Dixson v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 17, 2014. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
BLINDA DIXSON
vs.

PLAINTIFF
Civil No. 6:13-cv-06046

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Blinda Dixson (“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 applications for
Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), and a period of
disability 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 protectively filed her disability applications on August 5, 2010. (Tr. 9, 178-185).

In these applications, Plaintiff alleges being disabled due to diabetes, anemia, spondylolisthesis at
L5, bilateral neural foraminal narrowing at C6-C7, obesity, and high blood pressure. (Tr. 201).
Plaintiff alleges an onset date of December 31, 2008. (Tr. 9, 178-189). These applications were

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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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denied initially and again upon reconsideration. (Tr. 74-77).
Thereafter, Plaintiff requested an administrative hearing on January 20, 2011, and this
hearing request was granted. (Tr. 92, 104-109). Plaintiff’s administrative hearing was held on
March 8, 2012 in Hot Springs, Arkansas. (Tr. 24-49). Plaintiff was present at this hearing and was
represented by counsel, Shannon Herald. Id. Plaintiff and Vocational Expert (“VE”) Dianne Smith
testified at this hearing. Id. At this hearing, Plaintiff testified she was thirty-two (32) years old,
which is defined as a “younger person” under 20 C.F.R. § 416.963(c) (2008) (SSI) and 20 C.F.R. §
404.1563(c) (2008) (DIB). (Tr. 26). Plaintiff also testified she had graduated from high school but
had no additional training after high school. (Tr. 26-27).
After the hearing, on May 31, 2012, the ALJ entered an unfavorable decision denying
Plaintiff’s applications for DIB and SSI. (Tr. 6-19). In this decision, the ALJ found Plaintiff met
the insured status requirements of Act through December 31, 2013. (Tr. 11, Finding 1). The ALJ
found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since December 31, 2008,
her alleged onset date. (Tr. 11, Finding 2). The ALJ found Plaintiff had the following severe
impairments: diabetes mellitus, hip pain, headaches, back pain, and neck pain. (Tr. 11-12, Finding
3). Despite the severity of these impairments, however, the ALJ also determined they 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. 12, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 12-18, 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 RFC to perform sedentary work: “After careful consideration of the entire record, the
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undersigned finds that the claimant has the residual functional capacity to perform sedentary work
as defined in 20 CFR 404.1567(a) and 416.967(a).” Id. According to those provisions, “sedentary
work” is defined as follows:
(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other sedentary
criteria are met
20 C.F.R. § 404.1567(a); 20 C.F.R. § 416.967(a).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was
unable to perform her PRW as a deli worker and fast food worker. (Tr. 18, Finding 6). The ALJ
then considered whether Plaintiff retained the capacity to perform other work existing in significant
numbers in the national economy. (Tr. 18-19, Finding 10). The VE testified at the administrative
hearing regarding this issue. Id. Based upon that testimony, the ALJ found Plaintiff retained the
capacity to perform occupations such as the following: (1) an order clerk in the food and beverage
industry with 3,600 such jobs in Arkansas, 18,000 such jobs in the region, and 360,000 such jobs in
the nation; and (2) assembler, small parts mounter with 1,500 such jobs in Arkansas, 6,000 such jobs
in the region, and 210,000 such jobs in the nation. (Tr. 19). Because she retained the capacity to
perform this other work, the ALJ determined Plaintiff had not been under a disability, as defined by
the Act, from December 31, 2008 through the date of his decision or through May 31, 2012. (Tr. 19,
Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 4). On March 23, 2013, the Appeals Council denied this request for review. (Tr. 1-3).
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On May 2, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on May 2, 2013. ECF No. 5. Both Parties have filed appeal briefs. ECF
Nos. 11-12. 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,
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,

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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 following: (A) the ALJ erred when he found her

impairments did not meet the requirements of Listing 1.02; (B) the ALJ erred in assessing her
disabling pain; and (C) the ALJ erred in assessing her obesity. ECF No. 1. The Court will address
the three arguments Plaintiff has raised.

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A.

Listing 1.02

Plaintiff claims the ALJ erred by failing to find her impairments satisfy the requirements of
Listing 1.02. ECF No. 11 at 9-10. Plaintiff claims the ALJ did not even consider this issue at Step
Three of the Analysis. Id. Specifically, Plaintiff claims the ALJ “stopped his analysis at Step Two.”
Id. Plaintiff also claims the “Administrative Law Judge never assessed these Listings.” Id. Plaintiff
is simply incorrect. As noted above, the ALJ did proceed to Step Three in the Analysis and did not
stop at Step Two. See Tr. 12, Finding 4. Thus, Plaintiff’s claim that the ALJ did not proceed to Step
Three of the Analysis is simply incorrect.
Further, even considering Listing 1.02, the Court finds Plaintiff’s impairments do not meet
the requirements of Listing 1.02.

