Brock v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 21, 2014. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
WANDA F. BROCK
vs.

PLAINTIFF
Civil No. 6:13-cv-06016

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Wanda F. Brock (“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 a
period of disability and Disability Insurance Benefits (“DIB”) 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. 8.1 Pursuant to this authority, the Court issues this memorandum
opinion and orders the entry of a final judgment in this matter.
1.

Background:
Plaintiff filed her disability application on March 15, 2010. (Tr. 15, 101). Plaintiff alleges

being disabled due to a heart attack, diabetes, depression, “nerves,” arthritis, a tailbone injury, and
“spinal problems.” (Tr. 127). Plaintiff alleges an onset date of December 26, 2009. (Tr. 15, 101).
This application was denied initially and again upon reconsideration. (Tr. 50-51). Thereafter,
Plaintiff requested an administrative hearing on her application, and this hearing request was granted.

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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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(Tr. 60-71).
On August 11, 2011, this administrative hearing was held in Hot Springs, Arkansas. (Tr. 2849). Plaintiff was present at this hearing and was represented by Charles Padgham. Id. Plaintiff and
Vocational Expert (“VE”) William Elmore testified at this hearing. Id. At this hearing, Plaintiff
testified she was forty-seven (47) years old, which is defined as a “younger person” under 20 C.F.R.
§ 404.1563(c) (2008) (DIB). (Tr. 32). As for her level of education, Plaintiff testified she had
obtained her GED. Id.
After this hearing, on October 21, 2011, the ALJ entered an unfavorable decision denying
Plaintiff’s application for DIB. (Tr. 15-23). In this decision, the ALJ found Plaintiff met the insured
status requirements of the Act through June 30, 2014. (Tr. 17, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since December 26, 2009, her
alleged onset date. (Tr. 17, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: coronary artery disease, diabetes, anxiety disorder, and depression. (Tr. 17, Finding
3). The ALJ also determined Plaintiff’s impairments did not meet or medically equal the
requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No.
4 (“Listings”). (Tr. 18-19, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 19-22, Finding 5). 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 following RFC:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) except occasionally climb stairs, balance, stoop, kneel, crouch and
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crawl; never climb ladders, cannot sustain work without option to sit/stand at will;
able to perform work where interpersonal contact is incidental to work performed;
complexity of tasks is learned and performed by rote, with few variables, little
judgment and where supervision required is simple, direct, and concrete.
Id. “Light work” is defined as follows:
(b) Light work. Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or she can also
do sedentary work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b) (2012).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 22, Finding 6). The ALJ
found Plaintiff’s PRW included work as a cashier/stocker and cashier/supervisor. Id. Considering
her RFC, the ALJ determined Plaintiff was unable to perform any of this PRW. Id. The ALJ then
considered whether Plaintiff retained the capacity to perform other work existing in significant
numbers in the national economy. (Tr. 22-23, Finding 10).
The VE testified at the administrative hearing regarding this issue. (Tr. 22-23, Finding 10;
Tr. 45-49). Considering a hypothetical individual with Plaintiff’s RFC, age, work experience, and
other limitations, the VE testified that individual would be able to perform the requirements of
representative occupations such as a final assembler (sedentary, unskilled) with 60,000 such jobs in
the nation and 1,000 such jobs in Arkansas. Id. Based upon this testimony, the ALJ determined
Plaintiff retained the capacity to perform other work existing in significant numbers in the national
economy and had not been under a disability, as defined in the Act, from December 26, 2009 through

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the date of her decision or through October 21, 2011. (Tr. 23, Finding 11).
Thereafter, on November 1, 2011, Plaintiff requested the Appeals Council’s review of the
ALJ’s unfavorable decision. (Tr. 10). On January 30, 2013, the Appeals Council denied this request
for review. (Tr. 1-3). On February 11, 2013, Plaintiff filed the present appeal. ECF No. 1. The
Parties consented to the jurisdiction of this Court on March 7, 2013. ECF No. 8. Both Parties have
filed appeal briefs. ECF Nos. 11, 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)
(2010); 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:
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by

substantial evidence in the record. ECF No. 11 at 2-11. Specifically, Plaintiff claims the following:
(A) the ALJ erred when she found Plaintiff retains the ability to perform work existing in signfiicant
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numbers in the national economy; (B) the ALJ erred in evaluating her subjective complaints of
disability; and (C) the ALJ erred by giving “very little weight” to the opinion of her treating
physician. Id. The Court will address all of these arguments.
A.

