Walters v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 2, 2015. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
TIMOTHY WALTERS

PLAINTIFF

vs.

Civil No. 6:13-cv-06143

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Timothy Walters (“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 December 22, 2010. (Tr. 10, 115-122).
Plaintiff alleged he was disabled due to bipolar, depression, anxiety disorder, panhypopituitarism,
back pain, hypothyroidism, dyslipidemia, hernia, and PUD. (Tr. 136). Plaintiff alleged an onset date
of October 30, 2009.

(Tr. 10).

These applications were denied initially and again upon

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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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reconsideration. (Tr. 54-60, 65-68). Thereafter, Plaintiff requested an administrative hearing on his
applications and this hearing request was granted. (Tr. 69).
Plaintiff had an administrative hearing on July 2, 2012. (Tr. 25-49). Plaintiff was present
and was represented by counsel, Shannon Muse Carroll, at this hearing. Id. Plaintiff, his ex-wife
Linda Walters, and Vocational Expert (“VE”) Elizabeth Clem testified at this hearing. Id. At the
time of this hearing, Plaintiff was fifty (50) years old, which is defined as a “person closely
approaching advanced age” under 20 C.F.R. § 404.1563(d), and had completed the eighth grade.
(Tr. 29-30).
On November 27, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB and SSI. (Tr. 10-19). In this decision, the ALJ determined Plaintiff met the
insured status requirements of the Act through December 31, 2012. (Tr. 12, Finding 1). The ALJ
also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since October 30,
2009, his alleged onset date. (Tr. 12, Finding 2).
The ALJ determined Plaintiff had the severe impairments of degenerative disc disease of the
lumbar spine and major depressive disorder. (Tr. 12, 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. 13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 13-17). 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, except the work would require no more than occasional performance of each
postural function. Further, Plaintiff would be able to perform unskilled work where interpersonal

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contact would be incidental to the work performed; the complexity of the tasks would be learned by
rote, with few variables, little judgment; and supervision would be simple, direct, and concrete. (Tr.
13, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17-18, Finding 6). The
ALJ found Plaintiff was unable to perform his PRW as a logging operator. Id. The ALJ, however,
also determined there was other work existing in significant numbers in the national economy
Plaintiff could perform. (Tr. 18, 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 machine operator with approximately 3,600 such jobs in Arkansas and 180,000 such jobs
in the nation, janitorial work with approximately 4,500 such jobs in Arkansas and 500,000 such jobs
in the nation, and as a hand packer with approximately 2,900 such jobs in Arkansas and 300,000
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 October 30, 2009 through the date of the decision. (Tr.
19, Finding 11).
On December 16, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on December 16, 2013. ECF No. 5. 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)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than

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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
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)

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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 consider the
severity of Plaintiff’s auto-immune impairments, (B) in failing to properly consider Plaintiff’s
complaints of pain, (C) in the weight given the opinions of Plaintiff’s physician, (D) in failing to
consider the effects of Plaintiff’s impairments in combination, and (E) in failing to present a
complete hypothetical to the VE. ECF No. 12, Pgs. 9-20. In response, the Defendant argues the ALJ
did not err in any of his findings. ECF No. 13.
A. Severity of Plaintiff’s Auto-Immune Impairments
Plaintiff argues the ALJ erred because he disregarded evidence Plaintiff had auto-immune
diseases (thyroid problem), chronic back pain, and tremors of his hands. ECF No. 12, Pg. 9-14.
Plaintiff also seems to argue he meets a Listing associated with these conditions. Id.
As for Plaintiff’s claims as it relates to his auto-immune condition, Plaintiff relies on
medical records outside the relevant period to support his allegation. Plaintiff references records
from 1996 through 2003. ECF No. 12, Pgs. 10-12. Evidence concerning ailments outside the

