The opinion
7IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ALFRED C. HOPSON
PLAINTIFF
vs. Civil No. 4:17-cv-04047
NANCY A. BERRYHILL DEFENDANT
Acting Commissioner, Social Security Administration
MEMORANDUM OPINION
Alfred C. Hopson (“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
Supplemental Security Income (“SSI”) under Title 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. 9.1 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 SSI was filed on April 8, 2014. (Tr. 10). Plaintiff alleged he was
disabled due to due to gout, heart issues, a brain aneurysm, and schizophrenia. (Tr. 234). Plaintiff
alleged an onset date of October 1, 2012. (Tr. 10). This application was denied initially and again
upon reconsideration. (Tr. 119-162, 165-167). Thereafter, Plaintiff requested an administrative
hearing on his application and this hearing request was granted. (Tr. 168).
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.”
Plaintiff’s administrative hearing was held on April 20, 2016. (Tr. 39-77). Plaintiff was
present and was represented by counsel, Michael Angel, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Diana Kizer testified at this hearing. Id. At the time of this hearing, Plaintiff was
fifty (50) years old and a tenth grade education. (Tr. 44).
On May 31, 2016, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI. (Tr. 10-33). In this decision, the ALJ determined Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since April 8, 2014. (Tr. 12, Finding 1). The ALJ also determined
Plaintiff had the severe impairments of gout; essential hypertension; thoracic and lumbar spine
degenerative disc disease; mild osteoarth1itis of the left elbow; mild right hand osteoarthritis; and
affective, personality, and substance addiction disorders. (Tr. 12, Finding 2). 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. 14,
Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 17-32). 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 following RFC:
to lift and carry 20 pounds occasionally, and 10 pounds frequently; to stand and walk
about six hours total during an ight hour work day; and to sit for about six hours total
during an eight hour work day. He can only occasionally grasp with his right
dominant hand. He can only occasionally reach, including overhead, with his left
arm. He must be allowed to alternately sit and stand every 10 to 15 minutes
throughout the work day for the purposes of changing positions, but without leaving
the workstation. He is also limited to unskilled work (where the tasks are no more
complex than those learned and performed by rote, with few variables and little
judgment) where supervision must be simple, direct, concrete, and non-critical; and
interpersonal contact with supervisors and coworkers is incidental to the work
performed, e.g., assembly work, but he must not be required to work at fast-paced
production lines speeds. He can work at a consistent pace if he has normal, regular
work breaks. He should have only occasional workplace changes. He should not be
required to travel to unfamiliar places or to use public transportation as part of his
work duties. In other words, he can perform less than the full range of “light” work.
(Tr. 17, Finding 4).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 32, Finding 5). The ALJ
found Plaintiff was not capable of performing his PRW. Id. The ALJ, however, also determined
there was other work existing in significant numbers in the national economy Plaintiff could perform.
(Tr. 32-33, Finding 9). 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 conveyor line
bakery worker with approximately 35,000 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 since April 8, 2014.
(Tr. 33, Finding 10).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 212-
214). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-6). On June 27, 2017, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court. ECF No. 9. Both Parties have filed appeal briefs. ECF Nos. 21,
22. 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,
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).
3. Discussion:
Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to fully develop the
record and (B) in his credibility analysis. ECF No. 21, Pgs. 6-12. In response, the Defendant argues
the ALJ did not err in any of his findings. ECF No. 22.
A. Duty to Develop Record
The ALJ has the duty to fully and fairly develop the record, even where the Plaintiff is
represented by counsel. 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). The ALJ must develop the record until the evidence
is sufficiently clear to make a fair determination as to whether the claimant is disabled. See Landess
v. Weinberger, 490 F. 2d 1187, 1189 (8th Cir. 1974). In addition, a claimant must show not only that
the ALJ failed to fully and fairly develop the record, but he must also show that he was prejudiced
or treated unfairly by the ALJ's failure. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993).
Plaintiff argues the ALJ erred by failing to fully develop the record regarding Plaintiff’s
alleged impairments of thoracic and lumbar spine degenerative disc disease, mild osteoarthritis of
the left elbow, and mild right hand osteoarthritis. ECF No. 21, Pgs. 8-10. Defendant argues
substantial evidence shows the ALJ met his duty to fairly develop the record.
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 his 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 he 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 requested additional consultative
examinations, the ALJ would have arrived at a different decision.
Therefore, I find the ALJ satisfied his duty to fully and fairly develop the record in this
matter.
B. ALJ’s Credibility Determination
Plaintiff claims the ALJ erred in his credibility determination. ECF No. 21, Pgs. 10-12. In
response, Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective
complaints pursuant to the directives of Polaski. ECF No. 22.
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
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,
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
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. 18-32). Specifically, the ALJ noted the following: (1) Absence of objective medical
findings to support Plaintiff’s alleged disabling pain, (2) Inconsistent statements of Plaintiff
regarding daily activities and functional capabilities, (3) Evidence Plaintiff was a malingerer, (4)
Plaintiff’s described activities of daily living allow for active lifestyle, (5) Conservative medical
treatment, (6) Evidence Plaintiff was motivated by benefits in seeking medical treatment, and (7)
No indication of medication side effects that could not be resolved through change in medication
or dosage. 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
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 7th day of May 2018.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE