Willmon v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 15, 2013. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

MARY WILLMON
vs.

PLAINTIFF
Civil No. 6:11-cv-06089

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Mary Willmon (“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”) and a period of disability 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 an application for SSI on August 13, 2009. (Tr. 10). Plaintiff
alleged she was disabled due to depression. (Tr. 119). Plaintiff alleged an onset date of July 1, 2006.
(Tr. 119). This application was denied initially and again upon reconsideration. (Tr. 73-80).
Thereafter, Plaintiff requested an administrative hearing on her application, and this hearing request

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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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was granted. (Tr. 86).
Plaintiff’s administrative hearing was held on July 29, 2010, in Hot Springs, AR. (Tr. 53-70).
Plaintiff was present and was represented by counsel, Charles Padgem, at this hearing. Id. Plaintiff,
and Vocational Expert (“VE”) David Elmore, testified at this hearing. Id. At the time of this
hearing, Plaintiff was forty-eight (48) years old, which is defined as a “younger person” under 20
C.F.R. § 404.1563(c), and had an eighth grade education. (Tr. 56).
On October 19, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI. (Tr. 10-18). In this decision, the ALJ determined Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since August 13, 2009. (Tr. 12, Finding 1). The ALJ determined Plaintiff
had the severe impairments of depression and personality disorder. (Tr. 12, Finding 2). 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 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 13-16, Finding 4). First, the ALJ 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 a full range of work at all exertional levels where interpersonal contact was
incidental to the work performed and the tasks were no more complex than those learned and
performed by rote. Id.
The ALJ also evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 16, Finding 5). The
ALJ determined Plaintiff had no PRW. Id. The ALJ determined that although Plaintiff had worked
in the past, her earnings fell below the SGA threshold. Id.

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The ALJ, however, also determined there was other work existing in significant numbers in
the national economy Plaintiff could perform. (Tr. 17, Finding 9). 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 cleaner in a hospital with approximately 3,700 such jobs in Arkansas and
420,000 such jobs in the nation, and work as housekeeper cleaner with approximately 3,600 such
jobs in Arkansas and 400,000 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 13, 2009
through the date of the ALJ’s decision. (Tr. 18, Finding 10).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 4). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On December 19, 2011, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on January 5, 2012. ECF No. 5. 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

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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
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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 claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 7. Specifically, Plaintiff claims the following: (1) the
ALJ erred in by finding Plaintiff could perform work in the national economy (2) the record contains
inadequate evidence and (3) the ALJ improperly discounted her subjective complaints. ECF No. 7,
Pgs. 2-6. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 8.
A. ALJ’s Step 5 Analysis
Plaintiff argues the ALJ erred in finding she could perform work in the national economy.
ECF No. 7, Pg. 3. Plaintiff argues the VE testified she could not perform any work. Id. A review
of the record shows Plaintiff’s argument is without merit.
During the hearing, the ALJ asked a hypothetical question of the VE involving an individual
with the same chronological age, educational, and vocational background as Plaintiff. (Tr. 68-69).
The VE testified such an individual could perform jobs as a cleaner in a hospital and as a
housekeeper. (Tr. 68-69). The ALJ then asked a second hypothetical question involving an
individual with a poor ability to maintain attention and concentration and deal with work stress. (Tr.
69). The VE testified that such an individual could not perform any jobs in the national economy.
(Tr. 69). However, the ALJ did not find Plaintiff had those additional impairments. (Tr. 13, Finding
4).
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It is generally accepted that VE testimony, in response to a hypothetical question, is
substantial evidence if the hypothetical sets forth the credible impairments with reasonable precision.
See Starr v. Sullivan, 981 F.2d 1006 (8th Cir. 1992). It has further been established that the ALJ
must only include in the hypothetical those impairments which the ALJ actually finds credible, and
not those which he rejects, assuming his findings are supported by substantial evidence. See Onstad
v. Shalala, 999 F.2d 1232 (8th Cir. 1993).
The ALJ found Plaintiff had the RFC to perform full range of work at all exertional levels
where interpersonal contact was incidental to the work performed and the tasks were no more
complex than those learned and performed by rote. (Tr. 13-14, Finding 4). In response to a
hypothetical question containing these limitations, the VE testified Plaintiff would be able to perform
work as a cleaner in a hospital with approximately 3,700 such jobs in Arkansas and 420,000 such
jobs in the nation, and work as housekeeper cleaner with approximately 3,600 such jobs in Arkansas
and 400,000 such jobs in the nation. (Tr. 69). Relying on the VE testimony, the ALJ found Plaintiff
was not under a disability as defined by the Act. (Tr. 18).
I find the ALJ's hypothetical question properly set forth those limitations he found credible
and which are supported by the evidence of record. See Haynes v. Shalala, 26 F.3d 812, 815 (8th
Cir. 1994); Rappoport v. Sullivan, 942 F.2d 1320, 1323 (8th Cir. 1991) (ALJ need only include in
his hypothetical question those impairments he accepts as true). The VE stated Plaintiff was capable
of performing work existing in significant numbers in the national economy. Such testimony, based
on a hypothetical question consistent with the record, provided substantial evidence to support the
ALJ’s decision.

