Wilchie v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

GERALD WILCHIE PLAINTIFF

vs. Civil No. 6:18-cv-06044

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Gerald Wilchie (“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 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. 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 applications on July 8, 2015. (Tr. 15). In these

applications, Plaintiff alleges being disabled due to osteoarthritis, diabetes, gout, neuropathy,

stomach ulcers, depression, anxiety, high blood pressure, and asthma. (Tr. 249). Plaintiff alleges

an onset date of May 1, 2015. (Tr. 15). His disability applications were denied initially and again

upon reconsideration. (Tr. 60-130).

Plaintiff requested an administrative hearing on his denied applications, and this hearing

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request was granted. (Tr. 36-59). Plaintiff’s administrative hearing was held on January 23, 2017

in Little Rock, Arkansas. Id. At this hearing, Plaintiff was present and was represented by Jennifer

Whittle. Id. Plaintiff and Vocational Expert (“VE”) Myrtle Johnson testified at this hearing. Id.

On April 28, 2017, after the administrative hearing, the ALJ entered an unfavorable decision

denying Plaintiff’s disability applications. (Tr. 17-28). The ALJ found Plaintiff met the insured

status requirements of the Act through December 31, 2019. (Tr. 17, Finding 1). The ALJ

determined Plaintiff had the following severe impairments: diabetes mellitus, ischemic heart disease,

degenerative disc disease, coronary artery disease, hypertension, gastroparesis, anxiety, and

depression. (Tr. 17-18, Finding 3). The ALJ also determined Plaintiff did not have an impairment

or combination of impairments that 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. 18-19, Finding

4).

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

Residual Functional Capacity (“RFC”). (Tr. 19-26, 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 light work as defined in 20

CFR 404.1567(b) and 416.967(b) except the claimant could perform no work

requiring frequent balancing, climbing or hazards. He would require a cane in his

dominant upper extremity to ambulate away from the workstation. The claimant is

able to perform work where interpersonal contact is incidental to the work performed,

incidental is defined as interpersonal contact requiring a limited degree of interaction

such as meeting and greeting the public, answering simple questions, accepting

payment and making change; complexity of tasks can be learned by demonstration

or repetition with 30 days, few variables, little judgment; supervision required is

simple, direct and concrete.

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Id.

The ALJ determined Plaintiff was forty-seven (47) years old, which is defined as a “younger

individual” under 20 C.F.R. § 404.1563(c) (2008) and 20 C.F.R. § 416.963(c) (2008), on his alleged

disability onset date. (Tr. 26, Finding 7). The ALJ determined Plaintiff had at least a high school

education and was able to communicate in English. (Tr. 26, Finding 8).

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

unable to perform any of his PRW. (Tr. 26, Finding 6). The ALJ also considered whether Plaintiff

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

(Tr. 27, 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 garment

bagger with 117,000 such jobs in the nation economy and price tagger with 285,000 such jobs in the

national economy. Id. Based upon this finding, the ALJ determined Plaintiff had not been under

a disability, as defined by the Act, from May 1, 2015 through the date of his decision or through

April 28, 2017. (Tr. 27, Finding 11).

Plaintiff sought review with the Appeals Council. On March 3, 2018, the Appeals Council

denied this request for review. (Tr. 1-6). On May 9, 2018, Plaintiff filed a Complaint in this case.

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

ECF Nos. 8, 15-16.

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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(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

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

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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 claims the ALJ’s decision is not supported by substantial

evidence in the record. ECF No. 15 at 1-21. Indeed, the only claim Plaintiff raises is that the ALJ

erred in assessing his subjective complaints. Id. Thus, the Court will only address 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. § 416.929.1 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

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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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. 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. The ALJ considered Plaintiff’s subjective complaints, medical records, daily activities,

medication, aggravating factors, and functional limitations. (Tr. 19-26). In his opinion, the ALJ

engaged in a thorough review of a majority the Polaski factors. Id. This was all the ALJ was

required to do. See Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004) (the “ALJ, in

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determining a claimant’s credibility in a social security disability benefits case, need not explicitly

discuss each Polaski factor; it is sufficient if he acknowledges and considers those factors before

discounting the claimant’s complaints”). Upon review, 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).

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 4th day of March 2019.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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