Dupree v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION Signed by Honorable Barry A. Bryant on July 31, 2014. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
PAUL RAY DUPREE
vs.

PLAINTIFF
Civil No. 6:13-cv-06085

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Paul Ray Dupree (“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 his applications for
Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), 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. 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 applications for disability benefits on September 3, 2010. (Tr. 10,110,117).
Plaintiff alleged he was disabled due to mental problems, bulging disc, back problems, high blood
pressure, depression, vision problems in right eye, and blood in stool. (Tr. 156). Plaintiff alleged

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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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an onset date of January 1, 2010. (Tr. 10). These applications were denied initially and again on
reconsideration. (Tr. 45-58). Thereafter, Plaintiff requested an administrative hearing on his
applications and this hearing request was granted. (Tr. 66-67).
Plaintiff’s administrative hearing was held on March 19, 2012. (Tr. 22-44). Plaintiff was
present and was represented by counsel, Hans Pullen, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Mack Welch testified at this hearing. Id. At the time of this hearing, Plaintiff was
fifty-four (54) years old, and had an eleventh grade education. (Tr. 24-25).
On July 12, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s applications
for DIB and SSI. (Tr. 10-17). In this decision, the ALJ determined Plaintiff met the insured status
of the Act through June 30, 2012. (Tr. 12, Finding 1). The ALJ also determined Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”) since January 1, 2010, his alleged onset date. (Tr.
12, Finding 2).
The ALJ determined Plaintiff had the severe impairments of back pain and depression. (Tr.
12, Finding 3). The ALJ also determined, however, that Plaintiff did not have an impairment or a
combination of impairments that met or medically equaled one of the listed impairments in the
Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 and No. 16 (“Listings”).
(Tr. 12, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 13-15, Finding 5). The ALJ indicated he evaluated Plaintiff’s subjective complaints and found
his claimed limitations were not fully credible. (Tr. 15). The ALJ also determined, based upon his
review of Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record,
that Plaintiff retained the RFC for light work except can occasionally climb, balance, stoop, bend,

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crouch, kneel or crawl; no more than incidental interpersonal conduct; tasks are learned by rote with
few variables and little judgment; supervision must be simple, direct and concrete. (Tr. 13, Finding
5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 15). The ALJ found
Plaintiff had no PRW. (Tr. 15, Finding 6). The ALJ, however, also determined there was other
work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 16,
Finding 10). The ALJ based his determination upon the testimony of the VE. Id. Specifically, the
VE testified that given all Plaintiff’s vocational factors, a hypothetical individual would be able to
perform the requirements of a representative occupation such as a poultry picker with approximately
10,000 such jobs in Arkansas and 160,000 such jobs in the nation. Id. Based upon this finding, the
ALJ determined Plaintiff had not been under a disability as defined by the Act from January 1, 2010
through the date of the decision. (Tr. 16, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 5-6). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On July 29, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on August 16, 2013. ECF No. 8. Both Parties have filed
appeal briefs. ECF Nos. 12, 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

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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,
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
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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 his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 12. Specifically, Plaintiff claims the following: (1) the
ALJ failed to consider his impairments in combination, (2) the ALJ erred in his RFC determination,
and (3) the ALJ erred in his credibility determination. ECF No. 12 at 8-17. In response, the
Defendant argues the ALJ did not err in any of his findings. ECF No. 13.
A. 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
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of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.” (Tr. 12, Finding 4) (emphasis added). The ALJ also found, “after
consideration of the entire record,” the Plaintiff had the RFC to perform light work with limitations.
(Tr. 13, Finding 5). 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. 16, Finding
10).
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
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.
B. RFC
Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required
to determine a claimant’s RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must
be based on medical evidence that addresses the claimant’s ability to function in the workplace. See
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Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). The ALJ should consider “‘all the evidence
in the record’ in determining the RFC, including ‘the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.’” Stormo v. Barnhart,
377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002)).
The Plaintiff has the burden of producing documents and evidence to support his or her claimed
RFC. See Cox, 160 F.3d at1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The ALJ, however, bears the primary responsibility for making the RFC determination and
for ensuring there is “some medical evidence” regarding the claimant’s “ability to function in the
workplace” that supports the RFC determination. Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir.
2001). Furthermore, this Court is required to affirm the ALJ’s RFC determination if that
determination is supported by substantial evidence on the record as a whole. See McKinney v. Apfel,
228 F.3d 860, 862 (8th Cir. 2000).
In this matter, the ALJ determined Plaintiff retained the RFC to perform the light work with
limitations. (Tr. 13, Finding 5). Plaintiff argues the ALJ erred in this RFC determination when he
found Plaintiff could perform light work as a poultry hanger. ECF No. 12, Pgs. 12-14. However,
substantial evidence supports the ALJ’s RFC determination.
To begin with, Plaintiff’s argument that the ALJ erred by finding Plaintiff capable of
performing the full range of light work (ECF No. 12, Pg. 11) is without merit. The ALJ found
Plaintiff capable of a limited range of light work with limitations of only occasionally climb, balance,
stoop, bend, crouch, kneel or crawl; no more than incidental interpersonal conduct; tasks are learned
by rote with few variables and little judgment; supervision must be simple, direct and concrete. (Tr.
13, Finding 5).
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Additionally, Plaintiff argues the ALJ erred by in the RFC determination when he found
Plaintiff could perform light work as a poultry hanger. ECF No. 12, Pgs. 12-14. However, the ALJ
did not find Plaintiff capable of performing the occupation of poultry hanger which is D.O.T code
# 525.687.078, rather the ALJ found Plaintiff of performing the requirements of a poultry picker
D.O.T. code # 525.687.070. (Tr. 16). The functional limitations the ALJ specified in his RFC and
hypothetical question and the occupation the VE identified, (poultry picker), are not in conflict.
Substantial evidence supports the ALJ’s RFC determination finding Plaintiff capable of
performing a limited ranger of light work. Plaintiff has the burden of establishing his claimed RFC.
See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v. Barnhart, 390 F.3d
584, 590 (8th Cir. 2004)). Because Plaintiff has not met his burden in this case and because the
ALJ’s RFC determination is supported by sufficient medical evidence, this Court finds the ALJ’s
RFC determination should be affirmed.
C. ALJ’s Credibility Determination
Plaintiff also claims the ALJ erred in his credibility determination. ECF No. 12, Pages 14-17.
In response, Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective
complaints pursuant to the directives of Polaski. ECF No. 13, Pages 9-12.
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. § 404.1529
and 20 C.F.R. § 416.929.2 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to consider

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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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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 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.
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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. 14-15).
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, (3) No physician has placed a level of limitation on Plaintiff’s activities
comparable to those described by Plaintiff, (4) Has not required regular treatment for any
impairment, and (5) No reported side effects from medication. 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 31st day of July 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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