Brophy v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 9, 2014. (jn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JAMES R. BROPHY, JR.
Civil No. 4:13-cv-04062
CAROLYN W. COLVIN
Commissioner, Social Security Administration
James R. Brophy, Jr. (“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
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. 8.1 Pursuant to this authority, the Court issues this memorandum opinion and
orders the entry of a final judgment in this matter.
Plaintiff protectively filed his disability applications on September 22, 2009 (DIB) and
September 28, 2009 (SSI). (Tr. 14). In these applications, Plaintiff alleges being disabled due to
a broken back. (Tr. 194). Plaintiff alleges an onset date of July 24, 2009. (Tr. 14). These
applications were denied initially and again upon reconsideration. (Tr. 86-89). Thereafter, Plaintiff
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.”
requested an administrative hearing on his applications, and this hearing request was granted. (Tr.
71-85, 102-103). Plaintiff’s initial administrative hearing was held on January 3, 2011. Id. During
this hearing, the ALJ noted that further record development was necessary. Id. Accordingly, the
ALJ ordered additional testing and then held a second administrative hearing. Id.
On November 15, 2011, the second administrative hearing was held in Texarkana, Arkansas.
(Tr. 26-70). Plaintiff was present at this hearing and was represented by Darrell Brown. Id.
Plaintiff, Medical Expert (“ME”) Charles Murphy, Psychology Expert (“PE”) Albert Smith, and
Vocational Expert (“VE”) Judy Komerov testified at this hearing. Id. At this hearing, Plaintiff
testified he was forty-seven (47) years old, which is defined as a “younger person” under 20 C.F.R.
§ 416.963(c) (2008) (SSI) and 20 C.F.R. § 404.1563(c) (2008) (DIB). (Tr. 45). Plaintiff also
testified he had obtained his GED. (Tr. 46).
After the hearing, on January 11, 2012, the ALJ entered an unfavorable decision denying
Plaintiff’s applications for DIB and SSI. (Tr. 11-22). In this decision, the ALJ found Plaintiff met
the insured status requirements of the Act through December 31, 2013. (Tr. 16, Finding 1). The
ALJ found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since July 24, 2009,
his alleged onset date. (Tr. 16, Finding 2). The ALJ determined Plaintiff had the following severe
impairment: status post motor vehicle accident with residual thoracic surgery with Harrington rod
fixation. (Tr. 16-18, Finding 3). Despite the severity of this impairment, the ALJ also determined
it did not meet or medically equal the requirements of any of the Listings of Impairments in
Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 18, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 18-21, 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 following RFC:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a) except with the following limitations: no
ladders, ropes, or scaffolds; perform all other postural activities occasionally;
occasionally push and pull; and, no exposure to vibration.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff had no PRW.
(Tr. 21, Finding 6). The ALJ then considered whether Plaintiff retained the capacity to perform other
work existing in significant numbers in the national economy. (Tr. 21-22, Finding 10). The VE
testified at the administrative hearing regarding this issue. Id. Based upon that testimony, the ALJ
found Plaintiff retained the capacity to perform the following occupations: (1) lens inserter
(sedentary, unskilled) with 100,000 such jobs in the nation and 3,000 such jobs in the state; (2)
semiconductor bonder (sedentary, unskilled) with 24,000 such jobs in the nation and 1,100 such jobs
in the state; and (3) surveillance systems monitor (sedentary, unskilled) with 79,000 such jobs in the
nation and 1,500 such jobs in the state. Id. Because he retained the capacity to perform this other
work, the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from July
24, 2009 through the date of his decision or through January 11, 2012. (Tr. 22, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 8). On February 8, 2013, the Appeals Council denied this request for review. (Tr.
3-5). On June 6, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on June 25, 2013. ECF No. 8. Both Parties have filed appeal briefs. ECF
Nos. 11, 13. This case is now ready for decision.
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)
(2010); 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 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).
In his appeal brief, Plaintiff claims the following: (A) the ALJ erred by finding his
impairment did not meet the requirements of any of the Listings; (B) the ALJ erred in discrediting
his subjective complaints of pain; (C) the ALJ erred in discrediting the RFC assessment of Dr.
