 2011 through November 2011. (Tr. 471-483, 519-522). Plaintiff was ordered for a mental
health evaluation related to her divorce and child custody proceeding. (Tr. 478-479, 482). The
mental status examination showed Plaintiff to be depressed with a flat affect, but she was
cooperative; there was no evidence of a thought disorder; she denied hallucinations; her speech was
clear; and she was of average intelligence. (Tr. 481). Additional notes indicate Plaintiff had been
studying for a driver’s test so she could get her license, returned to high school and graduated in May
2011. (Tr. 472, 475, 478-479). In September 2011, counseling notes show Plaintiff was taking
CNA classes, helping care for her terminally ill grandfather, and doing well overall. (Tr. 521).
Finally at the February 1, 2012 hearing, Plaintiff testified she was working 20 to 40 hours a week
as a nurse’s aide, had custody of her chid and was living on her own. (Tr. 31-32, 34).
As shown by the above medical evidence, substantial evidence supports the ALJ’s RFC
determination finding Plaintiff capable of performing the full range of work at all exertional levels
with certain nonexertional limits. Plaintiff has the burden of establishing her 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 her 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. ALJ’s Credibility Determination
Plaintiff also claims the ALJ erred in her credibility determination. ECF No. 12, Pages 1516. In response, Defendant argues that the ALJ properly evaluated and discredited Plaintiff’s
subjective complaints pursuant to the directives of Polaski. ECF No. 13, Pages 18-20.
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
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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 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).
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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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Plaintiff argues the ALJ erred in assessing her credibility and did not fully consider her
subjective complaints as required by Polaski. 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 her opinion, the ALJ addressed the factors from Polaski and 20 C.F.R. §
416.929, and stated inconsistencies between Plaintiff’s testimony and the record. (Tr. 16-18).
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 limited
to any serious degree, (3) No physician has placed a level of limitation on Plaintiff’s activities
comparable to those described by Plaintiff, (4) Plaintiff responded well and her condition improved
with medication, and (5) Plaintiff testified that since filing her application, she had graduated from
high school, attended CNA classes and started working as a nurses’s aid. Id.
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 3rd day of June 2014.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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