Heard v. Social Security Administration Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 23, 2017. (mjm)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
HAWES HEARD IV
vs.

PLAINTIFF
Civil No. 6:16-cv-06037

NANCY BERRYHILL
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Hawes Heard IV (“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. 9.1 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 September 3, 2013. (Tr. 9, 180-189).
Plaintiff alleged he was disabled due to problems with his right hip and shoulder. (Tr. 222). Plaintiff
alleged an onset date of September 18, 2012. (Tr. 9). These 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. 138).

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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’s administrative hearing was held on November 19, 2014. (Tr. 33-71). Plaintiff was
present and was represented by counsel, Shannon Muse Carroll, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Dianne Smith testified at this hearing. Id. At the time of this hearing,
Plaintiff was fifty-four (54) years old and had a GED. (Tr. 37).
On January 15, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB and SSI. (Tr. 9-28). In this decision, the ALJ determined the Plaintiff last met the insured
status requirements of the Act on March 31, 2016. (Tr. 11, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since September 18, 2012, his
alleged onset date. (Tr. 11, Finding 2).
The ALJ determined Plaintiff had the severe impairments of osteoarthritis of the right hip,
history of right shoulder impingement, migraine headache, post-traumatic stress disorder (PTSD), and
depression. (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. 13-26). 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 a modified range of sedentary work with the ability to occasionally lift and carry or
push and pull ten pounds; sit for at least six hours in an eight-hour work day; stand or walk two hours
in an eight-hour work day; should avoid overhead reaching and lifting with the right dominant upper
extremity; can perform frequent fingering or handling with the left (non-dominant) upper extremity;
would require the use of a cane in ambulating to and from the work, and retains the ability to
understand, remember, carry out detailed instructions, and respond to changes in the workplace. (Tr.

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13-14, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 26, 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. 27,
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 a representative occupations such as lock component assembler with
1,800 such jobs in the region and 21,000 such jobs in the nation and semi-conductor checker with
2,500 such jobs in the region and 60,000 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 September 18, 2012,
through the date of the decision. (Tr. 28, 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 April 25, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on June 2, 2016. ECF No. 9. Both Parties have filed appeal briefs. ECF
Nos. 15, 16. 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 Court

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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

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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 find Plaintiff met
a Listing, (B) in his credibility analysis, and (C) in the RFC determination ECF No. 15, Pgs. 3-19.
In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 16.
A. Listings
The ALJ must determine whether Plaintiff has a severe impairment that significantly limits the
physical or mental ability to perform basic work activities. A medically determinable impairment or
combination of impairments is severe if it significantly limits an individual’s physical or mental ability
to do basic work activities. See 20 C.F.R. §§ 404.1521 and 416.921.
The ALJ found Plaintiff did suffer from impairments considered to be severe within the
meaning of the Social Security regulations. These impairments included osteoarthritis of the right hip,
history of right shoulder impingement, migraine headache, post-traumatic stress disorder (PTSD), and
depression. (Tr. 11, Finding 3). However, there was no substantial evidence in the record showing
Plaintiff’s condition was severe enough to meet or equal that of a listed impairment as set forth in the
Listing of Impairments. See 20 C.F.R. pt. 404, subpt. P, app.1. Plaintiff has the burden of establishing
that his impairment(s) meet or equal an impairment set out in the Listing of Impairments. See Sullivan
v. Zebley, 493 U.S. 521, 530-31 (1990). Plaintiff has not met this burden.
Plaintiff argues he meets a Listing under Section 1.02 for major dysfunction of a joint and 1.03

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for reconstructive surgery of a major weight bearing joint.2 ECF No. 15, Pgs. 3-12. Defendant argues
Plaintiff has failed to establish he meets theses Listings. ECF No. 16.
Impairments found under Listing 1.02 for major joint dysfunction requires evidence of:
major dysfunction of a joint 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, and findings on appropriate
medically acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joint, with involvement of one
major peripheral weight-bearing joint (i.e. hip, knee, or ankle), resulting
in an inability to ambulate effectively, as defined in 1.00B2b or
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.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02.
An “inability to ambulate effectively” is an extreme limitation of the ability to walk, i.e., an
impairment that interferes very seriously with the individual’s ability to independently initiate, sustain,
or complete activities. Ineffective ambulation is having insufficient lower extremity functioning to
permit independent ambulation without the use of a hand-held assistive device(s) that limits the
functioning of both upper extremities. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2b(1). To
ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a
sufficient distance to be able to carry out activities of daily living, and they must be able to travel
without companion assistance to and from a place of employment or school. See 20 C.F.R. pt. 404,
subpt. P, app. 1, § 1.00B2b(2). Examples of ineffective ambulation include, but are not limited to,
the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a
block at a reasonable pace on rough or uneven surfaces, the inability to use standard public

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Plaintiff also argues meeting Listings 12.04 and 12.06, however, Plaintiff did not discuss the requirements
of these Listings or provide any explanation how the evidence shows Plaintiff met the requirements of these Listings.
Because Plaintiff did not present any specific argument or support for the contention that his impairments met or
equaled Listings 12.04 or 12.06, the Court will not address this argument.

