Ayers v. Social Security Administration Commissioner

Filing 12

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

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
TIMOTHY AYERS
vs.

PLAINTIFF
Civil No. 6:13-cv-06145

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Timothy Ayers (“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 applications 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. 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’s applications for DIB and SSI were filed on April 4, 2012. (Tr. 11, 114-123).
Plaintiff alleged he was disabled due to a back problems, problems with right arm, and completely
blind in right eye. (Tr. 132). Plaintiff alleged an onset date of April 4, 2012. (Tr. 11). These
applications were denied initially and again upon reconsideration. (Tr. 51-61, 67-71). Thereafter,

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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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Plaintiff requested an administrative hearing on his applications and this hearing request was granted.
(Tr. 72).
Plaintiff’s administrative hearing was held on December 19, 2012. (Tr. 23-50). Plaintiff was
present and was represented by counsel, Charles Padgham, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Michael Gartman testified at this hearing. Id. At the time of this hearing,
Plaintiff was fifty-four (54) years old, which is defined as a “person closely approaching advanced
age” under 20 C.F.R. § 404.1563(d), and had a ninth grade education. (Tr. 28-30).
On January 7, 2013, the ALJ entered an unfavorable decision denying Plaintiff’s applications
for DIB and SSI. (Tr. 11-19). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through September 30, 2014. (Tr. 13, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 4, 2012, his alleged
onset date. (Tr. 19, Finding 2).
The ALJ also determined Plaintiff had the severe impairments of osteoarthritis and right
shoulder pain caused by possible rotator cuff injury. (Tr. 13, 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. 14, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 15-17). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to perform light work, except cannot perform overhead reaching with his right upper
extremity. (Tr. 15, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17, Finding 6). The ALJ

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found Plaintiff was unable to perform his PRW. Id. The ALJ, however, also determined there was
other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 1718, 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 bakery worker with
approximately 3,900 such jobs in Arkansas and 200,000 such jobs in the nation, counter clerk with
approximately 900 such jobs in Arkansas and 100,000 such jobs in the nation, and as a packing line
worker 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 April 4, 2012 through the date of the decision. (Tr. 18, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 7). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-3).
On December 19, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on January 7, 2014. ECF No. 8. Both Parties have filed appeal briefs.
ECF Nos. 10, 11. 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

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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
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his

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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 the RFC determination, and
(B) in failing to properly consider Plaintiff’s complaints of pain. ECF No. 10, Pgs. 2-7. In response,
the Defendant argues the ALJ did not err in any of his findings. ECF No. 11.
A. 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
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.

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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 light work, except
cannot perform overhead reaching with his right upper extremity. (Tr. 15, Finding 5). Plaintiff
argues the ALJ erred in this RFC determination. ECF No. 10, Pgs. 2-5. However, substantial
evidence supports the ALJ’s RFC determination.
On March 27, 2012, Plaintiff was seen by Dr. Jason Lofton. (Tr. 190-192). Dr. Lofton
indicated Plaintiff complained of being unable to lift his right arm above his chest, but it was not
caused by trauma. (Tr. 190). Dr. Lofton stated Plaintiff exercised six-to-seven times a week and was
in no acute distress. (Tr. 191). Dr. Lofton’s physical exam showed Plaintiff’s head, eyes, ears, and
nose were normal; neck was normal, with normal range of motion; lungs were clear; and cardiac
exam was normal. Id. Plaintiff’s neurological exam was normal, showing normal gait and no resting
tremor; legs and arms were normal, except for his right shoulder that had a limited range of motion.
Id. Plaintiff was diagnosed with a potential rotator cuff tear and was prescribed Ibuprofen. (Tr.
192).
On May 7, 2012, Dr. Robert Redd prepared an RFC Assessment. (Tr. 195-202). Dr. Redd
indicated Plaintiff had the RFC to lift or carry 20 pounds occasionally and 10 pounds frequently; to
stand, walk, or sit for about 6 hours in an 8-hour workday; and to push or pull without limitations,
other than as shown for lifting and carrying. (Tr. 196). Dr. Redd also stated Plaintiff had
manipulative limitations and could not do overhead reaching with his right arm. (Tr. 198).
On June 27, 2012, Plaintiff was seen by Dr. Danny Young complaining of back and shoulder
pain, denying any injury to his right arm or shoulder. (Tr. 207). Dr. Young diagnosed Plaintiff with
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right shoulder adhesive capsulitis, osteoarthritis, and right eye blindness. Id.
As shown by the above medical evidence, substantial evidence supports the ALJ’s RFC
determination finding Plaintiff capable of performing light work except cannot reach overhead.
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.
B. ALJ’s Credibility Determination
Plaintiff also claims the ALJ erred in his credibility determination. ECF No. 10. In response,
Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective complaints
pursuant to the directives of Polaski. ECF No. 11, Pages 4-6.
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

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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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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 her credibility as it related to the limiting effects
of her impairments and did not fully consider her 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 and 20 C.F.R. §
416.929, and stated inconsistencies between Plaintiff’s testimony and the record. (Tr. 15-17).
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
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comparable to those described by Plaintiff, (4) Plaintiff has not required regular treatment for any
impairment, (5) Plaintiff stopped working because his job was terminated, and (6) Plaintiff only used
over-the-counter medicines. 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
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 2nd day of February 2015.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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