Indeed, in her briefing, Plaintiff indicates that her

impairments–including her obesity–meet the requirements of Listing 1.02. ECF No. 11 at 9-10.
Listing 1.02, however, requires a “gross anatomical deformity (e.g., subluxation, contracture, bony
or fibrous ankylosis, instability).” Plaintiff has not argued or even attempted to demonstrate she
suffers from a “gross anatomical deformity.” Accordingly, Plaintiff has not met her burden of
establishing her impairments meet the requirements of Listing 1.02. See Johnson v. Barnhart, 390
F.3d 1067, 1070 (8th Cir. 2004) (holding “[t]he burden of proof is on the plaintiff to establish that
his or her impairment meets or equals a listing”).
B.

ALJ’s Evaluation of Plaintiff’s Pain

Plaintiff claims the ALJ erred in evaluating her subjective complaints of disabling pain. ECF
No. 11 at 10-12. 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. §

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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
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.
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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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See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
In the present action, the ALJ fully complied with the requirements of Polaski. (Tr. 12-18).
Indeed, the ALJ outlined the Polaski factors and noted several inconsistencies: (1) she is able to get
“her children up in the morning, ready for school” and drive them to school; (2) she is able to read
and watch television; (3) she “cooks on a daily basis, washes dishes, vacuums and does laundry”;
(4) she reports she needs “no reminders to care for her personal needs or take medication”; (5) she
prepares meals daily, washes dishes, vacuums and does laundry; (6) she “drives a vehicle, can go out
along [alone], shop for groceries and can handle money and finances”; and (7) she “has not sought
out or had aggressive medical treatment or surgical intervention for disabling pain; or has she sought
out emergency (or other) treatment at a frequency commensurate with the amount of severe pain
alleged.” (Tr. 17).
Because the ALJ considered the Polaski factors and then provided these valid reasons for
discounting Plaintiff’s subjective complaints, the Court finds no basis for reversal on this issue. See
McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011) (holding where the ALJ explicitly discredits a
claimant and gives good reasons for doing so, the court normally defers to the ALJ’s credibility
findings). See also Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005) (recognizing the ALJ need
not explicitly discuss every Polaski factor in his or her opinion prior to discounting a clamant’s
subjective complaints).
C.

Assessment of Plaintiff’s Obesity

Plaintiff raises a number of issues with her third argument. ECF No.11 at 13-16. In her
briefing under this argument header, Plaintiff primarily attacks the ALJ’s findings regarding her
obesity. Id. The Court will separately address each of the issues she raises.
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First, Plaintiff

appears to argue the ALJ erred by applying the Medical-Vocational

Guidelines or “The Grids.” ECF No. 11 at 13. Of course, this claim is incorrect because the ALJ
did not apply the Grids. Instead, the ALJ considered and relied upon the testimony of a VE. See Tr.
43-49. Thus, there is no merit to this argument.
Second, Plaintiff appears to argue the ALJ erred because he did not include her obesity in his
hypothetical to the VE. ECF No. 11 at 15-16. This is also incorrect. In the ALJ’s hypothetical to
the VE, the ALJ included “obesity and mild to moderate pain.” See Tr. 43-49. Thus, Plaintiff is also
incorrect in this argument, and the ALJ did include Plaintiff’s obesity in his hypothetical to the VE.
Third, Plaintiff claims her obesity, in combination with her other impairments, meets the
requirements of a Listing. ECF No. 11 at 15. In making this argument, Plaintiff acknowledges
obesity alone is no longer a separate Listing. Id. Instead, Plaintiff argues her obesity should be
considered in combination with her other impairments. Id. When considering her other impairments
in combination with her obesity, Plaintiff claims they do meet the requirements of one of the
Listings. Id.
However, in claiming her impairments meet the requirements of a Listing, Plaintiff does not
specify which Listing her impairments meet. ECF No. 11 at 15. As noted above, Plaintiff has not
demonstrated her impairments meet the requirements of Listing 1.02. Plaintiff has provided no other
Listing that her obesity, in combination with her other impairments, meets. ECF No. 11 at 15. Thus,
because Plaintiff provides nothing more than her bare claim on this issue–without argument or
briefing–this Court will not address this issue further. See Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005) (summarily rejecting an appellant’s conclusory assertion that the ALJ failed to
consider whether he met certain listings, where appellant provided no analysis of relevant law or
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facts).
Fourth and finally, Plaintiff argues the ALJ erred because he failed to include a “sit/stand”
option in his RFC assessment. ECF No. 11 at 15-16. Plaintiff claims that because she suffers from
obesity, she requires a “sit/stand option.” Id. Plaintiff, however, provides no support for this claim.
Id. The mere fact Plaintiff is obese does necessarily establish that she needs a “sit/stand” option and
is unable to perform the full range of sedentary work. Thus, the Court also dismisses this claim.
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 17th day of July 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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