Step Five Determination

Plaintiff claims the ALJ erred when she found Plaintiff could perform other work existing
in significant numbers in the national economy. ECF No. 11 at 3-8. Plaintiff makes two claims
regarding the ALJ’s Step Five determination. Id. First, Plaintiff claims the ALJ did not “provide
information as to what position [or occupation]” she could perform. ECF No. 11 at 3. Plaintiff is
incorrect in this claim. The ALJ specifically found Plaintiff retained the capacity to perform an
occupation such as a final assembler (sedentary, unskilled) with 60,000 such jobs in the nation and
1,000 such jobs in Arkansas. (Tr. 22-23, Finding 10).
Second, Plaintiff claims the VE testified that given all her restrictions and limitations “there
would be no work available that she could perform in the national economy.” ECF No. 11 at 3. This
is also incorrect. At the administrative hearing in this matter, the VE specifically identified the
occupation of a final assembler in response to a hypothetical from the ALJ which included all the
limitations the ALJ found credible. (Tr. 47-48). Plaintiff is correct that the VE stated there were no
jobs a hypothetical person could perform considering the added limitations that the person “cannot
perform work without missing work or being late more than twice per month or having to take
frequent, unscheduled breaks at will for any reason.” Id. The ALJ, however, did not find Plaintiff
had these limitations. (Tr. 19-22, Finding 5). Thus, the ALJ was not required to present them in
her hypothetical to the VE. See Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005)
(holding the hypothetical to the VE “need only include those impairments and limitations found
credible by the ALJ”).
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B.

Subjective Complaints

Plaintiff claims the ALJ erred in assessing her subjective complaints. ECF No. 11 at 8-9.
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 that 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

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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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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).
In the present action, the ALJ fully complied with Polaski. (Tr. 19-22). In her opinion, the
ALJ first recognized Polaski and the factors she was required to consider. (Tr. 19-20). The ALJ
then outlined Plaintiff’s subjective complaints.

(Tr. 20).

After considering her subjective

complaints, the ALJ recognized that despite her subjective complaints of disabling pain and other
limitations, Plaintiff “is able to engage in most of her activities of daily living with mild to moderate
limitations.” (Tr. 21). The ALJ also considered Plaintiff’s medication and noted her medical records
indicate her “medication has improved her symptoms and there are no side effects.” (Tr. 21).
In her opinion, the ALJ did not methodically discuss each Polaski factor. (Tr. 19-20). While
that is the preferred practice, the ALJ is not required to discuss each factor. See, e.g., Goff v.
Barnhart, 421 F.3d 785, 791-92 (8th Cir. 2005) (recognizing the ALJ need not discuss each Polaski
factor). Accordingly, even though she did not analyze each factor, because the ALJ acknowledged
the Polaski factors prior to discounting Plaintiff’s subjective complaints and provided valid reasons
for discounting Plaintiff’s subjective complaints, the Court finds no basis for reversal on this issue.
See, e.g., McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011) (if the ALJ explicitly discredits the
claimant and gives “good reasons” for doing so, the court normally defers to the ALJ’s credibility
determination).

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C.

Treating Physician

Plaintiff claims the ALJ erred in rejecting “the diagnosis of Dr. Matthew Osborne,” her
treating physician. ECF No. 11 at 9-11. Plaintiff claims Dr. Osborne diagnosed her with
fibromyalgia, and she argues the ALJ erred in considering this diagnosis and in fully evaluating her
fibromyalgia. Id. at 8. In her opinion, the ALJ considered Plaintiff’s allegation that she was disabled
due to fibromyalgia; but after considering her complaints, the ALJ found Plaintiff’s fibromyalgia was
not a severe impairment. (Tr. 17). The ALJ based this determination upon the fact that there is not
a “diagnosis of this impairment [fibromyalgia] on file.” Id.
In her appeal brief, Plaintiff claims Dr. Osborne diagnosed her with fibromyalgia on February
9, 2010. ECF No. 11 at 8-9. Plaintiff does not reference any specific medical record or records
wherein she was diagnosed with fibromyalgia. Id. The Court has reviewed Plaintiff’s medical
records. (Tr. 198-358). There does not appear to be any record stating Plaintiff has been formally
diagnosed with fibromyalgia either on February 9, 2010 or at any other time. The only record which
comes close to such a diagnosis is from May 4, 2010. (Tr. 284).
On this date, May 4, 2010, Plaintiff was examined by either a doctor or a nurse at
Arkadelphia Medical Clinic and was found to have “possible fibromyalgia.” (Tr. 284). Thereafter,
some of her medical records intermittently reference “fibromyalgia” at different times, but there is
no indication she was ever tested and formally diagnosed with this impairment. Indeed, based upon
her medical records, it appears the term “fibromyalgia” is only included in those medical records
because she thought she suffered from this impairment. (Tr. 284) (“She is concerned about
fibromyalgia”). Accordingly, the Court cannot find the ALJ erred in finding her alleged fibromyalgia
was not a severe impairment.
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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 21st day of January 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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