Owen v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 26, 2013. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
BARBARA OWEN
vs.

PLAINTIFF
Civil No. 6:12-cv-06041

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Barbara Owen (“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 applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) 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. 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’s applications for DIB and SSI were filed on July 14, 2009. (Tr. 10, 98-107).
Plaintiff alleged she was disabled due to rheumatoid arthritis and cervical joint disease. (Tr. 139).
Plaintiff alleged an onset date of March 1, 2007. (Tr. 139). These applications were denied initially
and again upon reconsideration. (Tr. 44-49, 53-56). Thereafter, Plaintiff requested an administrative

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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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hearing on her applications and this hearing request was granted. (Tr. 57).
Plaintiff’s administrative hearing was held on July 1, 2010. (Tr. 23-39). Plaintiff was present
and was represented by counsel, Hans Pullen, at this hearing. Id. Plaintiff and Vocational Expert
(“VE”) David Elmore testified at this hearing. Id. At the time of this hearing, Plaintiff was fortyseven (47) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c), and had
a high school education. (Tr. 26).
On October 6, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s applications
for DIB and SSI. (Tr. 10-18). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 21, 2012. (Tr. 12, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since March 1, 2007. (Tr. 12,
Finding 2). The ALJ also determined Plaintiff had the severe impairment of rheumatoid arthritis
and osteoarthritis of the cervical spine. (Tr. 12, 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. 13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 13-18). 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 light work. Id.
The ALJ also evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, Finding 6). The
ALJ found Plaintiff was capable of performing her PRW as a receptionist, insurance clerk and
administrative clerk. Id. Having made this finding, the ALJ then determined Plaintiff had not been
under a “disability,” as defined by the Act, at any time through the date of the decision. (Tr. 18,

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Finding 7).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 5). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On March 21, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on April 17, 2012. ECF No. 5. Both Parties have filed appeal briefs.
ECF Nos. 8, 10. 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,

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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).
3. Discussion:
Plaintiff brings the present appeal claiming the ALJ erred: (A) in failing to find Plaintiff met
a Listing, (B) in assessing Plaintiff’s RFC, (C) in assessing Plaintiff’s credibility, and (D) in failing
to question the VE. ECF No. 8, Pgs. 9-21. In response, the Defendant argues the ALJ did not err

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in any of his findings. ECF No. 10.
A. Listings2
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 rheumatoid arthritis and
osteoarthritis of the cervical spine. (Tr. 12, Finding 3). 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 initially argues she meets Listing 1.00(B)(2)(d). ECF No. 8, Pgs. 9-10. However
this section is not a specific Listing but only a section that explains how the agency evaluates the
existence of pain to determine the impact on the individuals functioning under a musculoskeletal
system listing.
Plaintiff also argues she meets Listing 14.09 based on her diagnosis of rheumatoid arthritis.
ECF No. 8, Pgs. 11-13. To meet this Listing, the following must be met:

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The relevant period under consideration with respect to Plaintiff’s claim begins with her alleged onset date
of March 1, 2007, and continues through October 6, 2010, the date of the ALJ’s decision. See Mueller v. Astrue,
561 F.3d 837, 840 (8th Cir. 2009).

