Schweder v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 8, 2012. (dmc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JAMES C. SCHWEDER
Civil No. 6:10-cv-06097
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
James Schweder (“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. 5.1 Pursuant to this authority, the Court issues this memorandum
opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed an application for DIB December 3, 2007. (Tr. 10, 99-103).
Plaintiff alleged he was disabled due to depression. (Tr. 122). Plaintiff alleged an onset date of
August 1, 2005. (Tr. 122). This application was denied initially and again upon reconsideration.
(Tr. 59-63). Thereafter, Plaintiff requested an administrative hearing on his application, and this
hearing request was granted. (Tr. 67-68).
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.”
Plaintiff’s administrative hearing was held on November 25, 2009, in Hot Springs, Arkansas.
(Tr. 27-54). Plaintiff was present and was represented by counsel, Shannon Muse Carroll, at this
hearing. Id. Plaintiff, his wife Shirley Schweder, and Vocational Expert (“VE”) David Elmore,
testified at this hearing. Id. At the time of this hearing, Plaintiff was fifty-seven (57) years old,
which is defined as a “person of advanced age” under 20 C.F.R. § 404.1563(e), and had a Bachelors
Degree in Business Marketing. (Tr. 30).
On March 3, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 10-22). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through June 30, 2011. (Tr. 12, Finding 1). The ALJ determined Plaintiff
had not engaged in Substantial Gainful Activity (“SGA”) since August 1, 2005, his alleged onset
date. (Tr. 12, Finding 2).
The ALJ determined Plaintiff had the severe impairments of depression and anxiety. (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. 13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 14-21, 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 RFC to perform full range of work at all exertional levels, but he is restricted to unskilled work
in which he is limited to performing simple, routine, repetitious work with one or two step
instructions; he must be in a supervised, low stress environment which requires few decisions; and
he is limited to occasional interaction with the public, co-workers and supervisors. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 21, Finding 6). The ALJ
determined Plaintiff’s PRW included work as a general manager of a restaurant. (Tr. 21). Based
upon his RFC, the ALJ determined Plaintiff would be unable to perform this PRW. Id.
The ALJ, however, also determined there was other work existing in significant numbers in
the national economy Plaintiff could perform. (Tr. 21-22, Finding 10). The ALJ based his
determination upon the testimony of the VE. Id. Specifically, the VE testified that given all
Plaintiff’s vocational factors, a hypothetical individual would be able to perform the requirements
of a representative occupation such as a landscape laborer with approximately 1,600 such jobs in the
Arkansas and 185,000 such jobs in the nation. Id. Based upon this finding, the ALJ determined
Plaintiff had not been under a disability as defined by the Act from August 1, 2005 through the date
of the ALJ’s decision. (Tr. 22, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 6). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-5). On December 17, 2010, Plaintiff filed his pro se appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on June 15, 2011. ECF No. 5. Both Parties have filed
appeal briefs. ECF Nos. 10, 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
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’s sole claim is that the ALJ erred in reviewing the Cooperative
Disability Investigations Unit report that was prepared on Plaintiff. ECF No. 10 at 3-4. In response,
the Defendant argues the ALJ did not err in any of his findings. ECF No. 13.
As the ALJ discussed in his decision, a hearing officer with Arkansas Disability
Determination Services (DDS) became suspicious Plaintiff may have violated the Act by applying
for disability benefits while he also maintained a flower shop business with his wife. (Tr. 18). As
a result, the DDS hearing officer referred the matter for investigation to the Cooperative Disability
Investigations Unit (“CDI”). (Tr. 295-301). On April 14, 2009, two CDI investigators visited the
flower shop and interviewed both Plaintiff, and his wife, Shirley Schweder. (Tr. 298). On May 7,
2009, CDI completed their investigation report. (Tr. 295-301). There was no finding Plaintiff
misrepresented his financial situation. Id.
Although not argued, this Court will treat Plaintiff’s only point of appeal as an argument that
the ALJ erred in his credibility analysis of Plaintiff by making reference to the CDI report. 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 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.
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.
See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
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
inconsistencies between Plaintiff’s testimony and the record. (Tr. 15-17). 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) Plaintiff
engaged in work activity after the alleged onset date, (4) Plaintiff’s use of medication has been
effective in controlling his symptoms with no side effects, and (5) Plaintiff’s alleged functional
limitations are inconsistent with the objective medical evidence. 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 and his limited reference to the CDI report was not error.
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 8th day of May, 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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