Gulley v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

MICHAEL GULLEY PLAINTIFF

vs. Civil No. 1:17-cv-01041

NANCY A. BERRYHILL DEFENDANT

Commissioner, Social Security Administration

MEMORANDUM OPINION

Michael Gulley (“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 applications 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 September 10, 2013. (Tr. 15). Plaintiff

alleged he was disabled due to seizures, right knee problems, and right eye problems from a car

wreck. (Tr. 214). Plaintiff alleged an onset date of June 30, 2013. Id. These applications were

denied initially and again upon reconsideration. (Tr. 15). Thereafter, Plaintiff requested an

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.”

1

administrative hearing on his applications and this hearing request was granted. (Tr. 138).

Plaintiff’s administrative hearing was held on May 4, 2015. (Tr. 37-70). Plaintiff was

present and was represented by counsel, David Graham, at this hearing. Id. Plaintiff and Vocational

Expert (“VE”) Mary May testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-

four (44) years old and had a high school education, with some college. (Tr. 42, 44).

On March 24, 2016, the ALJ entered an unfavorable decision denying Plaintiff’s application

for DIB and SSI. (Tr. 15-29). In this decision, the ALJ determined Plaintiff met the insured status

requirements of the Act through December 31, 2016. (Tr. 17, Finding 1). The ALJ also determined

Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since June 30, 2013. (Tr. 17,

Finding 2).

The ALJ determined Plaintiff had the severe impairments of history of seizure disorders,

unspecified internal derangement of the right knee, osteoarthritis, obesity, visual disturbance, major

depressive disorder, and mood disorder. (Tr. 18, 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. 18, Finding 4).

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

(Tr. 20-27). 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 light work, except could push or pull 20 pounds occasionally and 10 pounds

frequently; should avoid all exposure to hazards including unprotected heights and dangerous

machinery; and could perform simple, routine tasks. (Tr. 20, Finding 5).

The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 27, Finding 6). The ALJ

2

found Plaintiff capable of performing his PRW as a production worker. Id. In the alternative, the

ALJ also determined there was other work existing in significant numbers in the national economy

Plaintiff could perform. (Tr. 28-29). Based upon this finding, the ALJ determined Plaintiff had not

been under a disability as defined by the Act from June 30, 2013, through the date of the decision.

(Tr. 29, Finding 7).

Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 179).

See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr.

1-3). On June 8, 2017, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the

jurisdiction of this Court. ECF No. 7. Both Parties have filed appeal briefs. ECF Nos. 11, 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

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,

3

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

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).

4

3. Discussion:

Plaintiff brings the present appeal claiming the ALJ erred: (A) in the RFC determination, (B)

by failing to consider Plaintiff’s GAF scores, (C) in failing to consider Plaintiff’s subjective

complaints, and (D) in the Step 5 determination. ECF No. 11, Pgs. 1-15. In response, the Defendant

argues the ALJ did not err in any of his findings. ECF No. 13.

A. 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 light work, except

5

could push or pull 20 pounds occasionally and 10 pounds frequently; should avoid all exposure to

hazards including unprotected heights and dangerous machinery; and could perform simple, routine

tasks. (Tr. 20, Finding 5). Plaintiff argues the ALJ erred in this RFC determination. However,

substantial evidence supports the ALJ’s RFC determination.

In his opinion, the ALJ considered Plaintiffs alleged impairments and discounted those he

found were not credible. 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. Plaintiffhas 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.

B. GAF Scores

Plaintiff claims the ALJ erred by failing to properly assess his GAF scores. ECF No. 11 at

7-8. However, Plaintiff's argument is without merit.

In his opinion, the ALJ did recognize Plaintiff's GAF scores and found the scores were one

time snapshots assessments that did not reflect an overall level of functioning. (Tr. 26). The ALJ

went on to state that the scores did not provide a full function-by-function assessment of Plaintiffs

abilities. Jd.