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14.09 Inflammatory arthritis. As described in 14.00D6. With:
A. Persistent inflammation or persistent deformity of:
1. One or more major peripheral weight-bearing joints resulting in the inability to ambulate
effectively (as defined in 14.00C6); or
2. One or more major peripheral joints in each upper extremity resulting in the inability to
perform fine and gross movements effectively (as defined in 14.00C7).
or
B. Inflammation or deformity in one or more major peripheral joints with:
1. Involvement of two or more organs/body systems with one of the organs/body systems
involved to at least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or
involuntary weight loss).
or
C. Ankylosing spondylitis or other spondyloarthropathies, with:
1. Ankylosis (fixation) of the dorsolumbar or cervical spine as shown by appropriate
medically acceptable imaging and measured on physical examination at 45° or more of
flexion from the vertical position (zero degrees); or
2. Ankylosis (fixation) of the dorsolumbar or cervical spine as shown by appropriate
medically acceptable imaging and measured on physical examination at 30° or more of
flexion (but less than 45°) measured from the vertical position (zero degrees), and
involvement of two or more organs/body systems with one of the organs/body systems
involved to at least a moderate level of severity.
or
D. Repeated manifestations of inflammatory arthritis, with at least two of the constitutional
symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the
following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration,
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persistence, or pace.
See 20 C.F.R. pt. 404, subpt. P, app. 1, § 14.09.
As mentioned, Plaintiff argues she meets listing 14.09 based on her diagnosis of rheumatoid
arthritis. However, the mere diagnosis of an impairment listed in Appendix 1 is not sufficient to
sustain a finding of disability. See 20 C.F.R. §§ 404.1525(d), 416.925(d). The medical evidence of
record shows Plaintiff was treated for a diagnosis of rheumatoid arthritis from early 2005 through
November 2006. (Tr. 246-266).
On February 25, 2005, Plaintiff was seen by Dr. Thomas Dykman. (Tr. 245-246). Dr.
Dykman indicated he had last seen Plaintiff in 2003, when he had diagnosed her with rheumatoid
arthritis. (Tr. 245). Dr. Dykman also stated Plaintiff had stopped taking her medications for one
year, causing a flare of her synovitis. Id. Dr. Dykman also stated according to Plaintiff, her pain was
a 1 on scale of 10. Id. Plaintiff returned to see Dr. Dykman on July 7 and November 10, 2005, and
on March 15, July 20, and November 8, 2006. (Tr. 252-253, 255-256, 260-261, 265-266, 268-269).
On each visit, Plaintiff was diagnosed with rheumatoid arthritis with minimal synovitis. Id. On
Plaintiff’s visit on November 8, 2006, Dr. Dykman offered to increase her medications, but Plaintiff
indicated her pain did not warrant a larger dose. (Tr. 269).
The medical record evidence, as discussed above, does not support Plaintiff’s claim of
meeting a Listing. Furthermore, even assuming such medical did support Plaintiff’s claim, Plaintiff
did not present any medical evidence showing she sought any medical treatment for rheumatoid
arthritis during the relevant period of disability, which began with her alleged onset date of March
1, 2007.
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.
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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 for the full range of light work.
(Tr. 13, Finding 5). Plaintiff argues the ALJ erred in this RFC determination. ECF No. 8, Pgs. 1319. However, substantial evidence supports the ALJ’s RFC determination finding Plaintiff capable
of performing the full range of light work.
On October 8, 2009, Dr. Michael Atta performed a general physical examination of Plaintiff.
(Tr. 195-201). Dr. Atta indicated Plaintiff had a normal range of motion of her shoulders, elbows,
wrists, hands, hips, knees, and ankles. (Tr. 197). Plaintiff’s cervical and lumbar spine flexion was
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also normal. Id. Dr. Atta indicated Plaintiff had no muscle spasms, atrophy, or weakness. (Tr. 198).
Additionally, Plaintiff had normal gait, coordination and limb function. Id. Dr. Atta found Plaintiff
had 80% grip strength in both hands, was able to hold a pen, touch fingertips to palms, oppose thumb
to fingers, pick up a coin, stand and walk without assistive devices, walk on heel and toes, and squat
and arise from a squatting position. Id. Dr. Atta diagnosed Plaintiff with osteoarthritis of the
cervical spine and stated Plaintiff had only a moderate limitation in flexion and extension of her
cervical spine. (Tr. 199).
On November 10, 2009, Dr. Alice Davidson reviewed Plaintiff’s medical records and found
Plaintiff had the RFC to lift and carry 20 pounds occasionally and 10 pounds frequently; to stand,
walk, and sit for 6 hours in an 8-hour workday; unlimited pushing or pulling limitations, other than
as assessed for lifting and carrying; and no postural, manipulative, visual, communicative, or
environmental limitations. (Tr. 204-211). This finding supports the ALJ’s RFC assessment.
As shown by the above medical evidence, substantial evidence supports the ALJ’s RFC
determination finding Plaintiff capable of performing the full range of light work. 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 his credibility determination. ECF No. 8, Pages 13-18.
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. In response, Defendant
argues that the ALJ properly evaluated and discredited Plaintiff’s subjective complaints pursuant to
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the directives of Polaski. ECF No. 10, Pages 8-10.
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 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

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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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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 his impairments and did not fully consider his 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. 13-18).
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) Medical records do not confirm any alleged side effects from use of
medications, (4) No physician has placed a level of limitation on Plaintiff’s activities comparable
to those described by Plaintiff, and (5) Plaintiff’s medication has been effective in controlling her
symptoms. 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.
D. Questioning of VE
Plaintiff alleges the ALJ committed error because he never questioned the VE on whether
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Plaintiff could perform light work. ECF No. 8, Pg. 19. However, based on the ALJ’s findings, no
VE testimony was needed.
In this matter, the ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) found Plaintiff
was capable of performing her PRW as a receptionist, insurance clerk and administrative clerk. (Tr.
18, Finding 6). The ALJ found this work was not precluded by her RFC. Id. Having made this
finding, the ALJ then determined Plaintiff had not been under a “disability,” as defined by the Act,
at any time through the date of the decision. (Tr. 18, Finding 7). If the ALJ finds Plaintiff has the
RFC to perform her PRW, then the ALJ will find her not disabled. See 20 C.F.R. §§ 404.1560(b)(3),
416.960(b)(3). VE testimony was not required based on the ALJ’s finding that Plaintiff was capable
of performing her PRW. Lewis v. Barnhart, 353 F.3d 642, 648 (8th Cir. 2003).
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 26th day of April 2013.

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

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