Noles v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on June 7, 2013. (adw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
TONY L. NOLES
vs.

PLAINTIFF
Civil No. 6:12-cv-06053

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Tony L. Noles (“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 his application for
Supplemental Security Income (“SSI”) 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’s application for SSI was filed on January 26, 2010. (Tr. 13, 87-89). Plaintiff
alleged he was disabled due to pancreatis, arthritis, and diabetes. (Tr. 104). Plaintiff alleged an
onset date of January 1, 2008. (Tr. 87). This application was denied initially and again upon
reconsideration. (Tr. 44-47, 51-55). Thereafter, Plaintiff requested an administrative hearing on his

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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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application and this hearing request was granted. (Tr. 53-54).
Plaintiff’s administrative hearing was held on October 28, 2010. (Tr. 26-41). Plaintiff was
present and was represented by counsel, Hans Pullen, at this hearing. Id. Plaintiff testified at this
hearing. Id. At the time of this hearing, Plaintiff was fifty-one (51) years old, which is defined as
a “person closely approaching advanced age” under 20 C.F.R. § 404.1563(d), and had a GED. (Tr.
29).
On November 17, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s
application for SSI. (Tr. 13-22). In this decision, the ALJ determined Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since January 26, 2010, his application date. (Tr. 15, Finding
1). The ALJ also determined Plaintiff had the severe impairment of Hepatitis C and Type II diabetes
mellitus. (Tr. 15, Finding 2). 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. 16, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 16-21). First, the ALJ indicated he 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 the full range of light work. (Tr. 16, Finding 4).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 21, Finding 5). The ALJ
found Plaintiff had no 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 then used Medical-Vocational Guidelines Rule 202.10 to reach a conclusion of “not
disabled,” based on Plaintiff’s age, education, vocational background, and residual functional

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capacity. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.21. (Tr. 22). The ALJ then determined
Plaintiff had not been under a “disability,” as defined by the Act, since his application date. (Tr. 22,
Finding 10).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 6). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-3).
On April 16, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on May 17, 2012. ECF No. 5. 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,
1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the burden of

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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).
3. Discussion:
Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to find Plaintiff met

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a Listing, (B) by not considering Plaintiff’s impairments in combination, (C) by failing to question
the VE, and (D) in assessing Plaintiff’s credibility. ECF No. 8, Pgs. 9-17. In response, the
Defendant argues the ALJ did not err in any of his findings. ECF No. 9.
A. Listings
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 Hepatitis C and Type II
diabetes mellitus. (Tr. 15, 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 his 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 argues he meets a Listing under Section 5.02 concerning “chronic gastritis,” and
Listing 5.05 concerning “chronic liver disease.” ECF No. 8, Pgs. 9-12. Defendant argues Plaintiff
has failed to establish he meets theses Listings. ECF No. 9, Pgs. 4-6.
Impairments found under Listing 5.00 involve digestive system disorders such as
gastrointestinal hemorrhage, hepatic (liver) dysfunction, inflammatory bowel disease, short bowel
syndrome, and malnutrition. See 20 C.F.R. pt. 404, subpt. P, app.1, 5.00A. Listing 5.02 involves
the condition of “gastrointestinal hemorrhaging from any cause.” See 20 C.F.R. pt. 404, subpt. P,

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app.1, 5.02.

