Reese v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 18, 2015. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
Civil No. 6:14-cv-06010
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Cynthia Reese (“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 application for
Disability Insurance Benefits (“DIB”) and period of disability under Title II 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.
Plaintiff protectively filed her current disability application on August 4, 2011. (Tr. 11, 111-
112). In her application, Plaintiff alleges being disabled due to neck and lower back degenerative
disc disease, spinal cord stenosis, bulging discs, cysts, severe pain in both arms, numbness in both
arms, and “tingling” in both arms and legs. (Tr. 135). Plaintiff alleges an onset date of April 20,
2011. (Tr. 11). This application was denied initially and again upon reconsideration. (Tr. 57-58).
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.”
Thereafter, on October 22, 2012, the ALJ held an administrative hearing on Plaintiff’s
application. (Tr. 28-56). This hearing was held in Hot Springs, Arkansas. Id. Plaintiff was present
and was represented by Shannon Muse Carroll at this hearing. Id. Plaintiff and Vocational Expert
(“VE”) James E. Wallace testified at this hearing. Id. During this hearing, Plaintiff testified she was
fifty-six (56) years old, which is defined as a “person of advanced age” under 20 C.F.R. §
404.1563(e) (2008). (Tr. 34).
On January 22, 2013, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s application. (Tr. 8-23). The ALJ found Plaintiff last met the insured
status requirements of the Act through June 30, 2015. (Tr. 13, Finding 1). The ALJ found Plaintiff
engaged in Substantial Gainful Activity (“SGA”) since April 20, 2011, her alleged onset date, but
she had no reported income for the year 2012. (Tr. 13-14, Finding 2). The ALJ determined Plaintiff
had the following severe impairments: back and spine disorder and osteoarthrosis. (Tr. 14-16,
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. 16, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 16-22, 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) except that the claimant may occasionally lift and carry 20 pounds
and she may frequently lift and carry 10 pounds; the claimant may stand and walk
about 6 hours in an 8-hour workday; the claimant may sit about 6 hours in an 8-hour
workday; the claimant may occasionally stoop and crouch; and the claimant cannot
sustain work without an option to sit/stand at will.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 22-23, Finding 6). The
VE testified at the administrative hearing regarding this issue. (Tr. 23). Based upon that testimony,
the ALJ determined Plaintiff retained the capacity to perform her PRW as a travel agent (sedentary,
skilled). Id. Because Plaintiff retained the capacity to perform her PRW, the ALJ determined
Plaintiff had not been under a disability, as defined in the Act, at any time from April 20, 2011
through the date of the ALJ’s decision or through January 22, 2013. (Tr. 23, Finding 7).
Thereafter, Plaintiff requested the review of the Appeals Council. (Tr. 7). On December 27,
2013, the Appeals Council denied this request for review. (Tr. 1-3). On January 27, 2014, Plaintiff
filed her Complaint in this matter. ECF No. 1. The Parties consented to the jurisdiction of this
Court on January 28, 2014. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 10-11.
This case is now ready for decision.
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).
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
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).
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 10. Specifically, Plaintiff claims the following: (1) the
ALJ erred in finding her impairments did not meet the requirements of Listings 1.02 and 1.04; (2)
the ALJ erred in finding she had the RFC for light work; and (3) the ALJ erred by failing to present
her mental impairments in a hypothetical to the V.E. Id. The Court will consider each of Plaintiff’s
arguments for reversal.
Listing 1.02 and Listing 1.04
Plaintiff claims her impairments meet the requirements of Listings 1.02 and 1.04. ECF No.
10 at 12-15. Listing 1.02 requires the following:
1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross
anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with signs of limitation of motion or
other abnormal motion of the affected joint(s), and findings on appropriate medically
acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the
affected joint(s). With: A. Involvement of one major peripheral weight-bearing joint
(i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in
1.00B2b; OR B. Involvement of one major peripheral joint in each upper extremity
(i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross
movements effectively, as defined in 1.00B2c.
Listing 1.04 requires the following:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or the
spinal cord. . . .
In her briefing, Plaintiff claims she meets the requirements of both of these Listings. ECF No. 10
at 12-14. In support of this claim, Plaintiff references her medical records. Id. Specifically, her
medical records demonstrate she has “[l]arge broad bulging disk,” “severe canal stenosis,” and “a
synovial cyst,” but these medical records do not demonstrate her alleged impairments meet the stated
requirements of Listings 1.02 and 1.04.
For instance, Listing 1.02 requires a “gross anatomical deformity,” and Plaintiff has not
provided which “gross anatomical deformity” she has. Likewise, Listing 1.04 requires “compromise
of a nerve root” or “the spinal cord,” and Plaintiff has not demonstrated her spinal stenosis or disc
bulging result in a “compromise of a nerve root.” Plaintiff has the burden of establishing her
impairments meet all the requirements of a given Listing. See Johnson v. Barnhart, 390 F.3d 1067,
1070 (8th Cir. 2004). Here, the Court finds Plaintiff has not met her burden of demonstrating her
impairments meet the requirements of either Listing 1.02 or Listing 1.04. Thus, this Court will not
address this issue further.
