Farmer v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on November 20, 2017. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
CYNTHIA FARMER
vs.

PLAINTIFF
Civil No. 6:16-cv-06105

NANCY BERRYHILL
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Cynthia Farmer (“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 her 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. 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 applications for DIB and SSI were filed on February 7, 2014. (Tr. 8, 199-213).
Plaintiff alleged she was disabled due to due to anxiety; bipolar depression; chronic diarrhea;
difficulty sleeping; history of substance abuse; low back and hip degenerative joint disease; major
depressive mood disorder; destructive fits of anger and cursing; an inability to communicate with
others; an inability to leave the house or be in public; and a fear of bathtubs, showers, and other
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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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water sources. (Tr. 247). Plaintiff alleged an onset date of April 16, 2013. (Tr. 8). These
applications were denied initially and again upon reconsideration. Id. Thereafter, Plaintiff requested
an administrative hearing on her applications and this hearing request was granted. (Tr. 148).
Plaintiff’s administrative hearing was held on April 20, 2015. (Tr. 36-62). Plaintiff was
present and was represented by counsel, Sherri McDonough, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Charles Turner testified at this hearing. Id. At the time of this hearing,
Plaintiff was forty-two (42) years old and was a high school graduate, with some college. (Tr. 3839).
On August 14, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s applications
for DIB and SSI. (Tr. 8-22). In this decision, the ALJ determined the Plaintiff met the insured status
requirements of the Act through March 31, 2018. (Tr. 10, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 16, 2013, her alleged
onset date. (Tr. 10, Finding 2).
The ALJ determined Plaintiff had the severe impairments of back pain, anxiety, 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. 11, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 13-20). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC for sedentary work, except can only occasionally climb, balance, stoop, bend, crouch, kneel,
or crawl; and restricted to work where interpersonal contact is incidental to the work performed;
complexity of tasks is learned and performed by rote with few variables and little judgment; and
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supervision required is simple, direct, and concrete. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 20, Finding 6). The ALJ
found Plaintiff was unable to perform her PRW. Id. The ALJ, however, also determined there was
other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 21,
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 assembly work with 160,000 such
jobs in the nation and inspecting work with 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
April 16, 2013, through the date of the decision. (Tr. 21, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 28). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-4).
On October 21, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on October 25, 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).
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
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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
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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 find Plaintiff met
a Listing, (B) in his credibility determination, and (C) in assessing Plaintiff’s RFC. ECF No. 11,
Pgs. 7-20. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No.
12.
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 back pain, anxiety, 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 her 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 first argues she meets a Listing under Section 1.02 for major dysfunction of a joint
and 1.04 for disorders of the spine. ECF No. 11, Pgs. 2-9. Defendant argues Plaintiff has failed to
establish she meets theses Listings. ECF No. 12.
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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
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 she is unable to ambulate effectively. Plaintiff
has no evidence she has to use a walker, two crutches, or two canes to walk, or that a physician
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prescribed these items. Further, Plaintiff presented no diagnostic medical evidence showing she 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. In fact, the medical evidence shows Plaintiff’s had no significant midline
lumbar tenderness, no significant facet joint tenderness, moderate bilateral sacroiliac joint
tenderness; normal extremities with no deformity and normal full range of motion of all joints; and
normal reflexes, coordination, and muscle strength. (Tr. 16, 506).
To meet a listing under 1.04 for disorders of the spine, requires evidence of:
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 with:
A. Evidence of nerve root compression characterized by
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neuro-anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology
report of tissue biopsy, or by appropriate medically acceptable
imaging, manifested by severe burning or painful dysesthesia,
resulting in the need for changes in position or posture more than
once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established
by findings on appropriate medically acceptable imaging, manifested
by chronic nonradicular pain and weakness, and resulting in inability
to ambulate effectively, as defined in 1.00B2b.

20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04.
Listing 1.04 requires medical evidence of nerve root compression, sensory or reflex loss, and
a positive straight-leg raising test. 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04(A). Plaintiff has failed
to provide medical evidence that documents the criteria for the listed impairment are met.
Additionally, as demonstrated in the section for Listing 1.02, Plaintiff’s ability to ambulate
effectively was unimpaired.
Plaintiff also argues she meets Listing 12.06 for Anxiety-related Disorders. ECF No. 11, Pg.
9-14. To be disabled under this Listing, the requirements of both subsection A and B of the Listings
in question must be met. 20 C.F.R. 404, subpt. P, app. 1, §§ 12.06. In this matter, the ALJ correctly
determined Plaintiff did not meet the four elements of subsection B (the “B” criteria) of any listed
mental impairment. (Tr. 11-13). The “B” criteria require at least two of the following:
1. Marked restriction of activities of daily living; or
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2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence or pace; or
4. Repeated episodes of decompensation, each of extended duration.
See 20 C.F.R. 404, subpt. P, app. 1, §§ 12.06(B).
In this matter, the ALJ properly determined Plaintiff had mild limitations to her daily
activities; moderate limitations to social functioning and ability to maintain concentration,
persistence, and pace; and no episodes of decompensation which have been of extended duration.
(Tr. 11-13).
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 the credibility determination. ECF No. 11, Pgs. 14-16. 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,
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

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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 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.

(2007). Thus, this Court will not require the analysis of these additional factors in this case.

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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. 13-20). Specifically, the ALJ noted the following: (1) Absence of objective medical
findings to support Plaintiff’s alleged disabling pain, (2) Receiving unemployment compensation
and has applied for work, (3) Plaintiff’s described activities of daily living inconsistent with the
record, (4) No persuasive evidence of medication side effects, (5) Conservative medical treatment
during relevant time period, and (6) Failed to comply with physician recommendations. 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.
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
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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 for sedentary work, except can
only occasionally climb, balance, stoop, bend, crouch, kneel, or crawl; and restricted to work where
interpersonal contact is incidental to the work performed; complexity of tasks is learned and
performed by rote with few variables and little judgment; and supervision required is simple, direct,
and concrete. (Tr. 13, Finding 5). Plaintiff argues the ALJ erred in this RFC determination. ECF No.
11, Pgs. 16-19. Specifically, the Plaintiff argues the ALJ erred in his mental RFC assessment. Id.
However, substantial evidence supports the ALJ’s RFC determination.
In the RFC finding, the ALJ restricted Plaintiff to jobs where interpersonal contact is incidental
to the work performed; complexity of tasks is learned and performed by rote with few variables and
little judgment; and supervision is simple, direct, and concrete. (Tr. 13). Plaintiff argues her rage and
anger outbursts would not allow her to work in public, despite years of treatment. ECF No. 11, Pg.
19. However, as the ALJ stated, when Plaintiff was seen on February 7, 2015 at the Friendship
Community Care, she had a normal mental status examination; improvement in her symptoms; and
the prognosis was good. (Tr. 16). The ALJ also noted Plaintiff had improvements from counseling
and medications which were successful in controlling the symptoms of her impairments. (Tr. 18).
As shown by the above medical evidence, substantial evidence supports the ALJ’s RFC
determination. Plaintiff has the burden of establishing her 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 her burden in this case and because the ALJ’s RFC determination is
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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 20th day of November 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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