LaPlante v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on October 6, 2014. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
VINCENT PAUL LAPLANTE
vs.

PLAINTIFF
Civil No. 6:13-cv-06121

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Vincent Paul LaPlante (“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 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) 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’s application for DIB and SSI was filed on October 16, 2006. (Tr. 101-110).
Plaintiff alleged he was disabled due to bi-polar and back problems. (Tr. 131). Plaintiff alleged an
onset date of June 30, 2001. (Tr. 131). These applications were denied initially and again upon
reconsideration. (Tr. 54-66). 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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applications and this hearing request was granted. (Tr. 70-72).
Plaintiff’s initial administrative hearing was held on November 5, 2008. (Tr. 19-49).
Following this on, January 15, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB and SSI. (Tr. 7-18). On February 17, 2011, the District Court remanded the case
to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g). (Tr.
596-605).
Following this, Plaintiff had a second administrative hearing on February 7, 2012. (Tr. 535579). Plaintiff was present and was represented by counsel, Thomas McGowan, at this hearing. Id.
Plaintiff, his mother Wanda LaPlante, and Vocational Expert (“VE”) Mack Welch testified at this
hearing. Id. At the time of this hearing, Plaintiff was forty-five (45) years old, which is defined as
a “younger person” under 20 C.F.R. § 404.1563(c), had completed the tenth grade and obtained a
GED. (Tr. 24).
On March 2, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB and SSI. (Tr. 512-528). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2006. (Tr. 514, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since June 30, 2001, his alleged
onset date. (Tr. 514, Finding 2).
The ALJ determined Plaintiff had the severe impairments of degenerative disc disease,
morbid obesity, seizure disorder (stable/medically controlled) and anxiety/depression. (Tr. 514,
Finding 3). 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. 515, Finding 4).

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In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 516-526). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. The ALJ also found Plaintiff retained the RFC
to perform light work with unlimited ability to operate hand and foot controls; can climb, balance,
stoop, kneel, crouch, and crawl occasionally; should avoid work at unprotected heights or around
moving machinery, as well as work requiring the use of firearms or the operation of motor vehicles;
and is restricted to work where interpersonal contact is only incidental to the work performed, the
complexity of tasks are learned and performed by rote with few variables and requiring little
judgment, and the supervision required is simple, direct and concrete. (Tr. 516-517, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 526, Finding 6). The ALJ
found Plaintiff was unable to perform his PRW as a casino card dealer. Id. The ALJ, however, also
determined there was other work existing in significant numbers in the national economy Plaintiff
could perform. (Tr. 527, 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 hand
packer with approximately 3,200 such jobs in Arkansas and 400,000 such jobs in the nation, and as
a hotel-motel maid/industrial cleaner with approximately 5,000 such jobs in Arkansas and 400,000
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 June 30, 2001 through the date of the decision. (Tr.
528, Finding 11).
On October 17, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on October 17, 2013. ECF No. 5. Both Parties have filed appeal

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briefs. ECF Nos. 12, 15. 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
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

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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) in failing to properly consider
Plaintiff’s complaints of pain, (B) in the weight given the opinions of Plaintiff’s physician, and (C)
in failing to present a proper hypothetical to the VE. ECF No. 12, Pgs. 2-10. In response, the
Defendant argues the ALJ did not err in any of his findings. ECF No. 15.
A. ALJ’s Credibility Determination
Plaintiff claims the ALJ erred in his credibility determination. ECF No. 12. In response,
Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective complaints
pursuant to the directives of Polaski. ECF No. 15.

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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 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

