Mize v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

KAREN R. MIZE PLAINTIFF

vs. Civil No. 2:17-cv-02220

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Karen R. Mize (“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 her application for a period

of disability and 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 protectively filed her disability application on July 2, 2014. (Tr. 19). In her

application, Plaintiff alleges she is disabled due to neuropathy in her neck, depression, and anxiety.

(Tr. 240). Plaintiff alleges an onset date of August 10, 2012. (Tr. 15). This application was denied

initially and again upon reconsideration. (Tr. 261-276).

Plaintiff requested an administrative hearing on her denied application. (Tr. 138-139). This

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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hearing request was granted, and Plaintiff’s first administrative hearing was held on July 21, 2015.

(Tr. 38-61). Thereafter, on September 22, 2016, the ALJ held a second administrative hearing. (Tr.

66-95). This hearing was held in Fort Smith, Arkansas. Id. At this hearing, Plaintiff was present and

was represented by counsel, Iva Nell Gibbons. Id. Plaintiff and Vocational Expert (“VE”) Barbara

Hubbard testified at this hearing. Id.

After this hearing, the ALJ entered an unfavorable decision denying her disability application.

(Tr. 16-30). In this decision, the ALJ determined Plaintiff met the insured status requirements of the

Act through December 31, 2017. (Tr. 21, Finding 1). The ALJ determined Plaintiff had not engaged

in Substantial Gainful Activity (“SGA”) since August 10, 2012 (her alleged onset date). (Tr. 21,

Finding 2). The ALJ determined Plaintiff had the following severe impairments: hypertension;

degenerative disc disease of the cervical spine at C2-3 and C3-4; status/post-epidural steroid injection

(ESI); degenerative joint disease of the lumbar spine with spondylosis at L4-5; headaches; major

depression; and anxiety. (Tr. 21, Finding 3). Despite being severe, the ALJ determined Plaintiff did

not have an impairment or combination of impairments that met or medically equaled one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 22-23, Finding 4).

The ALJ determined Plaintiff had a high school education and was able to communicate in

English. (Tr. 29, Finding 8). The ALJ determined Plaintiff was forty-five (45) years old, which is

defined as an “younger individual” under 20 C.F.R. § 404.1563(c) (2008) on her alleged disability

onset date. (Tr. 29, Finding 7).

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

(Tr. 23-28, Finding 5). First, the ALJ evaluated Plaintiff’ subjective complaints and found they were

not entirely credible. Id. Second, the ALJ determined Plaintiff had the following RFC:

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

has the residual functional capacity to perform sedentary work as defined in 20 CFR

404.1567(a) except she is limited to occasional overhead reaching. She is able to

perform work involving simple tasks, simple instructions, and incidental contact with

the public.

Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was

unable to perform any of her PRW. (Tr. 28-29, Finding 6). The ALJ also considered whether

Plaintiff retained the capacity to perform other work existing in significant numbers in the national

economy. (Tr. 29-30, Finding 10). The VE testified at the administrative hearing regarding this issue.

Id. Based upon that testimony, the ALJ found Plaintiff retained the capacity to perform work as a

document preparer with 27,000 such jobs in the nation and 260 such jobs in Arkansas; addresser with

11,000 such jobs in the nation and 50 such jobs in Arkansas; and inspector/sorter/weigher jobs with

10,000 such jobs in the nation and 120 such jobs in Arkansas. (Tr. 30). 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 August 10, 2012 through the date of his decision or through December

13, 2016. (Tr. 30, Finding 11).

Plaintiff sought review with the Appeals Council. On October 6, 2017, the Appeals Council

denied this request for review. (Tr. 5-8). On December 1, 2017, Plaintiff filed a Complaint in this

matter. ECF No. 1. Both Parties have filed appeal briefs and have consented to the jurisdiction of

this Court. ECF Nos. 7, 12-13. This case is now ready for determination.

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)

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(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

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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 her appeal brief, Plaintiff raises four arguments for reversal: (A) the ALJ failed to properly

develop the evidence in the record; (B) the ALJ failed to consider evidence which detracted from his

findings; (C) the ALJ failed to follow the proper legal standards; and (D) the ALJ failed to satisfy his

burden at Step Five of the Analysis. ECF No. 12 at 1-19. The Court will address all four of these

arguments.

