Thornton v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

BRIAN THORNTON PLAINTIFF

vs. Civil No. 6:16-cv-06122

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Brian Thornton (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social

Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), 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. Pursuant to this authority, the Court issues

this memorandum opinion and orders the entry of a final judgment in this matter.

1. Background:

Plaintiff protectively filed his disability application on September 10, 2013. (Tr. 17, 201-

204). In this application, Plaintiff alleges being disabled due to broken legs, panic attacks, left eye

blindness, anxiety, damaged knee cartilage, pins in both feet, bulging discs in her back, a torn rotator

cuff, colitis, and “spastic” bowels. (Tr. 224). Plaintiff alleges an onset date of March 18, 2012. (Tr.

17). This application was denied initially and again upon reconsideration. (Tr. 90-138).

Plaintiff requested an administrative hearing on May 27, 2014. (Tr. 149-150). This request

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was granted, and Plaintiff’s administrative hearing was held on February 11, 2015 in Hot Springs,

Arkansas. (Tr. 35-89). At this hearing, Plaintiff was present and was represented by James Stanley.

Id. Plaintiff and Vocational Expert (“VE”) Dwight Turner testified at this hearing. Id. During this

hearing, Plaintiff testified he was forty-seven (47) years old, which is defined as a “younger person”

under 20 C.F.R. § 404.1563(c) (2008). (Tr. 39-40). As for his education, Plaintiff testified he had

completed high school and one year of college. (Tr. 40-41).

On April 23, 2015, after the administrative hearing, the ALJ entered a fully unfavorable

decision denying Plaintiff’s DIB application. (Tr. 14-29). In this decision, the ALJ found Plaintiff

met the insured status requirements of the Act through December 31, 2017. (Tr. 19, Finding 1). The

ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since March 18,

2012, his alleged onset date. (Tr. 19, Finding 2). The ALJ determined Plaintiff had the following

severe impairments: generalized anxiety disorder, dysthymic disorder, degenerative disc disease of

the lumbar spine, osteoarthritis of the knees, colitis, and vision disorder. (Tr. 19-20, Finding 3). The

ALJ also determined Plaintiff’s impairments did not meet or medically equal the requirements of any

of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr.

20-21, Finding 4).

In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.

(Tr. 14-29). First, the ALJ evaluated Plaintiff’s subjective complaints and found his claimed

limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the capacity

to perform the following:

After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform light work as defined in 20

CFR 404.1567(b) except he cannot climb ladders, ropes, or scaffolds. He can only

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occasionally climb ramps and stairs. He can occasionally balance, stoop, kneel,

crouch, and crawl. He can perform no work where reading of written material is

required. Neither can he monitor of dials, gauges, or monitor screens, or visually

inspect or assembly [assemble] small parts or components. Mentally, the claimant

is limited to jobs involving simple, routine, repetitive tasks with only incidental

interpersonal contact where supervision is simple, direct, and concrete (unskilled

work).

Id.

Considering his RFC, the ALJ determined Plaintiff did not retain the capacity to perform any

of his PRW. (Tr. 28, Finding 6). The ALJ then determined whether Plaintiff retained the capacity

to perform other work existing in significant numbers in the national economy. (Tr. 28-29, Finding

10). The VE testified at the administrative hearing regarding this issue. Id.

Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform

the requirements of representative occupations such as (1) motel cleaner (light, unskilled) with

370,000 such jobs in the nation; (2) inspection worker (light, unskilled) with 120,000 to 130,000

such jobs in the nation; (3) assembly worker (sedentary, unskilled) with 160,000 such jobs in the

nation; and (4) machine tending label cutter (sedentary, unskilled) with 220,000 such jobs in the

nation. (Tr. 29). Because Plaintiff retained the capacity to perform this other work, the ALJ

determined Plaintiff had not been under a disability, as defined by the Act, from his alleged onset

date of March 18, 2012 through the date of his decision or through April 23, 2015. (Tr. 29, Finding

11).

Plaintiff sought review with the Appeals Council. (Tr. 11-12). On October 6, 2016, the

Appeals Council denied his request for review. Id. On December 5, 2016, Plaintiff filed his

Complaint in this action. ECF No. 1. Both Parties have filed appeal brief and have consented to the

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jurisdiction of this Court. ECF Nos. 7, 11-13. Plaintiff also filed a reply brief in this matter. ECF

No. 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)

(2010); 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

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

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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

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:

In his appeal brief, Plaintiff alleges the ALJ’s disability determination is not supported by

substantial evidence in the record. ECF No. 11 at 1-14. Specifically, Plaintiff argues the following:

(A) the ALJ erred by failing to consider (and properly credit) the opinions of his treating physician;

(B) the ALJ erred by failing to properly apply the Polaski factors; (C) the ALJ erred in presenting

his hypothetical to the VE; and (D) the ALJ erred by failing to consider his impairments in

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combination. Id. The Court will address each of these arguments.