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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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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. 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, 20 C.F.R. §
404.1529, and 20 C.F.R. § 416.929, and stated inconsistencies between Plaintiff’s testimony and the
record. (Tr. 517-526). 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) Plaintiff has not required regular treatment
for any impairment, and (5) Plaintiff used pain medication sparingly and there were multiple
references to the absence of significant side effects. 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
complaints of pain.
B. ALJ’s Treatment of Treating Physician Opinions
Social Security Regulations and case law state that a treating physician's opinion will be
granted “controlling weight,” provided it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
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record.” See SSR 96-2p; Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000)(citing 20 C.F.R.
§ 404.1527(d)(2)). An ALJ is required to give good reasons for the particular weight given to a
treating physician’s evaluation. See Prosch, 201 F.3d at1013 (citing 20 C.F.R § 404.1527(d)(2), and
SSR 96-2p). An ALJ may disregard the opinion of a treating physician only where other medical
assessments “are supported by better or more thorough medical evidence,” or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions. Id. at 1013
(quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), and Cruze v. Chater, 85 F.3d 1320,
1324-25 (8th Cir. 1996)).
Plaintiff argues the ALJ improperly discredited the objective findings of Dr. Mark Albey in
assessing Plaintiff’s RFC. ECF No. 12, Pgs. 4-8. However, Plaintiff’s argument is without merit
as the ALJ gave sufficient reasons for his treatment of the opinions of Dr. Albey.
Plaintiff’s argument centers on the opinions set forth by Dr. Abley in a Work Capacities
Form filed out by Dr. Abley on July 6, 2011. (Tr. 729-731). On this form, Dr. Albey listed
limitations of Plaintiff including: lifting occasionally and frequently up to ten pounds; standing or
walking less than two hours and sitting three-to-four hours in an eight-hour workday; driving up to
two hours; and being unable to bend, squat, kneel, or climb. Id. Dr. Albey also stated Plaintiff was
taking medications that caused sedation and could not take while operating machinery. (Tr. 730).
Dr. Albey indicated Plaintiff had bipolar disorder, anxiety disorder, and seizure disorder that affected
his ability to do basic work activities on a sustained basis and to concentrate, remember, follow
instructions, or work at a consistent pace. Id.
The ALJ, in his decision, gave only “some weight” to opinions of Dr. Albey. (Tr. 525). The
ALJ stated Dr. Albey had confirmed in previous medical reports that Plaintiff’s physical and mental
conditions were stable and unchanged for years. Id. Also, as the ALJ found, there was no evidence
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that prior to this report, Dr. Albey had ever advised Plaintiff of any functional limitations or that he
was precluded from engaging in work activity. Id. Of significance, inconsistent with Dr. Albey’s
opinion that Plaintiff was taking medications that caused sedation and could not take while operating
machinery, was that Dr. Albey noted in the treatment records he had given Plaintiff a prescription
for Ultram because it did make Plaintiff drowsy. (Tr. 417).
The medical evidence does not support Dr. Albey’s opinion that Plaintiff has extreme
limitations and his impairments affect his ability to perform work related activities. The ALJ
committed no error in his treatment of medical opinions from Dr. Albey.
C. Step 5 Determination
At Step Five of a disability determination, the SSA has the burden of establishing that a
claimant retains the ability to perform other work in the economy. See Snead v. Barnhart, 360 F.3d
838, 836 (8th Cir. 2004). The SSA may meet this burden by either applying the Grids or by relying
upon the testimony of a VE. See Cox v. Astrue, 495 F.3d 614, 621 (8th Cir. 2004) (finding the
SSA’s denial of benefits was supported by substantial evidence where the VE’s testimony was based
on a correctly-phrased hypothetical question); Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003)
(finding the SSA’s denial of benefits was supported by substantial evidence where the ALJ applied
the Grids).
The SSA may not apply the Grids, and must hear testimony from a VE, where a claimant’s
RFC is significantly diminished by a nonexertional limitation. See McGeorge v. Barnhart, 321 F.3d
766, 768-769 (8th Cir. 2003). If, however, the SSA properly determines a claimant’s RFC is not
significantly diminished by a nonexertional limitation, then the SSA may rely exclusively upon the
Grids and is not required to hear the testimony from a VE. See McGeorge, 321 F.3d at 768-769.
In this matter, the ALJ heard testimony from a VE regarding Plaintiff’s ability to perform
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work in the national economy. It is generally accepted that VE testimony, in response to a
hypothetical question, is substantial evidence if the hypothetical sets forth the credible impairments
with reasonable precision. See Starr v. Sullivan, 981 F.2d 1006 (8th Cir. 1992). It has further been
established the ALJ must only include in the hypothetical those impairments which the ALJ actually
finds credible, and not those which he rejects, assuming his findings are supported by substantial
evidence. See Onstad v. Shalala, 999 F.2d 1232 (8th Cir. 1993).
The ALJ found Plaintiff had the RFC to perform light work with unlimited ability to operate
hand and foot controls; can climb, balance, stoop, kneel, crouch, and crawl occasionally; should
avoid work at unprotected heights or around moving machinery, as well as work requiring the use
of firearms or the operation of motor vehicles; and is restricted to work where interpersonal contact
is only incidental to the work performed, the complexity of tasks are learned and performed by rote
with few variables and requiring little judgment, and the supervision required is simple, direct and
concrete. (Tr. 516-517, Finding 5). In response to a hypothetical question containing these
limitations, the VE testified work existed in the national economy consistent with the limitations
found by the ALJ. (Tr. 571-573). The ALJ found a significant number of jobs existed in the national
economy which Plaintiff could perform. (Tr. 527, Finding 10). Relying on the VE testimony, the
ALJ found Plaintiff was not under a disability as defined by the Act. (Tr. 528, Finding 11).
I find the ALJ's hypothetical question properly set forth those limitations the ALJ found
credible and which are supported by the evidence of record. See Haynes v. Shalala, 26 F.3d 812,
815 (8th Cir. 1994); Rappoport v. Sullivan, 942 F.2d 1320, 1322 (8th Cir. 1991) (ALJ need only
include in his hypothetical question those impairments he accepts as true). The VE stated jobs
existed in both the national and regional economy for the vocational profile of the Plaintiff. Such
testimony, based on a hypothetical question consistent with the record, provided substantial evidence
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to support the ALJ’s decision.
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 6th day of October 2014.

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

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