Burr v. Social Security Administration Commissioner

Filing 14

JUDGMENT AFFIRMING THE DECISION OF THE COMMISSIONER and Plaintiffs case is dismissed with prejudice as set forth in the 13 Memorandum Opinion. Signed by Honorable Barry A. Bryant on February 1, 2017. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JOHN LLOYD BURR
vs.

PLAINTIFF
Civil No. 6:16-cv-06015

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
John Lloyd Burr (“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 Income 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. 7.1 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 March 11, 2013. (Tr. 9, 186-195).
Plaintiff alleged he was disabled due to congestive heart failure, obstructive sleep apnea, morbid
obesity diabetes, high blood pressure, hyperventilation syndrome, cellulitis, wounds on right leg, and
hypertension. (Tr. 211). Plaintiff alleged an onset date of May 1, 2009. (Tr. 9, 186, 190). These

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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 were denied initially and again upon reconsideration. (Tr. 9). Thereafter, Plaintiff
requested an administrative hearing on his applications and this hearing request was granted. (Tr.
139-140).
Plaintiff’s administrative hearing was held on July 29, 2014. (Tr. 24-69). Plaintiff was
present and was represented by counsel, Hans Pullen, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Mack Welch testified at this hearing. Id. At the time of this hearing, Plaintiff was
forty-seven (47) years old and had a high school education with two years of college. (Tr. 30, 35).
On November 7, 2014, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB and SSI. (Tr. 9-19). In this decision, the ALJ determined the Plaintiff met the
insured status of the Act through December 31, 2009. (Tr. 11, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 1, 2009, his alleged
onset date. (Tr. 11, Finding 2).
The ALJ determined Plaintiff had the severe impairments of bilateral degenerative joint
disease of knee, diabetes mellitus, chronic obstructive pulmonary disease (COPD), obesity,
hypoventilation syndrome, obstructive sleep apnea, hypertension, congestive heart failure, and
morbid obesity. (Tr. 11, 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. 12, 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. Second, the ALJ determined Plaintiff retained
the RFC for sedentary work with occasional, bending, stooping, and crouching in a controlled setting

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with no extreme heat, cold, heavy chemicals, dust, or fumes. (Tr. 13, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17, Finding 6). The ALJ
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. 18,
Finding 10). The ALJ based this 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 representative occupations such as a front desk receptionist with 14,000 such jobs
in the region and 700,000 such jobs in the nation, and inventory clerk with 40,000 such jobs in the region
and 200,000 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 May 1, 2009, through the date of the decision. (Tr.
19, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 5). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-4).
On February 10, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on February 19, 2016. ECF No. 7. Both Parties have filed appeal briefs.
ECF Nos. 11, 12. 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).
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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:
Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to properly evaluate
his obesity claim, (B) failed to properly evaluate Plaintiff’s mental impairments, (C) in the RFC
determination, and (D) in his credibility analysis. ECF No. 11, Pgs. 3-15. In response, the
Defendant argues the ALJ did not err in any of his findings. ECF No. 12.
A. Obesity
Social Security Ruling (“SSR”) 02-1p provides guidance for evaluating obesity. It states
obesity can cause a limitation of function. The functions likely to be limited depend on many
factors, including where the excess weight is carried. Id. However, an individual may have
limitations in any of the exertional functions such as siting, standing, walking, lifting, carrying,
pushing, and pulling. Id. Obesity may also affect the ability to do postural functions, such as
climbing, balancing, stooping, and crouching. Id. SSR 02-1p further explains that the combined
effects of obesity with other impairments may be greater than might be expected without obesity
providing “[f]or example, someone with obesity and arthritis affecting a weight-bearing joint may
have more pain and limitation than might be expected from the arthritis alone.”
In the present case, the ALJ acknowledged Plaintiff suffered from morbid obesity, with a

