Kennel v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 9, 2018. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
STANLEY KENNEL
vs.

PLAINTIFF
Civil No. 6:16-cv-06107

NANCY BERRYHILL
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Stanley Kennel (“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”) 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. 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 was filed on July 1, 2014. (Tr. 11). Plaintiff alleged he was
disabled due to disc disease, lower back pain, insomnia, anxiety, bulging disc, high blood pressure,
torn lumbar, and arthritis. (Tr. 177). Plaintiff alleged an onset date of June 24, 2014. (Tr. 11, 178).
This application was denied initially and again upon reconsideration. (Tr. 11). Thereafter, Plaintiff

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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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requested an administrative hearing on his application and this hearing request was granted. (Tr. 96).
Plaintiff’s administrative hearing was held on August 13, 2015. (Tr. 34-63). Plaintiff was
present and was represented by counsel, Hilary Chaney, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Kola Brown, testified at the hearing. Id. At the time of this hearing, Plaintiff was
forty (40) years old and had a high school education. (Tr. 38, 40).
On October 19, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 11-24). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through September 30, 2016. (Tr. 13, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since June 24, 2014. (Tr. 13,
Finding 2).
The ALJ also determined Plaintiff had the severe impairments of mild to moderate
degenerative disc disease at the L3 through S1 levels and obesity. (Tr. 13, Finding 3). The ALJ then
determined Plaintiff’s impairments did not meet or medically equal the requirements of any of the
Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 16,
Finding 4)
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 17-23). 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 light work, except is able to occasionally climb, stoop, crouch, kneel, or crawl. (Tr. 17,
Finding 5).
The ALJ evaluated Plaintiff's Past Relevant Work ("PRW"). (Tr. 23, Finding 6). The ALJ
found Plaintiff was unable to perform his PRW. Id. The ALJ, however, also determined there was

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other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 23,
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 storage facility rental clerk with
60,000 such jobs in the nation and merchandise marker with 270,000 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 June 24, 2014, through the date of the decision. (Tr. 24, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 31). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-4).
On October 24, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on October 27, 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
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

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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

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the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3. Discussion:
Plaintiff brings the present appeal claiming the ALJ erred: (A) in failing to consider all of
Plaintiff’s impairments in combination (B) in failing to properly consider Plaintiff’s complaints of
pain, (C), in the weight given the opinions of Plaintiff’s medial providers, and (D) in the RFC
determination. ECF No. 11, Pgs. 3-19. In response, the Defendant argues the ALJ did not err in any
of his findings. ECF No. 12.
A. Combination of Impairments
Plaintiff argues the ALJ erred by failing to consider all of his impairments in combination.
However, under the facts in the present case and after a thorough review of the ALJ’s opinion and
the record in this case, this Court finds the ALJ properly considered Plaintiff’s impairments in
combination.
The Social Security Act requires the ALJ to consider the combined effect of all of the
claimant’s impairments without regard to whether any such impairment, if considered separately,
would be of sufficient severity. See 20 C.F.R. § 404.1523 (2006). In the present action, in reviewing
these claimed impairments, the ALJ stated Plaintiff “does not have an impairment or combination
of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.” (Tr. 16, Finding 4) (emphasis added). The ALJ also found, “after
consideration of the entire record,” the Plaintiff had the RFC to perform light work with some
limitations. (Tr. 17, Finding 5). The ALJ went on to state Plaintiff’s RFC would not preclude him
from performing other work that exists in significant numbers in the national economy. (Tr. 23,

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Finding 10).
These statements are sufficient under Eighth Circuit precedent to establish that the ALJ
properly considered the combined effect of a claimant’s impairments. See Hajek v. Shalala, 30 F.3d
89, 92 (8th Cir. 1994) (holding that statements such as “the evidence as a whole does not show that
the claimant’s symptoms . . . preclude his past work as a janitor” and “[t]he claimant’s impairments
do not prevent him from performing janitorial work . . .” sufficiently establish that the ALJ properly
considered the combined effects of the plaintiff’s impairments).
Thus, pursuant to the Eighth Circuit’s holding in Hajek, this Court finds the ALJ properly
considered Plaintiff’s impairments in combination. Plaintiff has alleged he suffers from a number
of impairments. However, this Court is not required to find a claimant is disabled simply because
he or she has alleged a long list of medical problems. The ALJ’s opinion sufficiently indicates the
ALJ properly considered the combined effect of Plaintiff’s impairments, and the ALJ properly
considered the severity of the combination of Plaintiff’s impairments. See Hajek, 30 F.3d at 92.
B. ALJ’s Credibility Determination
Plaintiff also claims the ALJ erred in his credibility determination. ECF No. 11, Pgs. 11-12.
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,