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transportation, the inability to carry out routine ambulatory activities, such as shopping and banking,
and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. Id.
In this matter, Plaintiff has failed to establish he is unable to ambulate effectively. Plaintiff has
no evidence he has to use a walker, two crutches, or two canes to walk, or that a physician prescribed
these items. Further, Plaintiff presented no diagnostic medical evidence showing he has a major
dysfunction of a joint characterized by gross anatomical deformity, and findings on medically
acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joints.
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.
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.
To meet listing 1.03, Plaintiff must show he underwent a reconstructive surgery or surgical
arthrodesis of a major weight-bearing joint with inability to ambulate effectively and return to effective
ambulation did not occur, or is not expected to occur within twelve months of onset. See 20 C.F.R.
Pt. 404, Subpt. P, App. 1, listings 1.03. As mentioned above, the record does not support a finding
Plaintiff had ineffective ambulation. Although Plaintiff did undergo a rotator cuff repair, the record
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also shows Plaintiff regained full active range of motion in his shoulder post-operatively. (Tr. 961).
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.1.
B. ALJ’s Credibility Determination
Plaintiff claims the ALJ erred in his credibility determination. ECF No. 15, Pgs. 12-16. In
response, Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective
complaints pursuant to the directives of Polaski. ECF No. 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. § 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

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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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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 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. 15-26). 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) No persuasive evidence of medication side effects, (4) No physician
has placed a level of limitation on Plaintiff’s activities comparable to those described by Plaintiff, (5)
Plaintiff’s non compliance with medical treatment, (6) employment following filing application for
disability, and (7) pursuit of training for heating and air conditioner repair. Id.
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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.
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 to perform a modified range of
sedentary work with the ability to occasionally lift and carry or push and pull ten pounds; sit for at least
six hours in an eight-hour work day; stand or walk two hours in an eight-hour work day; should avoid
overhead reaching and lifting with the right dominant upper extremity; can perform frequent fingering
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or handling with the left (non-dominant) upper extremity; would require the use of a cane in
ambulating to and from the work, and retains the ability to understand, remember, carry out detailed
instructions, and respond to changes in the workplace. (Tr. 13-14, Finding 5). Plaintiff argues the ALJ
erred in this RFC determination. ECF No. 15, Pgs. 16-20. However, substantial evidence supports
the ALJ’s RFC determination.
Plaintiff alleged disability based on problems with his right hip and shoulder. However, the
ALJ discussed at length the medical record including physical examination that showed Plaintiff had
bilateral negative straight leg raising; normal gait and coordination; intact reflexes; unhindered grip
strength; and no evidence of muscle weakness, muscle atrophy, or sensory abnormalities. (Tr. 18-19,
985).
Further, imaging of Plaintiff’s hip revealed mild to moderate degenerative changes and some
impingement, but was otherwise normal. (Tr. 19, 741). Imaging of Plaintiff’s right shoulder revealed
joint separation with early osteoarthritis, but otherwise unremarkable. (Tr. 19, 986). Finally, images
of Plaintiff’s cervical spine showed Plaintiff had moderate degenerative changes between levels C 5
and C7, but no compression deformity or subluxation. (Tr. 19, 741).
From a mental health standpoint, ALJ noted Plaintiff had denied any suicidal or homicidal
ideation or psychotic symptoms to his physician. (Tr. 668, 876, 922). Also, Plaintiff’s mental status
examinations were often within normal limits with proper orientation, normal speech, rational and
goal-directed thought process, and normal thought content. (Tr. 642-644, 668, 673, 876, 989-992,
1007).
Finally, Plaintiff underwent a consultative psychological examination on May 21, 2013 that
indicated Plaintiff could perform day-to-day adaptive functioning, communicate and interact in a
socially adequate manner, communicate intelligibly and effectively, cope with the cognitive demands
of work-like tasks, and persist and complete tasks within an acceptable time frame. (Tr. 988-992).
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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.
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 23rd day of May 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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