Brown v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 27, 2015. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
SANDRA ANN BROWN
vs.

PLAINTIFF
Civil No. 6:13-cv-06140

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Sandra Ann Brown (“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
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 protectively filed her current disability applications on October 7, 2010. (Tr. 10,

126-138). In these applications, Plaintiff alleges being disabled due to asthma, diabetes, and
“possibly cancer on lungs.” (Tr. 175). These applications were denied initially and again upon
reconsideration. (Tr. 66-69).

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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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Thereafter, on July 19, 2012, the ALJ held an administrative hearing on Plaintiff’s
applications. (Tr. 27-64). At this hearing, Plaintiff was present and was represented by Donald
Pullen. Id. Plaintiff and Vocational Expert (“VE”) Michael Welch testified at this hearing. Id.
During this hearing, Plaintiff testified she was forty-five (45) 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. 31-32). Plaintiff also testified she completed the twelfth grade in high school. (Tr. 32).
On October 26, 2012, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s applications. (Tr. 7-21). The ALJ found Plaintiff met the insured status
requirements of the Act through December 31, 2015. (Tr. 12, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since her alleged onset date. (Tr.
12, Finding 2). The ALJ determined Plaintiff had the following severe impairments: diabetes
mellitus, asthma, obesity, degenerative disease of the right knee, and mild mental retardation. (Tr.
12-13, 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. 13-15, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 15-20, 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 capacity to perform the following:
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) and 416.967(b) except she should never climb ropes, ladders, or
scaffolds, but can occasionally balance, kneel, crawl, and climb ramps and stairs.
She can frequently stoop and crouch, but must avoid moderate exposure to fumes,
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odors, gases, dust, poor ventilation, and hazards such as heights, machinery, or
moving vehicles. Mentally, due to her limited education and mild mental retardation,
she is limited to unskilled work. Unskilled work is work where interpersonal contact
is only incidental to the work performed; any tasks could be learned by rote, contain
few variables and require little judgment and any required supervision would be
simple, direct and concrete.
Id.
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 20, Finding 6). The
VE testified at the administrative hearing regarding this issue. (Tr. 20, 61-64). Considering the VE’s
testimony and Plaintiff’s RFC, the ALJ determined Plaintiff retained the capacity to perform her
PRW as an inspector or checker. Id. Because Plaintiff retained the capacity to perform her PRW,
the ALJ also determined Plaintiff had not been under a disability, as defined in the Act, from October
15, 2008 through the date of his decision or through October 26, 2012. (Tr. 20, Finding 7).
Thereafter, on November 6, 2012, Plaintiff requested the review of the Appeals Council. (Tr.
5). On November 4, 2013, the Appeals Council denied this request for review. (Tr. 1-3). Plaintiff
then filed her Complaint in this case on November 27, 2013. ECF No. 1. The Parties consented to
the jurisdiction of this Court on December 18, 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
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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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
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
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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. 12. Specifically, Plaintiff claims the following: (A) the
ALJ erred in failing “to properly assess . . . [her] . . . low I.Q. (12.05) and low GAF”; (B) the ALJ
erred in evaluating whether her impairments met the requirements of Listing 1.02; (C) the ALJ erred
in discrediting her subjective complaints and the findings of her treating psychiatrist; (D) the ALJ
erred in his RFC determination; and (E) the ALJ erred by failing to submit a complete hypothetical
to the VE. ECF No. 12 at 1-20. The Court will address each of the arguments Plaintiff has raised.
A.

Low IQ Score and Low GAF

Plaintiff claims the ALJ erred in failing to properly assess her low IQ under Listing 12.05 and
her low Global Assessment of Functioning (“GAF”) score. ECF No. 12 at 8-12. With this
argument, Plaintiff raises two issues: (1) whether the ALJ properly considered her low IQ score and
(2) whether the ALJ properly considered her low GAF score. Id.
First, Plaintiff claims the ALJ did not properly consider her low IQ score. ECF No. 12 at 911. Plaintiff specifically claims her low IQ score qualifies her as disabled under Listing 12.05. Id.