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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

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. 17-21). Specifically, the ALJ noted the following: (1) Absence of objective medical
findings to support Plaintiff’s alleged disabling pain, (2) Plaintiff’s described activities of daily living
are not limited to any serious degree, (3) Conservative medical treatment which was successful
controlling symptoms, (4) Medications were effective in treatment, and (5) Employment following
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.
C. ALJ’s Treatment of Treating Physician Opinions
Social Security Regulations and case law state that a treating physician's opinion will be
granted “controlling weight,” provided it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
record.” See SSR 96-2p; Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000)(citing 20 C.F.R.
§ 404.1527(d)(2)). An ALJ is required to give good reasons for the particular weight given to a
treating physician’s evaluation. See Prosch, 201 F.3d at1013 (citing 20 C.F.R § 404.1527(d)(2), and
SSR 96-2p). An ALJ may disregard the opinion of a treating physician only where other medical
assessments “are supported by better or more thorough medical evidence,” or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions. Id. at 1013
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(quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), and Cruze v. Chater, 85 F.3d 1320,
1324-25 (8th Cir. 1996)).
Plaintiff argues the ALJ improperly discredited the objective findings of physical therapist
Robert Moore and nurse practitioner Beverly Bejarano. ECF No. 11, Pgs. 12-17. However,
Plaintiff’s argument is without merit.
To begin with, as the ALJ indicated, neither Mr. Moore nor Ms. Bejarano are considered
acceptable medical sources who can provide medical opinions. And even so, the ALJ considered
their opinions and gave some weight to the opinions of Mr. Moore. The ALJ found that the opinions
of Ms. Bejarano were entitled to little or no weight.
In the case of Mr. Moore, the ALJ found his opinions were conclusory and not entirely
consistent with the medical evidence of record, and did not cite to any specific objective findings to
justify a complete prohibition of activities. (Tr. 21). In considering the opinions of Ms. Bejarano,
the ALJ indicated that although she stated Plaintiff was disabled, it was not clear she was familiar
with the definition of disability, and furthermore, the opinion on whether an individual is disabled
goes to an issue reserved to the Commissioner. Id. Furthermore, the ALJ found Ms. Bejarano's
opinion was inconsistent with the medical evidence of record and lacked objective findings in the
way of support. Id. The ALJ also noted Plaintiff had received generally conservative treatment for
his back condition.
The ALJ gave proper weight to the restrictive limitations found by Mr. Moore and Ms.
Bejarano. The ALJ committed no error in his treatment of these opinions.
D. 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
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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 for light work, except is able
occasionally climb, stoop, crouch, kneel, or crawl. (Tr. 17, Finding 5). Plaintiff argues the ALJ
erred in this RFC determination. ECF No. 11, Pgs. 17-19. However, substantial evidence supports
the ALJ’s RFC determination.
In his opinion, the ALJ considered Plaintiff’s alleged impairments and discounted those he
found were not credible. Other than claiming the ALJ failed to address medication side effects,
Plaintiff has not referenced any specific limitations the ALJ improperly assessed or provided any
medical evidence or other evidence demonstrating the ALJ erred in assessing his limitations.
However, the ALJ specifically noted Plaintiff testified about side effects with his medications. (Tr.
19). The ALJ also considered the agreeable side effects when Plaintiff described his medication being
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effective in controlling his symptoms of low back pain. (Tr. 20).
Plaintiff has the burden of demonstrating his alleged limitations. See, e.g., Young v. Apfel, 221
F.3d 1065, 1069 (8th Cir. 2000). Without more, the Court cannot find the ALJ erred in assessing his
RFC. The mere fact Plaintiff suffers from a number of different impairments does not demonstrate
he is disabled due to those impairments.
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 9th day of February 2018.

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

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