The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
RICCI JEANNE SCOTT PLAINTIFF
vs. Civil No. 6:17-cv-06003
NANCY BERRYHILL DEFENDANT
Commissioner, Social Security Administration
MEMORANDUM OPINION
Ricci Jeanne Scott (“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 applications for
Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and a period of
disability 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. 8.1
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 July 1, 2014. (Tr. 10, 189-199). Plaintiff
alleged she was disabled due to depression. (Tr. 210). Plaintiff alleged an onset date of November
1, 2012, which was later amended to November 27, 2013. (Tr. 10). These applications were denied
1 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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initially and again upon reconsideration. (Tr. 10). Thereafter, Plaintiff requested an administrative
hearing on her applications and this hearing request was granted. (Tr. 139).
Plaintiff’s administrative hearing was held on September 9, 2015. (Tr. 25-68). Plaintiff was
present and was represented by counsel, Hans Pullen, 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 high school education with some college. (Tr. 30, 34).
On December 29, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB and SSI. (Tr. 10-20). In this decision, the ALJ determined the Plaintiff last met
the insured status requirements of the Act on December 31, 2018. (Tr. 12, Finding 1). The ALJ also
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since November 27,
2013, her amended alleged onset date. (Tr. 12, Finding 2).
The ALJ determined Plaintiff had the severe impairments of chronic obstructive pulmonary
disease (COPD) and asthma; bipolar disorder; and history of methamphetamine abuse. (Tr. 12,
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. 13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 14-18). 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 to perform medium work with no exposure to chemicals, fumes, dust, or temperature
extremes, and limited to unskilled, rote activities, with only simple instructions and superficial
contact with supervisors and coworkers. (Tr. 14, Finding 5).
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The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, 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. 19,
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 living room attendant with 47,000
such jobs in the nation and hand packager with 165,000 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
November 27, 2013, through the date of the decision. (Tr. 20, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 69). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-4).
On January 5, 2017, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on February 21, 2017. ECF No. 8. Both Parties have filed appeal briefs.
ECF Nos. 12, 13. 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) in his credibility analysis, and
(B) in the RFC determination ECF No. 12, Pgs. 2-16. In response, the Defendant argues the ALJ
did not err in any of his findings. ECF No. 13.
A. ALJ’s Credibility Determination
Plaintiff claims the ALJ erred in his credibility determination. ECF No. 12, Pgs. 2-12. In
response, Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective
complaints pursuant to the directives of Polaski. ECF No. 13.
In assessing the credibility of a claimant, the ALJ is required to examine and to apply the
five factors from Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) or from 20 C.F.R. § 404.1529
and 20 C.F.R. § 416.929.2 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to consider
are as follows: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the
pain; (3) the precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of
medication; and (5) the functional restrictions. See Polaski, 739 at 1322.
The factors must be analyzed and considered in light of the claimant’s subjective complaints
of pain. See id. The ALJ is not required to methodically discuss each factor as long as the ALJ
2 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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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 and failed to consider low Global
Assessment of Functioning (“GAF”) scores. 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. 14-18). 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
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has placed a level of limitation on Plaintiff’s activities comparable to those described by Plaintiff,
and (5) Plaintiff’s non compliance with medical treatment. 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.
In social security cases, it is important for an ALJ to evaluate a claimant’s Global Assessment
of Functioning (“GAF”) score in determining whether that claimant is disabled due to a mental
impairment. GAF scores range from 0 to 100. Am. Psychiatric Ass’n, Diagnostic & Statistical
Manual of Mental Disorders (DSM-IV-TR) 34 (4th ed., text rev. 2000). The Eighth Circuit has
repeatedly held that GAF scores (especially those at or below 40) must be carefully evaluated when
determining a claimant’s RFC. See Conklin v. Astrue, 360 F. App’x. 704, 707 (8th Cir. 2010)
Plaintiff also argues the ALJ erred by failing to properly consider her GAF scores. However,
in this matter, the ALJ did discuss Plaintiff’s GAF scores and gave them some weight. (Tr. 18). The
ALJ indicated the GAF scores were designed as a treatment tool, rather than for use in adjudicative
determinations. Id. The ALJ also indicated the scores often indicate non-work related problems;
shown by the fact that Plaintiff maintained employment despite having low GAF scores. Id.
B. 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
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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 medium work with
no exposure to chemicals, fumes, dust, or temperature extremes, and limited to unskilled, rote
activities, with only simple instructions and superficial contact with supervisors and coworkers. (Tr.
14, Finding 5). Plaintiff argues the ALJ erred in this RFC determination because the ALJ should
have re-contacted Plaintiff’s treating sources to provide a medical opinion concerning her mental
impairments, or should have obtained a mental consultative examination. ECF No. 12, Pgs. 12-16.
However, substantial evidence supports the ALJ’s RFC determination.
If a physician’s report of a claimant’s limitations are stated only generally, the ALJ should
ask the physician to clarify and explain the stated limitations. See Vaughn v. Heckler, 741 F. 2d
177,179 (8th Cir. 1984). Furthermore, the ALJ is required to order medical examinations and tests
if the medical records presented do not provide sufficient medical evidence to determine the nature
and extent of a claimant’s limitations and impairments. See Barrett v. Shalala, 38 F. 3d 1019, 1023
(8th Cir. 1994). In addition, a claimant must show not only that the ALJ failed to fully and fairly
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develop the record, but must also show he was prejudiced or treated unfairly by the ALJ's failure.
See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993).
Initially the Court notes Plaintiff has failed to establish that the medical records presented
did not provide sufficient medical evidence to determine the nature and extent of her limitations and
impairments. See Barrett v. Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994). An ALJ is not required
to order a consultative evaluation of every alleged impairment; he simply has the authority to do so
if the existing medical sources do not contain sufficient evidence to make an informed decision. See
Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989).
Further, Plaintiff must not only show the ALJ failed to fully and fairly develop the record,
but that she was prejudiced or treated unfairly by the ALJ’s alleged failure to develop the record.
Plaintiff has not set forth any evidence showing had the ALJ sought additional opinions or records,
the ALJ would have arrived at a different decision.
Plaintiff was seen at the Community Counseling Service on January 8, 2015 and the reports
state Plaintiff had good grooming, good eye contact, full orientation, normal demeanor, normal
insight and judgment, alert attention and concentration, and clear speech. (Tr. 454-457). Plaintiff
was also see non February 18, 2015, and Plaintiff was experiencing no more than “mild” anxiety and
“mild” memory and concentration problems. (Tr. 465).
Plaintiff was also seen by Dr. Jodi Sanson in March, June, and September of 2015. (Tr. 486,
490, 505). At these visits, it was reported Plaintiff was fully oriented with appropriate affect and
demeanor. Id. Also, an MRI exam on August 10, 2015, showed no findings of acute intracranial
ischemia or hemorrhage. (Tr. 497).
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
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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 2nd day of February 2018.
/s/_Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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