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relevant time period can support or elucidate the severity of a condition; however, such evidence
cannot serve as the only support for disability. See Pyland v. Apfel, 149 F.3d 873, 878 (8th Cir.
1998). Plaintiff alleged disability began on October 30, 2009. (Tr. 115, 117). Further, Plaintiff did
not seek medical treatment for any of his alleged impairments during the relevant period, other than
obtaining medication refills, suggesting that his impairments were controlled with medications. (Tr.
339-340, 397-399). There must be proof of disability during the time for which it is claimed.
Plaintiff also argues he meets Listing 1.00(B)(2)(c) by having an inability to perform fine and
gross movements. An “inability to perform fine and gross movements effectively” means an extreme
loss of function of both upper extremities; i.e., an impairment(s) that interferes very seriously with
the individual's ability to independently initiate, sustain, or complete activities. To use their upper
extremities effectively, individuals must be capable of sustaining such functions as reaching,
pushing, pulling, grasping, and fingering to be able to carry out activities of daily living. Examples
of inability to perform fine and gross movements effectively include, but are not limited to, the
inability to prepare a simple meal and feed oneself, the inability to take care of personal hygiene, the
inability to sort and handle papers or files, and the inability to place files in a file cabinet at or above
waist level. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2c(2).
There is no credible evidence showing Plaintiff is prohibited from ambulating effectively
with a major peripheral joint in each upper extremity resulting in inability to perform fine and gross
movements effectively. Whether Plaintiff meets a listed impairment is a medical determination and
must be established by medically acceptable clinical and laboratory diagnostic techniques. See 20
C.F.R. §§ 404.1525(c), 404.1526(b), 416.925(c), 416.926(b). Plaintiff has not met this burden. I
find substantial evidence supports the ALJ’s determination that Plaintiff did not have an impairment
or combination of impairments equal to one listed in 20 C.F.R. pt. 404, subpt. P, app.
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B. 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. 13.
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.

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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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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. 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. 13-17). 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’s absence of significant 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
complaints of pain.

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C. 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]
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. Hiram Ward in
assessing Plaintiff’s RFC. ECF No. 12, Pgs. 16-18. However, the ALJ properly did not assign any
significance to Dr. Ward’s opinion, regarding Plaintiff’s ability to work.
Plaintiff’s argument centers on the opinions set forth by Dr. Ward from December 17, 2010.
(Tr. 334). Plaintiff was seen by Dr. Ward for the first time on December 17, 2010, and told Dr.
Ward he was “trying to get his disability on social security” Id. Dr. Ward indicated a diagnosis of
panhypopituritism with hypothyroidism, hypogonadism, chronic back pain with minimal spurring
by x-ray, legs and feet hurting all the time - undiagnosed, hypertension, dyslipidemia, hiatus hernia,
and peptic ulcer disease. Id.
Dr. Ward stated Plaintiff was not presently taking any medications for his conditon because
he could not afford them, and indicated Plaintiff was unable to work. (Tr. 334). This statement is
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inconsistent with his exam which stated his physical examination was unremarkable for any
disabilities; chest was clear and heart was regular with no cardiac murmur; tender epigastrium with
no rebound tenderness; bowel sounds normal; no dependent edema; and no paralysis or sensation
loss. Id. Plaintiff only returned to see Dr. Ward on two more occasions on August 4, 2011 and
December 25, 2012. (Tr. 399). These records dealt with medications and refills. Id.
The medical evidence does not support Dr. Ward’s opinion that Plaintiff is unable to work.
The ALJ committed no error in his treatment of medical opinions from Dr. Ward.
D.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
of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.” (Tr. 13, Finding 4) (emphasis added). The ALJ also found, “after
consideration of the entire record,” the Plaintiff had the RFC to perform light work with some
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. 18,
Finding 10).
These statements are sufficient under Eighth Circuit precedent to establish that the ALJ
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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.
E. 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
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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
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, except the work would require
no more than occasional performance of each postural function. Further, Plaintiff would be able to
perform unskilled work where interpersonal contact would be incidental to the work performed; the
complexity of the tasks would be learned by rote, with few variables, little judgment; and supervision
would be simple, direct, and concrete. (Tr. 13, 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. 44-48). The ALJ found a significant number of jobs existed
in the national economy which Plaintiff could perform. (Tr. 18, Finding 10). Relying on the VE
testimony, the ALJ found Plaintiff was not under a disability as defined by the Act. (Tr. 19, 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
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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.
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 2nd day of February 2015.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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