To meet the Listing, Plaintiff must demonstrate he not only experiences

“gastrointestinal hemorrhaging,” but has received the following treatment: “blood transfusion (with
or without hospitalization) of at least two units of blood per transfusion, and occurring at least three
times during a consecutive 6-month period. The transfusions must be at least 30 days apart within
the 6-month period. Id.
Plaintiff also argues he meets Listing 5.05A for chronic liver disease. ECF No. 8, Pgs. 9-12.
To meet this Listing Plaintiff must show chronic liver disease accompanied by objective evidence
of hemorrhaging requiring hospitalization and a blood transfusion. See 20 C.F.R. pt. 404, subpt. P,
app.1, 5.05A.
In support of Plaintiff’s argument that he meets these Listings, Plaintiff only relies on entries
from medical reports for a hospitalization Plaintiff underwent in February 2010. On February 5,
2010, Plaintiff was admitted to the UAMS Medical Center with complaints of ‘belly pain.” (Tr.
158). Plaintiff was discharged on February 9, 2010 with a diagnosis of abdominal pain, hepatitis,
constipation, and abnormal weight loss. Id.
The records relied on by Plaintiff (Tr. 176, 190, 220, 227) fail to provide any evidence
showing Plaintiff meets the criteria of a Listing under Section 5.00. To begin with, these records
only involve Plaintiff’s condition over a five-day period. Id. Further, Plaintiff failed to demonstrate
any evidence in these records of gastrointestinal hemorrhaging, liver failure or a blood transfusion.
In fact, the medical evidence establishes Plaintiff has had no history of a blood transfusion. (Tr. 200,
308).
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. Combination of Impairments
Plaintiff argues the ALJ erred by failing to consider all of his impairments in combination.
However, under the facts in the present case and after a thorough review of the ALJ’s opinion and
the record in this case, this Court finds the ALJ properly considered Plaintiff’s impairments in
combination.
The Social Security Act requires the ALJ to consider the combined effect of all of the
claimant’s impairments without regard to whether any such impairment, if considered separately,
would be of sufficient severity. See 20 C.F.R. § 404.1523 (2006). In the present action, in reviewing
these claimed impairments, the ALJ stated Plaintiff “does not have an impairment or combination
of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.” (Tr. 16, Finding 3) (emphasis added). The ALJ also found, “after
consideration of the entire record,” the Plaintiff had the RFC to perform the full range of light work.
(Tr. 16, Finding 4). The ALJ went on to state Plaintiff’s RFC would not preclude him from
performing other work that exists in significant numbers in the national economy. (Tr. 21, Finding
9).
These statements are sufficient under Eighth Circuit precedent to establish that the ALJ
properly considered the combined effect of a claimant’s impairments. See Hajek v. Shalala, 30 F.3d
89, 92 (8th Cir. 1994) (holding that statements such as “the evidence as a whole does not show that
the claimant’s symptoms . . . preclude his past work as a janitor” and “[t]he claimant’s impairments
do not prevent him from performing janitorial work . . .” sufficiently establish that the ALJ properly
considered the combined effects of the plaintiff’s impairments).
Thus, pursuant to the Eighth Circuit’s holding in Hajek, this Court finds the ALJ properly
considered Plaintiff’s impairments in combination. Plaintiff has alleged he suffers from a number
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of impairments. However, this Court is not required to find a claimant is disabled simply because
he or she has alleged a long list of medical problems. The ALJ’s opinion sufficiently indicates the
ALJ properly considered the combined effect of Plaintiff’s impairments, and the ALJ properly
considered the severity of the combination of Plaintiff’s impairments. See Hajek, 30 F.3d at 92.
C. Questioning of VE
Plaintiff alleges the ALJ committed error because he failed to present any testimony from the
VE. ECF No. 8, Pg. 14-15. However, based on the ALJ’s findings, no VE testimony was needed.
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
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).
In this matter, the ALJ found Plaintiff did not have non-exertional limitations and had the
RFC to perform the full range of light work. (Tr. 16, Finding 4). As a result, the ALJ used
Medical-Vocational Guidelines Rule 202.10 to reach a conclusion of “not disabled,” based on
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Plaintiff’s age, education, vocational background, and residual functional capacity. See 20 C.F.R.
pt. 404, subpt. P, app. 2, § 202.22.
Plaintiff has failed to establish he was unable to perform the full range of light work, as a
result, the court finds the ALJ’s use of Medical-Vocational Grids to reach a conclusion of “not
disabled” is supported by substantial evidence.
D. ALJ’s Credibility Determination
Plaintiff also claims the ALJ erred in his credibility determination. ECF No. 8, Pages 15-17.
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 10-16.
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 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

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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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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 his 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. 18-21).
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
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to any serious degree, (3) No physician has placed a level of limitation on Plaintiff’s activities
comparable to those described by Plaintiff, (4) Plaintiff’s medication has been effective in
controlling his symptoms with few reported side effects, and (5) Plaintiff’s employment has been
sporadic with no reported earnings from 2004 to 2007. 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 7th day of June 2013.

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

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