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Based upon her briefing, it also appears Plaintiff only claims she qualifies as disabled under subpart
C of Listing 12.05: “A valid verbal, performance, or full scale IQ of 60 through 70 and a physical
or other mental impairment imposing an additional and significant work-related limitation of
function.” (emphasis added). To her credit, Plaintiff does reference in her briefing one IQ
assessment where her “Working Memory” and full scale IQ score was placed in the range of 60
through 70. ECF No. 12 at 10 (Tr. 322-324). Indeed, on September 10, 2012, Plaintiff was assessed
as a part of a Mental Diagnostic Evaluation and Intellectual Assessment as having this lower IQ
score. (Tr. 322-324). Thus, the Court can assume the first requirement of Listing 12.05(C) has been
met.
Plaintiff, however, fails to establish that she also suffers from “a physical or other mental
impairment imposing an additional and significant work-related limitation of function.” This second
part of Listing 12.05(C) is also required for the Court to find Plaintiff’s mental impairment meets
the requirements of Listing 12.05(C). Plaintiff has the burden of demonstrating her impairment meet
all–not some–of the requirements of a Listing. 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”).
Here, by not demonstrating her impairments meet the requirements of the second part of
Listing 12.05(C), Plaintiff has not met her burden. Instead, in her briefing, Plaintiff supplies vague
generalizations such as the following: “In this case Plaintiff’s limitations imposed by her
impairments and related symptoms of difficulty walking, chronic pain, obesity, and low I.Q. and
mental impairments can be viewed as exertional limitations, since they affect her strength demands
such as sitting, standing, lifting, carrying, pushing, pulling and walking. Therefore, the rule
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contained in Appendix Two will determine whether the Plaintiff is disabled. 20 C.F.R. §
416.969A(b)(1992).” ECF No. 12 at 11. This “showing” is simply not sufficient to meet Plaintiff’s
burden. Accordingly, the Court will not address this issue further.
Second, Plaintiff claims the ALJ erred in considering one low GAF score. ECF No. 12 at
8-9. Plaintiff is correct that she was assessed as having a GAF score of 41-50. (Tr. 257).
Specifically, on December 14, 2010, Plaintiff was evaluated as a part of a Mental Diagnostic
Evaluation by Dr. Julie Schroeder Wallace, Ph.D. (Tr. 254-258). During this evaluation, Plaintiff
was found to have a GAF score of 41-50. (Tr. 257).
In this report, however, Dr. Wallace also stated she believed Plaintiff was malingering:
“Informal validity assessment techniques were employed. The claimant reported yes to experiencing
every suggested symptom exaggeration and atypical symptom pattern that the examiner asked about.
. . .” (Tr. 258). The fact Plaintiff was malingering certainly undermines the validity of Plaintiff’s
low GAF score.
Further, despite Plaintiff’s claim that the ALJ did not consider his low GAF score, the ALJ
did consider this low GAF score in his opinion. (Tr. 18). He noted this GAF score of 41-50 but also
found it was not reliable because Plaintiff was found to have been malingering at this examination
and because “the statements in Dr. Wallace’s report are inconsistent with the claimant’s testimony.”
(Tr. 17-18). Based upon these findings, the Court finds no basis for reversal on this issue.2

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It is also worth noting that in the two cases Plaintiff cites on this issue, Conklin v. Astrue, 360 F. App’x
704, 707 (8th Cir. 2010) and Pate-Fires v. Astrue, 564 F.3d 935, 944-45 (8th Cir. 2009), there were multiple low
GAF scores. In this case, Plaintiff references only one low GAF score. Upon review of the record, there may be one
other GAF score of 50 (Tr. 324), but this still does not establish the repeatedly low GAF scores that were present in
both Conklin and Pates-Fires.

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B.

Listing 1.02 (“Major Dysfunction of a joint(s) (due to any cause)”)

Plaintiff claims the ALJ erred in finding her impairments did not meet the requirements of
Listing 1.02. ECF No. 12 at 12-14. As Plaintiff herself notes, however, Listing 1.02 requires
evidence of a “gross anatomical deformity.” Id. Examples of such a deformity include “subluxation,
contracture, bony or fibrous ankylosis, instability.” Id.
In Plaintiff’s case, however, she has provided no evidence–or even argument–as to which
“gross anatomical deformity” she has. Accordingly, Plaintiff has not met her burden establishing
her impairments meet the requirements of Listing 1.02. See Johnson, 390 F.3d at 1070. Thus, this
Court will not address this issue further.
C.

