Ward-Sanchez v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 10, 2013. (tg)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION JULIE WARD-SANCHEZ vs. PLAINTIFF Civil No. 6:12-cv-06045 CAROLYN COLVIN Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION Julie Ward-Sanchez (“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. 6.1 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 September 17, 2008. (Tr. 10, 106-115). Plaintiff alleged she was disabled due to fibromyalgia, diabetes, chronic lower back pain, migraines, and hepatitis. (Tr. 140). Plaintiff alleged an onset date of February 2, 2006. (Tr. 140). These 1 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.” 1 applications were denied initially and again upon reconsideration. (Tr. 67-73, 78-81). Thereafter, Plaintiff requested an administrative hearing on her applications and this hearing request was granted. (Tr. 84). Plaintiff’s administrative hearing was held on May 13, 2010. (Tr. 34-62). Plaintiff was present and was represented by counsel, Shannon Carroll, at this hearing. Id. Plaintiff, witness Judy Benson, and Vocational Expert (“VE”) David Elmore testified at this hearing. Id. At the time of this hearing, Plaintiff was thirty-nine (39) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c), and had a tenth grade education. (Tr. 38). On September 4, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s applications for DIB and SSI. (Tr. 10-23). In this decision, the ALJ determined Plaintiff met the insured status requirements of the Act through June 30, 2012. (Tr. 12, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since February 2, 2006. (Tr. 12, Finding 2). The ALJ also determined Plaintiff had the severe impairment of fibromyalgia, chronic low back pain status post discectomy in her lumbar area, migraine cephalalgia, and Hepatitis C. (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. 13-22). 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 light work; could occasionally climb, balance, stoop, kneel, crouch, and crawl; and should avoid working at extreme temperatures or around hazards including moving machinery 2 and unprotected heights. Id. The ALJ also evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 22, Finding 6). The ALJ found Plaintiff was capable of performing her PRW as a fast food worker and cashier. 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. 23, 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 April 2, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on July 3, 2012. ECF No. 6. Both Parties have filed appeal briefs. ECF Nos. 8, 9. 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, 3 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). 4 3. Discussion: Plaintiff brings the present appeal claiming the ALJ erred: (A) in assessing Plaintiff’s credibility, (B) in assessing Plaintiff’s nonexertional limitations, and (C) in failing to question the VE. ECF No. 8, Pgs. 8-18. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 9. A. ALJ’s Credibility Determination Plaintiff claims the ALJ erred in his credibility determination. ECF No. 8, Pages 8-14. 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 the directives of Polaski. ECF No. 9, Pages 4-10. 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. § 416.929.2 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 2 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. 5 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. The 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. 13-22). 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, 6 (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, (5) Plaintiff’s medication has been effective in controlling her symptoms, (6) There have been periods of time when Plaintiff took no medications for her alleged disabling symptoms, (7) Plaintiff failed to follow up on recommendations made by her treating physician, and (8) Plaintiff’s medical treatment was essentially routine and conservative. 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. B. Non-exertional Limitations Plaintiff alleges the ALJ erred because he failed to properly consider Plaintiff’s nonexertional limitations. ECF No. 8, Pg. 14-15. However, the ALJ did consider Plaintiff’s alleged limitations and provided for them in his RFC assessment. (Tr. 14-21). If the ALJ properly determines that a claimant’s RFC is not significantly diminished by a non-exertional limitation, then the ALJ may rely exclusively upon the Grids, and is not required to hear the testimony from a VE. However, the ALJ may not apply the Grids, and must hear testimony from a VE, where a claimant’s RFC is significantly diminished by a non-exertional limitation. See McGeorge v. Barnhart, 321 F.3d 766, 768-69 (8th Cir. 2003). A “non-exertional limitation” is a limitation or restriction which affect a claimant’s “ability to meet the demands of jobs other than the strength demands.” 20 C.F.R. § 404.1569a(a). Nonexertional limitations include the following: (1) difficulty functioning due to pain; (2) difficulty functioning due to nervousness, anxiety, or depression; (3) difficulty maintaining attention or 7 concentration; (4) difficulty understanding or remembering detailed instructions; (5) difficulty seeing or hearing; (6) difficulty tolerating a physical feature of a certain work setting (such as dust or fumes); or (7) difficulty performing the manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching. See 20 C.F.R. § 404.1569a(c)(1). Plaintiff argues the ALJ erred in his evaluation of her non-exertional limitations because the record indicated she was diagnosed with various conditions including Hepatitis C; migraine headaches; fibromyalgia; and back, shoulder, and hip pain. To begin with, a diagnosis of a condition alone is not sufficient to prove disability. Trenary v. Bowen, 898 F.2d 1361, 1364 (8th Cir. 1990). Further, the ALJ did not find Plaintiff had the ability to perform the full range of light work. In fact, the ALJ limited Plaintiff’s RFC by finding Plaintiff could only occasionally climb, balance, stoop, kneel, crouch, and crawl and should avoid working at extreme temperatures or around hazards including moving machinery and unprotected heights. (Tr. 13). The ALJ properly considered these alleged complaints and in fact provided for them in his RFC determination. Substantial evidence supports the ALJ’s findings. C. Questioning of VE Plaintiff alleges the ALJ committed error because he never questioned the VE on whether Plaintiff could perform light work. ECF No. 8, Pg. 15-18. However, based on the ALJ’s findings, no VE testimony was needed. In this matter, the ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was capable of performing her PRW as a fast food worker and cashier. (Tr. 22, 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. 23, Finding 7). If the ALJ finds Plaintiff has the RFC to perform her 8 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 10th day of May 2013. /s/ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE 9

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