A. Development of the Record

Plaintiff claims the ALJ did not properly develop the record. ECF No. 12 at 9-11.

Specifically, Plaintiff claims the ALJ should have sought additional clarification from her treating

physician, Dr. Roxanne Marshall, M.D., prior to discounting her findings. Id. Notably, it appears the

“finding” the ALJ improperly discounted was the following from Dr. Marshall’s report dated August

25, 2014:

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. . . In my professional opinion, the combination of these impairments as well as side

effects to her medications would prevent her from working at any job eight hours a

day, five days a week because she would be unable to sit, stand or walk in

combination for that period of time without extended periods of unscheduled break

time, during which she would need to lie down.

(Tr. 568).

Upon review of this argument, the Court finds no basis for reversal on this issue. For this

Court to reverse Plaintiff’s case based upon this issue, Plaintiff must demonstrate prejudice from the

ALJ’s failure to develop the record. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993)

(holding “absent prejudice or unfairness, we will not remand”). Here, Plaintiff has not demonstrated

she was prejudiced by the ALJ’s failure to develop the record in this case. ECF No. 12 at 9-11. Thus,

she is not entitled to a remand.

Additionally, Dr. Marshall’s findings are one-paged conclusory findings. (Tr. 568). As such,

they are only entitled to limited weight and not the traditional controlling weight generally afforded

to the opinions of a treating physician. See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991)

(recognizing that when a physician’s opinion amounts to only a conclusory opinion amounts only to

a conclusory statement, it is not entitled to greater weight than any other physician’s opinion). Also

for this reason, the Court cannot reverse and remand this case based upon this issue.

B. Evidence Detracting from His Findings

Plaintiff claims the ALJ failed to consider evidence which “fairly detracted from his findings.”

ECF No. 12 at 11-12. Upon review of this argument, Plaintiff is actually alleging the ALJ erred in

evaluating her subjective complaints. Id. Thus, the Court will consider this issue.

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 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.

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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Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).

In the present action, the Court finds the ALJ fully complied with the requirements of Polaski.

Indeed, the ALJ considered Plaintiff’s subjective complaints, evaluated her medical records, and

noted the following inconsistencies in his decision to discount Plaintiff’s subjective complaints:

. . . In terms of mental symptoms, the claimant has been able to maintain employment

for up to twenty years in the past, and left her last job due to physical problems. Her

activities of daily living indicate that she is able to take care of her own needs and help

her parents with cooking, cleaning, and doctors’ visits. Based on all the available

evidence of record, the undersigned finds it reasonable to conclude that the claimant

would be capable of work at a level consistent with the above residual functional

capacity.

(Tr. 28). Based upon these inconsistencies, the Court cannot find a basis for reversal on this issue.

See Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (recognizing that deference is warranted

where the ALJ’s credibility determination is supported by good reasons and substantial evidence).

C. Proper Legal Standards

With this argument, Plaintiff claims the ALJ erred in evaluating her RFC because he did not

give the proper weight to the findings of her treating physician. ECF No. 12 at 14-15. Specifically,

Plaintiff claims the ALJ did not give proper weight to the findings of her treating physician, Dr.

Marshall. Id.

As recognized above, Dr. Marshall’s assessment is conclusory in nature. As such, and also

as recognized above, that opinion is not entitled to controlling weight. Furthermore, in his opinion,

the ALJ noted the following regarding Dr. Marshall’s assessment: “Some weight is given to Dr.

Marshall’s assessment, as the claimant’s treating physician, but the severity of limitations indicated

is not supported by the other evidence of record, including recent consultative examinations by Dr.

Shry and Dr. Westbrook.” (Tr. 27). Based upon this review, the Court finds the ALJ followed the

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proper legal standards, and there is no basis for reversal on this issue.

D. Step Five Determination

As her final argument, Plaintiff claims the ALJ did not meet his burden at Step Five of the

Analysis. ECF No. 12 at 17-18. With this argument, Plaintiff argues the ALJ improperly assessed

her RFC; and with that flawed RFC, the ALJ improperly found Plaintiff could perform other work

existing in significant numbers in the national economy. Id. As outlined above, however, the Court

finds no error with the RFC determination. Thus, the Court likewise 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 23rd day of January 2019.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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