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B. Failure To Develop The Record
The ALJ has the duty to fully and fairly develop the record, even where the Plaintiff is
represented by counsel. If a physician’s report of a claimant’s limitations are stated only generally,
the ALJ should ask the physician to clarify and explain the stated limitations. See Vaughn v.
Heckler, 741 F. 2d 177,179 (8th Cir. 1984). Furthermore, the ALJ is required to order medical
examinations and tests if the medical records presented do not provide sufficient medical evidence
to determine the nature and extent of a claimant’s limitations and impairments. See Barrett v.
Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994). The ALJ must develop the record until the evidence
is sufficiently clear to make a fair determination as to whether the claimant is disabled. See Landess
v. Weinberger, 490 F. 2d 1187, 1189 (8th Cir. 1974). In addition, a claimant must show not only that
the ALJ failed to fully and fairly develop the record, but he must also show that he was prejudiced
or treated unfairly by the ALJ's failure. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993).
Plaintiff argues the record contains inadequate evidence and the ALJ failed in his duty to
properly develop the record. Defendant argues substantial evidence shows the ALJ met his duty to
fairly develop the record.
Initially the Court notes Plaintiff has failed to establish that the medical records presented
did not provide sufficient medical evidence to determine the nature and extent of his limitations and
impairments. See Barrett v. Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994). An ALJ is not required
to order a consultative evaluation of every alleged impairment; he simply has the authority to do so
if the existing medical sources do not contain sufficient evidence to make an informed decision. See
Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989).
However, Plaintiff was seen for a consultative general physical examination and a
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consultative mental examination. (Tr. 175-179, 183-189). The ALJ, in his decision, relied on the
findings from these consultative examinations in making his decision of finding Plaintiff not
disabled. (Tr. 14-16). This medical evidence is sufficient to allow the ALJ to make an informed
decision in this case.
I find the ALJ satisfied his duty to fully and fairly develop the record in this matter.
C. ALJ’s Credibility Determination
Plaintiff also claims the ALJ erred in his credibility determination. ECF No. 7, Pg. 5.
Specifically, Plaintiff claims the ALJ erred by failing to make specific findings as to the relevant
evidence considered in deciding to discredit Plaintiff’s testimony. See id. Plaintiff claims the ALJ
merely decided, without any reasoning or explanation, to disbelieve Plaintiff’s subjective complaints.
See id. In response, Defendant argues that the ALJ properly evaluated and discredited Plaintiff’s
subjective complaints pursuant to the directives of Polaski. ECF No. 8, Pgs. 5-7.
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

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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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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 assessing her credibility as it related to the limiting effects
of her impairments 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 his 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. 14-16).
Specifically, the ALJ noted the following: (1) Absence of objective medical findings to support
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Plaintiff’s alleged disabling pain or inability to engage in sedentary work, (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) No use of
medication for her alleged impairments, and (5) Inconsistencies in statements given to consultative
medical examiners. 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 15th day of January 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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