Because the ALJ recognized Plaintiff’s low GAF scores but also provided reasons for

discounting those low GAF scores, the Court finds the ALJ did properly consider Plaintiff’s GAF

scores, and the Court finds no basis for reversal on this issue.

C. ALJ’s Credibility Determination

Plaintiff claims the ALJ erred in his credibility determination. ECF No. 11, Pgs. 3-4. 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

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.

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.

7

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 20 C.F.R. § 404.1529 and

20 C.F.R. § 416.929, and stated inconsistencies between Plaintiff’s testimony and the record. (Tr.

20-27). 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 physician has placed a level of limitation on Plaintiff’s activities

comparable to those described by Plaintiff, (4) medical treatment history, (5) Plaintiff’s symptoms

managed with medication, and (6) Plaintiff’s poor work history with gaps and low earnings. 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

8

affirmed. See Lowe, 226 F.3d at 971-72. Accordingly, the ALJ did not err in discounting Plaintiff

complaints of pain.

D. Step 5 Determination

At Step Five of a disability determination, the SSA has the burden of establishing that a

claimant retains the ability to perform other work in the economy. See Snead v. Barnhart, 360 F.3d

838, 836 (8th Cir. 2004). The SSA may meet this burden by either applying the Grids or by relying

upon the testimony ofa VE. See Cox v. Astrue, 495 F.3d 614, 621 (8th Cir. 2004) (finding the SSA’s

denial of benefits was supported by substantial evidence where the VE’s testimony was based on a

correctly-phrased hypothetical question); Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003)

(finding the SSA’s denial of benefits was supported by substantial evidence where the ALJ applied the

Grids).

The SSA may not apply the Grids, and must hear testimony from a VE, where a claimant’s

RFC is significantly diminished by a nonexertional limitation. See McGeorge v. Barnhart, 321 F.3d

766, 768-769 (8th Cir. 2003). If, however, the SSA properly determines a claimant’s RFC is not

significantly diminished by a nonexertional limitation, then the SSA may rely exclusively upon the

Grids and is not required to hear the testimony from a VE. See McGeorge, 321 F.3d at 768-769.

In this matter, the ALJ heard testimony froma VE regarding Plaintiff s ability to perform work

in the national economy. It is generally accepted that VE testimony, in response to a hypothetical

question, is substantial evidence if the hypothetical sets forth the credible impairments with reasonable

precision. See Starr v. Sullivan, 981 F.2d 1006 (8th Cir. 1992), It has further been established the ALJ

must only include in the hypothetical those impairments which the ALJ actually finds credible, and not

those which he rejects, assuming his findings are supported by substantial evidence. See Onstad v.

Shalala, 999 F.2d 1232 (8th Cir. 1993).

The ALJ found Plaintiff had the RFC to perform light work, except could push or pull 20

pounds occasionally and 10 pounds frequently; should avoid all exposure to hazards including

unprotected heights and dangerous machinery; and could perform simple, routine tasks. (Tr. 20,

Finding 5). In response to a hypothetical question containing these limitations, the VE testified work

existed in the national economy consistent with the limitations found by the ALJ. (Tr. 64-67). The

ALJ found a significant number of jobs existed in the national economy which Plaintiff could perform.

(Tr. 28-29). Relying on the VE testimony, the ALJ found Plaintiff was not under a disability as

defined by the Act from June 30, 2013, through the date of the decision. (Tr. 29, Finding 7).

I find the ALJ's hypothetical question properly set forth those limitations the ALJ found

credible and which are supported by the evidence of record. See Haynes v. Shalala, 26 F.3d 812, 815

(8th Cir. 1994); Rappoport v. Sullivan, 942 F.2d 1320, 1322 (8th Cir. 1991) (ALJ need only include

in his hypothetical question those impairments he accepts as true). The VE stated jobs existed in the

national economy for the vocational profile of the Plaintiff. Such testimony, based on a hypothetical

question consistent with the record, provided substantial evidence.

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 April 2018.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U. S. MAGISTRATE JUDGE

10