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mass body index of that ranged from 54.25 to 65.10. (Tr. 13). He also discussed the evidence of
record, considering his impairments in combination, rather than singularly. (Tr. 12). It is clear the
ALJ properly considered Plaintiff’s obesity when concluding he could perform only sedentary with
occasional, bending, stooping, and crouching in a controlled setting with no extreme heat, cold,
heavy chemicals, dust, or fumes. There were no additional limitations that were imposed by the
combination of his obesity and other impairments.
B. Mental Impairments
Plaintiff argues the ALJ ignored his mental impairments and should have further developed
the record regarding the alleged mental disorder of anxiety and depression by ordering a mental
evaluation. However, the ALJ was not required to develop the record regarding the alleged mental
impairments.
To begin with, the reports Plaintiff filed with his applications for benefits did not allege
anxiety or depression as a basis for disability. (Tr. 211). Also, in function reports Plaintiff
completed on March 22, 2013, he indicated he did not have any problems getting along with others,
could pay attention all day, finished what he started, followed written and spoken instructions, got
along well with authority figures, had never been fired or laid off from a job because of problems
getting along with other people, handled stress “well,” handled changes in routine “good,” and did
not notice any unusual behavior or fears. (Tr. 246-248). Furthermore, Plaintiff did not allege at the
hearing before the ALJ that he had disabling mental impairments or testify that any mental
impairments caused any work-related limitations. (Tr. 47-62).
Although the ALJ is required to fairly and fully develop the record, an ALJ is not obligated
to investigate a claim not presented at the time of the application for benefits and not offered at the
hearing as a basis for disability. See Halverson v. Astrue, 600 F.3d 922, 934 (8th Cir. 2010).
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C. 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.
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 sedentary work with occasional,
bending, stooping, and crouching in a controlled setting with no extreme heat, cold, heavy chemicals,
dust, or fumes. (Tr. 13, Finding 5). Plaintiff argues the ALJ erred in this RFC determination. ECF
No. 11, Pgs. 10-13. However, substantial evidence supports the ALJ’s RFC determination.
The ALJ’s decision indicates he considered the medical record regarding Plaintiff’s alleged
impairments and provided reasons why the alleged impairments would not result in disabling
limitations. (Tr. 13-17). In his decision, the ALJ accounted for Plaintiff’s obesity, knee pain,
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respiratory and cardiovascular conditions, diabetes, hypertension, and sleep apnea by restricting
Plaintiff to sedentary work. Id.
As the ALJ pointed out, Plaintiff did not seek treatment for his conditions until nearly two
and a half years following his alleged onset date. (Tr. 16). On October 7, 2012, Plaintiff was
admitted for treatment of cellulitis and an abscess on his right leg and developed daytime
somnolence and respiratory failure, but improved with treatment. (Tr. 314). Plaintiff stated he had
weight gain in two years from 300 to his current weight of 472 pounds. (Tr. 304). Plaintiff was
diagnosed as morbidly obese, and was assessed with severe OSA and alveolar hypoventilation
syndrome. (Tr. 304-306). Plaintiff had a follow-up exam on October 23, 2012. (Tr. 346-356).
Plaintiff’s leg was doing better, had no fever, bilateral leg swelling had improved, and although he
had been diagnosed with sleep apnea, he denied increased daytime sleepiness since starting the
BIPAP and was set to start the CPAP. (Tr. 348). The cardiovascular examination was normal and
pulmonary and chest exams were normal. (Tr. 351).
On May 2, 2013, x-rays of Plaintiff’s right knee showed moderate to severe medial joint
space narrowing and mild degenerative changes and his left knee showed moderate medial and
lateral joint space narrowing. (Tr. 429). On July 26, 2013,was seen at Mercy Clinic. (Tr. 416-421).
He was diagnosed with uncontrolled diabetes mellitus with complications, intentional weight loss,
“super-super” obesity with a weight of 403 pounds, depressive disorder, degenerative joint disease
of knee and bilateral pain. (Tr. 416). Plaintiff denied back, neck, or joint pain or swelling and
denied chest pain or dyspnea on exertion, or any respiratory symptoms such as shortness of breath,
cough, or wheezing. (Tr. 419).
On November 21, 2013, Plaintiff returned to the ER complaining of gradually worsening
chest pain with fatigue, shortness of breath, and arthralgias. (Tr. 508). Plaintiff had normal range
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of motion in neck, normal cardiovascular and pulmonary findings, no edema, and normal
neurological findings with no skin issues. (Tr. 510, 511). On November 26, 2013, Plaintiff was seen
by Dr. Donald Blagdon and noted to have very symptomatic arthritic knees. (Tr. 592). His
examination revealed weight of 399, normal range of motion of neck, normal cardiovascular
findings, no respiratory distress, and normal respiratory effort. Id.
Furthermore, the opinions of two stage agency physicians also supported the ALJ’s RFC
finding. (Tr. 17). Dr. Steven Strode and Dr. Judith Forte, each found the medical evidence of record
supported the RFC for sedentary work. Id. Finally, Plaintiff’s reported daily living activities
supported the ALJ’s RFC finding. (Tr. 17).
As shown by the above medical evidence, substantial evidence supports the ALJ’s RFC
determination. 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.
D. ALJ’s Credibility Determination
Plaintiff claims the ALJ erred in his credibility determination. ECF No. 11, Pgs. 13-15. In
response, Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective
complaints pursuant to the directives of Polaski. ECF No. 12.
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
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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,

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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
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
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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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
inconsistent with the record, (3) Effectiveness of medication for his symptoms, (4) No physician has
placed a level of limitation on Plaintiff’s activities comparable to those described by Plaintiff, (5)
Plaintiff stopped working because his job ended and not due to disability, and (6) Delay in seeking
treatment after onset date. 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.
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 1st day of February 2017.

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

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