A. Treating Physician

Plaintiff claims the ALJ erred by failing to adopt the findings of his counselor, Lindsay Oliver

Crane, LPC. ECF No. 11 at 4-7. Plaintiff claims the ALJ should have deferred to her RFC

assessment. Id. Plaintiff also claims Ms. Crane was his “treating psychologist.” Id.

Upon review, however, Ms. Crane was actually a licensed professional counselor, not a

doctor or a psychologist. (Tr. 529). Thus, she is not an “acceptable medical source,” and her

opinions are not entitled to any controlling weight. See 20 C.F.R. § 404.1527(a)(2) (2017). See also

20 C.F.R. § 404.1502(a) (2017) (defining an “acceptable medical source”). Thus, the Court finds

no basis for reversal on this issue.

B. Polaski Evaluation

Plaintiff claims in both his opening brief and in his reply brief that the ALJ erred in

evaluating his subjective complaints. ECF No. 12 at 4-11. 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. § 416.929.1 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

1 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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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 that 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).

In the present action, the ALJ fully complied with the requirements of Polaski. (Tr. 14-29).

Indeed, the ALJ noted that despite Plaintiff’s allegations of disability, he had extensive daily

activities, including being able to feed and water his horses, bag leaves, pick up trash, drive, shop,

do yard work, and work part-time. (Tr. 27-28). Further, just two weeks after his alleged onset date,

Plaintiff reported he was kicked by a horse and fell when attempting to get on his tractor. (Tr. 25-

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26). Despite his alleged disability, Plaintiff was not compliant taking his medications as prescribed

for his mental health impairments. (Tr. 23-24). Based upon these reasons, the Court cannot find the

ALJ erred in evaluating Plaintiff’s subjective complaints. See Guilliams v. Barnhart, 393 F.3d 798,

801 (8th Cir. 2005) (recognizing the Court defers “to the ALJ’s determinations regarding the

credibility of testimony, so long as they are supported by good reasons and substantial evidence”).

C. Hypothetical to the VE

Plaintiff claims the hypothetical to the VE was incomplete, and the ALJ failed to provide a

“full, complete and accurate hypothetical” to the VE. ECF No. 11 at 10-11. Plaintiff claims the ALJ

relied upon a hypothetical response “that encompassed only part of the limitations and especially

[part of] the mental limitations.” Id. Thus, as Plaintiff claims, the VE’s response to the ALJ’s

hypothetical does not provide substantial evidence supporting the ALJ’s decision. Id.

Upon review, however, the Court notes that the Eighth Circuit has consistently held that a

valid hypothetical need only include those impairments and limitations the ALJ finds credible. See,

e.g., Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005). As noted above, the ALJ properly

found Plaintiff’s subjective complaints were only partially credible, and the ALJ included all of

Plaintiff’s RFC restrictions in the operative hypothetical to the VE. Accordingly, Plaintiff’s

argument is without merit.

D. Impairments in Combination

Plaintiff claims the ALJ erred by failing to consider his impairments in combination. ECF

No. 11 at 11-12. Specifically, Plaintiff claims the ALJ never mentioned in his decision that he

“considered all of Plaintiff’s Thornton’s disabilities in combination and how they interact with each

other to preclude the performance of work activities.” Id.

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Upon review of this argument and the ALJ’s opinion in this case, the Court finds Plaintiff’s

argument on this issue is without merit. Indeed, in his opinion, the ALJ expressly considered the

combined effect of impairments and symptoms throughout his opinion when he stated “[t]he

claimant does not have an impairment or combination of impairments that meets or medically equals

the severity of one of the listed impairments. . . . .” and “the undersigned has considered all

symptoms and the extent to which these symptoms can reasonably be accepted as consistent with

the objective medical evidence and other evidence . . .” (Tr. 20-21) (emphasis added).

The Eighth Circuit has specifically held that such statements show the ALJ considered the

combined effect of Plaintiff’s impairments. See Raney v. Barnhart, 396 F.3d 1007, 1011 (8th Cir.

2005). See also Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994). Thus, the Court finds no basis for

reversal on this issue.

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 5th day of February 2018.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE

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