ALJ’s Evaluation of Plaintiff’s Subjective Complaints and the Findings of
Her Treating Psychiatrist

Plaintiff claims the ALJ erred in evaluating her subjective complaints and the findings of her
treating psychiatrist. ECF No. 12 at 14-16. In her briefing, however, Plaintiff did not raise any
specific errors in the ALJ’s evaluation of either her subjective complaints or the findings of her
psychiatrist. Id. Thus, the Court will generally consider the ALJ’s evaluation of both Plaintiff’s
subjective complaints and the findings of Plaintiff’s treating psychiatrist.
i.

Plaintiff’s Subjective Complaints

Plaintiff claims the ALJ erred in evaluating her subjective complaints. ECF No. 12 at 14-16.
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.

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§ 416.929.3 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. Notably, the
ALJ discounted Plaintiff’s subjective complaints after finding the following: (1) Plaintiff can
perform a number of daily activities, including preparing “meals daily, cleans, and does laundry,”
has a driver’s license, and “was noted to have walked two miles in November 2011"; (2) Plaintiff
does not take her medication, including her medication for diabetes, “as she should” and is
noncompliant with treatment; (3) Plaintiff has been diagnosed with asthma but still continues to
smoke; (4) Plaintiff’s doctor found “she is used to working from morning to night and not quitting”
but she has less than $57,000.00 in lifetime earnings, which indicates she has been supplying
different stories regarding her ability to work to different people; and (5) Plaintiff “has applied for
and received unemployment benefits since she allegedly became disabled.” (Tr. 15-20). Based upon
these findings, because the ALJ’s credibility determination is supported by “good reasons,” it is
entitled to deference. See McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013).
As a final point on this issue, Plaintiff argues the ALJ erred in evaluating her alleged
prostitution. ECF No. 12 at 3. Specifically, Plaintiff alleges the “ALJ stated he believed Plaintiff
worked off the books as a prostitute.” Id. Plaintiff also argues that “[t]here is nothing in the record
that shows she was working as a prostitute.” Id. Plaintiff is, however, incorrect as to both claims.
First, the ALJ stated he did not believe she worked as a prostitute. In his opinion, the ALJ stated the
following: “I believe she probably has not worked off the books as a prostitute . . .” (Tr. 18)
(emphasis added). Second, the record does support a finding that she worked as a prostitute. Indeed,
on December 14, 2010, Plaintiff reported to Dr. Wallace that “[s]he prostituted herself for money
off and on during her periods of unemployment.” (Tr. 255). Thus, the Court finds Plaintiff’s
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arguments on this issue are meritless.
ii.

Plaintiff’s Treating Psychiatrist

Under this argument header, Plaintiff claims the ALJ erred by discounting the findings of her
treating psychiatrist. ECF No. 12 at 14-16. Plaintiff, however, does not provide any argument as
to what opinions from which psychiatrist were improperly discounted. Id. Indeed, it appears
Plaintiff does not have a treating psychiatrist. All of the mental examinations included in the record
are consultative examinations ordered at the direction of the SSA. Further, on December 14, 2010,
Plaintiff reported “[s]he has never received treatment for psychiatric issues.” (Tr. 254). Thus, the
Court can find no basis for reversal on this issue.
D.

ALJ’s RFC Determination

Plaintiff argues the ALJ erred in evaluating her RFC. ECF No. 12 at 16-17. Again, Plaintiff
raises broad allegations regarding her limitations without citing any evidence in support, whether
testimonial or medical. Id. In his opinion, the ALJ found Plaintiff retained the capacity to perform
a limited range of light work. (Tr. 15, Finding 5). The ALJ accounted for both physical and mental
limitations in assessing Plaintiff’s RFC. Id. Thus, the Court finds no basis for reversal on this issue.
E.

Hypothetical to the VE

Plaintiff claims the ALJ erred by supplying a defective hypothetical to the VE which did not
contain all of her limitations. ECF No. 12 at 17-19. In making this argument, Plaintiff again
challenges the ALJ’s assessment of her low IQ. Id. However, as stated previously, the ALJ did
provide mental limitations in his RFC assessment. Notably, the ALJ found the following: “Mentally,
due to her limited education and mild mental retardation, she is limited to unskilled work. Unskilled
work is work where interpersonal contact is only incidental to the work performed; any tasks could
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be learned by rote, contain few variables and require little judgment and any required supervision
would be simple, direct and concrete.” (Tr. 15). Plaintiff has not demonstrated her limitations are
any greater than those found by the ALJ. Accordingly, the Court finds no 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 27th day of January 2015.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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