Bernard Crowell, M.D.; and (D) the ALJ erred by failing to present a hypothetical to the VE which
included all of his limitations. ECF No. 11. The Court will address all the arguments Plaintiff has
Evaluation of the Listings
Plaintiff claims the ALJ erred in finding his impairment did not meet the requirements of
Listing 1.00(B)(2)(b). ECF No. 11 at 11-14. In response to this argument, Defendant disagrees and
argues substantial evidence supports the ALJ’s finding that Plaintiff’s impairment did not meet the
requirements of any of the Listings. ECF No. 13.
Upon review, the Court finds Plaintiff has provided no basis for reversal on this issue. As
an initial matter, Listing 1.00(B)(2)(b) is an introductory section and is not a separate one of the
Listings. Thus, Plaintiff cannot be found to be disabled under Listing 1.00(B)(2)(b).
Presumably, Plaintiff intended to refer to Listing 1.04C, which was explicitly discussed in
the ALJ’s decision. (Tr. 18). Under Listing 1.04C, Plaintiff has the burden of demonstrating he has
an “inability to ambulate effectively.” Here, Plaintiff has made no demonstration–and has not even
attempted to argue–that he is unable to ambulate effectively. Accordingly, the Court finds Plaintiff
has not demonstrated his impairment meets the requirements of any of the Listings, including Listing
1.04C. See McCoy v. Astrue, 648 F.3d 605, 611-12 (8th Cir. 2011) (to qualify for disability under
a listing, the claimant has the burden of establishing his or her condition meets or equals all specified
Plaintiff’s Subjective Complaints
Plaintiff claims the ALJ erred in assessing his subjective complaints. ECF No. 11 at 14-16.
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
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.
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 subjective complaints “solely because the objective
medical evidence does not fully support them [the subjective complaints].” Polaski, 739 F.2d at
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 complied with the requirements of Polaski. (Tr. 19-21).
Indeed, in his opinion, the ALJ outlined the Polaski factors and then discounted Plaintiff’s subjective
complaints based primarily upon his daily activities: “Despite these [Plaintiff’s] allegations, the
claimant cares for pets, attends to all his personal care needs, prepares meals, drives, shops, pays
bills, counts change, uses a checkbook, handles a savings account, reads, watches television, and
spends time with others. . . . The claimant has described daily activities that are not limited to the
extent one would expect, given the complaints of disabling symptoms and limitations, which
weakens the credibility of his allegations.” (Tr. 19).
Because the ALJ considered the Polaski factors and then provided this valid reason for
discounting Plaintiff’s subjective complaints, the Court finds no basis for reversal on this issue. See
McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011) (holding where the ALJ explicitly discredits a
claimant and gives good reasons for doing so, the court normally defers to the ALJ’s credibility
findings). See also Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005) (recognizing the ALJ need
not explicitly discuss every Polaski factor in his or her opinion prior to discounting a clamant’s
Plaintiff’s Medical Evidence
Plaintiff claims the ALJ erred in disregarding the findings of Dr. Bernard Crowell, M.D.
ECF No. 11 at 16-18. In making this argument, Plaintiff claims Dr. Crowell is entitled to “special
deference” because he was Plaintiff’s treating physician. Id. Upon review, the Court finds Plaintiff
is mistaken in his argument. Indeed, Dr. Crowell was only a one-time examining physician and not
a treating physician. (Tr. 587-594). Thus, his opinions are not entitled to any “special deference,”
and the ALJ did not err in disregarding his findings. See 20 C.F.R. § 404.1527(c) (recognizing only
the findings of treating physician are generally entitled to “controlling weight”).
Hypothetical to the VE
Plaintiff claims the ALJ’s disability determination is not supported by substantial evidence
in the record because the ALJ gave a defective hypothetical to the VE. ECF No. 11 at 19-20.
Plaintiff claims this hypothetical was defective because Dr. Crowell’s findings were not included
as a part of the ALJ’s hypothetical to the VE. Id.
In a hypothetical to the VE, an ALJ need only include those limitations that he or she finds
to be credible. See Buckner v. Astrue, 646 F.3d 549, 560-61 (8th Cir. 2011) (holding the VE’s
testimony constitutes substantial evidence when it is based on a hypothetical question that accounts
for all of the claimant’s proven impairments). Here, as noted above, the ALJ properly disregarded
Dr. Crowell’s findings and found they were not credible. As such, he was not required to incorporate
Dr. Crowell’s findings as a part of his hypothetical to the VE. Thus, the Court finds no basis for
reversal on this issue.
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 9th day of July 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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