Plaintiff claims the ALJ erred in finding she retains the capacity to perform a limited range
of light work. ECF No. 10 at 14-17. In support of this claim, Plaintiff references the fact she goes
to a pain clinic, takes strong pain medication, and was assessed has having a mood disorder, anxiety
disorder, and a panic disorder. ECF No. 10 at 15-17.
The Court has reviewed the ALJ’s unfavorable decision in this case. Upon review, the Court
finds no basis for reversal on this issue. In reviewing this issue, the Court will first consider whether
the ALJ properly evaluated her subjective complaints; and second, the Court will consider the
medical records Plaintiff referenced in her briefing.
Plaintiff’s Subjective Complaints
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 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.
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.
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).
In the present action, the ALJ fully complied with Polaski. (Tr. 14-22). Notably, the ALJ
considered her daily activities and found that after her alleged onset date, Plaintiff engaged in a
number of daily activities:
The claimant reported in her Adult Function Report, dated September 12, 2011, that
she cared for an elderly gentleman who was in bed when she arrived and when she
left her shift, which was from 7 p.m to 7 a.m. from Monday through Thursday each
week. The claimant reported that she drove 45 minutes to get to work. The claimant
also reported that she does some cooking and laundry for her husband. The claimant
reported that her mental impairments do not interfere with her ability to perform her
personal care. . . . The claimant reported that she does light cleaning such as dusting,
loading the dishwasher, and laundry. The claimant also reported that she goes
outside everyday; she is able to go out alone; and when going out she travels by
driving a car. . . .
The ALJ also determined there were several inconsistencies between Plaintiff’s subjective
complaints and the record in this case. (Tr. 14-22). Notably, the ALJ found at the administrative
hearing in Plaintiff’s case in October of 2012 that she reported having side effects from her
Hydrocodone medication. (Tr. 21). However, “every month from October 2011 through September
2012 (close to the hearing date), the claimant continuously told Dr. Warren that she was not having
any side effects from the Hydrocodone, which he repeatedly prescribed monthly for the claimant.”
Id. The ALJ also found “the claimant reported [during her appointments] that her pain was a 4 or
5 on a scale from 0 to 10 with 10 being the most severe . . . whereas at the hearing, she testified that
she has constant shooting pain in her neck.” Id. Based upon these findings, because the ALJ
supplied “good reasons” for discounting Plaintiff’s subjective complaints, the Court finds no basis
for reversal on this issue. See Turpin v. Colvin, 750 F.3d 989, 993 (8th Cir. 2014) (recognizing a
court defers to the ALJ’s evaluation of the claimant’s credibility as long as it is supported by good
reasons and substantial evidence) (internal citation omitted).
Plaintiff’s Medical Records
Plaintiff claims her medical records demonstrate she is disabled. ECF No. 10 at 15-17.
Specifically, Plaintiff claims a diagnostic assessment by Dr. Shamshad Haroon, M.D. demonstrates
she is disabled. (Tr. 256-265). However, in this report, although Dr. Haroon did find Plaintiff
suffered from a number impairments, such as a mood disorder (severe, recurrent), sleep disorder,
anxiety disorder, and panic disorder with agoraphobia, Dr. Haroon also found Plaintiff was
malingering: “Cynthia presented with exaggerated symptoms. Symptoms are not congruent.
Objective examination did not match the projected symptoms.” (Tr. 264).
Further, Dr. Haroon also found Plaintiff could work: “She [Plaintiff] appeared to be high
functioning, although seemed to have some physical pain, but in MD’s opinion, has enough
intellectual capability to work in non-physically demanding position to support herself.” (Tr. 265).
Thus, Dr. Haroon’s findings certainly do not support Plaintiff’s claim of being disabled.
As a final point, in considering Plaintiff’s medical records, the ALJ also noted “that none of
the claimant’s treating doctors have offered an opinion that the claimant was disabled or made any
statement or recommendation that the claimant was unable to work at an SGA level.” (Tr. 21). The
Court finds this fact is also significant. Plaintiff has offered no evidence to contradict the ALJ’s
finding on this issue. ECF No. 10. Thus, based upon the ALJ’s review of Plaintiff’s subjective
complaints and medical evidence, the Court finds the ALJ’s RFC determination is supported by
substantial evidence in the record and finds no basis for reversal on this issue.
Hypothetical to the V.E.
Plaintiff claims the ALJ erred by supplying a defective hypothetical to the VE which did not
contain all of her limitations. ECF No. 10 at 17-18. In making this claim, Plaintiff again focuses
on the ALJ’s assessment of her RFC. Id. As noted above, the ALJ’s RFC determination is
supported by substantial evidence in the record.
Further, because Plaintiff’s alleged limitations were not supported by the record in this case,
the ALJ was not required to include those limitations in the hypothetical to the VE. See Hulsey v.
Astrue, 622 F.3d 917, 922 (8th Cir. 2010) (“A vocational expert’s testimony constitutes substantial
evidence when it is based on a hypothetical that accounts for all of the claimant’s proven
impairments”) (internal citation omitted) (emphasis added). Accordingly, the Court finds no basis
for reversal on this issue.
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 18th day of February 2015.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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