Robbins v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 29, 2014. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
STEPHANIE PAIGE ROBBINS
vs.

PLAINTIFF
Civil No. 6:13-cv-06030

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Stephanie Paige Robbins (“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 Disability Insurance Benefits (“DIB”) and a period of disability 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 post-judgment 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 November 18, 2010. (Tr. 12, 108-110). In this

application, Plaintiff alleges being disabled due to cervical cancer (stage 2), fibromyalgia, elbow
problems, wrist problems, hemochromatosis, and lower back problems. (Tr. 141). Plaintiff alleges
an onset date of Feburary 4, 2010. (Tr. 12, 108). This application was denied initially and again
upon reconsideration. (Tr. 61-62). Thereafter, Plaintiff requested an administrative hearing on her

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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. 72-82).
On April 12, 2012, this hearing was held in Hot Springs, Arkansas. (Tr. 24-54). Plaintiff
was present at this hearing and was represented by counsel, Hans Pullen. Id. Plaintiff and
Vocational Expert (“VE”) William David Elmore testified at this hearing. Id. At this hearing,
Plaintiff testified she was thirty-eight (38) years old, which is defined as a “younger person” under
20 C.F.R. § 404.1563(c) (2008). (Tr. 28).
After the hearing, on July 6, 2012, the ALJ entered an unfavorable decision denying
Plaintiff’s application for DIB. (Tr. 9-18). In this decision, the ALJ found Plaintiff met the insured
status requirements of the Act through September 30, 2013. (Tr. 14, Finding 1). The ALJ found
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since February 4, 2010, her
alleged onset date. (Tr. 14, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: “s/p cervical cancer, s/p chemotherapy/radiation and fibromyalgia with associated back
pain.” (Tr. 14, 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. 14, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 15-17, 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 the full range of light work
as defined in 20 CFR 404.1567(b). She should be able to occasionally lift and carry
20 pounds and frequently lift and carry 10 pounds. She can stand and/or walk no
more than 6 hours of an 8 hour workday and sit no more than 6 hours of an 8 hour
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workday. She can stop [stoop] or bend occasionally, but crouching would not be
required.
Id.
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17, Finding 6). The
VE testified at the administrative hearing regarding this issue. (Tr. 17, 47-54). Considering her RFC
and PRW, the VE testified Plaintiff retained the capacity to perform her PRW as a receptionist and
also an employee in jewelry and clothing sales. (Tr. 17, Finding 6). Because he found Plaintiff
retained the capacity to perform her PRW, the ALJ determined Plaintiff had not been under a
disability, as defined by the Act, from her application date of February 4, 2010 through the date of
the ALJ’s decision or through July 6, 2012. (Tr. 17, Finding 7).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 5-6). On February 14, 2013, the Appeals Council denied this request for review. (Tr.
1-3). On April 3, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on April 23, 2013. ECF No. 8. Both Parties have filed appeal briefs. ECF
Nos. 11, 14. 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

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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,
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
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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 1-21. Specifically, Plaintiff claims the following:
(A) the ALJ improperly evaluated Listings 1.00(B)(2)(b) and (d) and 14.09; (B) the ALJ improperly
found she was not entitled to a closed period of disability in accordance with Listing 13.00 “et seq.”;
(C) the ALJ failed to evaluate the severity of her impairments in accordance with Polaski; and (D)
the ALJ erred by ending his analysis at Step Four. Id. The Court will address each of the arguments
Plaintiff has raised.2
A.

Evaluation of the Listings

Plaintiff claims the ALJ’s Step Three determination is not supported by substantial evidence
in the record. ECF No. 11 at 8-15. Specifically, Plaintiff claims her impairments meet the
requirements of Listings 1.00(B)(2)(b) and (d), 14.09, and 13.00 “et seq.” Id. In support of her
argument, Plaintiff cites to these listings, block-quotes her medical records, provides no analysis of
how her impairments meet the requirements of those listings, and then references her testimony at
the hearing in this matter. Id.

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However, because Plaintiff’s first (A) and second (B) arguments both relate to the Listings, the
Court will address these arguments together.

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As an initial matter, the Court notes Plaintiff has not referenced any of the correct listings.
First, Listing 1.00(B)(2)(b) and (d) provide an introduction to the Musculoskeletal System Listings
and is not one of the listings of impairments in its own right. Second, Listing 14.09 relates to
“inflammatory arthritis,” and Plaintiff has not referenced one medical record demonstrating she has
been diagnosed with inflammatory arthritis. Third and finally, Listing 13.00 “et seq.” encompasses
twenty-seven categories of “malignant neoplastic diseases” or cancers. Plaintiff has not provided
which specific listing her impairments purportedly meet.
Even if she had referenced the correct listings, Plaintiff has the burden of demonstrating any
of her impairment are of listing-level severity. See Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990).
In her briefing, Plaintiff provides no analysis of the law or facts demonstrating her impairments meet
the requirements of any of the listings. ECF No. 11 at 8-15. By providing no argument
demonstrating any of her impairments meet the requirements of any of the listings, Plaintiff has not
met her burden. Because the Court finds Plaintiff has not met that burden, the Court will not address
this issue further. See Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (summarily
rejecting appellant’s conclusory assertion that the ALJ failed to consider whether he met certain
listings, where the appellant provided no analysis of the relevant law or facts).
B.

Polaski Evaluation

Plaintiff claims the ALJ did not properly consider her subjective complaints of pain and other
limitations. ECF No. 11 at 15-18. 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).

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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

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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
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 Court finds the ALJ fully complied with the requirements of

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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Polaski. Notably, the ALJ referenced the Polaski factors and stated several inconsistencies between
her claims and the evidence in the record: (1) despite her complaints of disabling fatigue, Plaintiff’s
cancer was in full remission and she had been given a “fully active” release; (2) despite her
subjective complaints of being unable to work, Plaintiff had reported few (if any) side effects from
her medications which would prevent her from working; and (3) despite her complaints of disabling
fatigue, Plaintiff was “still very active,” attended competitive swimming events for her thirteenyear-old daughter, and was a “Cub Scout Den mother for her 7-year old.” (Tr. 16-17).
The ALJ also noted the following regarding Plaintiff’s daily activities: “[S]he reports that her
activities of daily living include getting two kids ready for school (a 3rd child is in preschool),
visiting sports practice, taking care of pets, performing household chores, driving and paying bills.
She indicates she attends church three times per week, visits with friends, emails and attends the
YMCA swim practice four times per week.” (Tr. 15). Based upon these findings, there is no basis
for reversal on this issue. See Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012) (stating that
if the ALJ explicitly discredits a claimant and gives good reasons for doing so, the appellate court
will normally defer to the ALJ’s determination).
C.

ALJ’s Determination

Plaintiff claims the ALJ erred by ending his analysis at Step Four and not posing a
hypothetical to the VE that “encompass[es] all [her] limitations.” ECF No. 11 at 19-21. In making
this argument, Plaintiff has not provided which specific limitations she believes should have been
included in a hypothetical to the VE. Id.
Further, contrary to Plaintiff’s argument, the ALJ did provide a hypothetical to the VE, and
the ALJ relied upon the VE’s responses to that hypothetical in making his disability determination.
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(Tr. 17, 47-54). The ALJ did so even though the testimony of a VE is not required at Step Four of
the Analysis. See Miles v. Barnhart, 374 F.3d 694, 700 (8th Cir. 2004). Thus, the Court cannot find
a basis for reversal on this issue.
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 29th day of April 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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