Fuller v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

ROXIE A. FULLER PLAINTIFF

vs. Civil No. 2:18-cv-02154

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Roxie A. Fuller (“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 applications for

Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), 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. 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 applications on April 29, 2016. (Tr. 15). In these

applications, Plaintiff alleges being disabled due to a herniated disc, arm problems, pelvic problems,

and anxiety. (Tr. 251). Plaintiff alleges an onset date of April 9, 2013. (Tr. 15). Her applications

were denied initially and again upon reconsideration. (Tr. 75-150).

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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After Plaintiff’s applications were denied, Plaintiff requested an administrative hearing on

these applications, and this hearing request was granted. (Tr. 30-70). Thereafter, on October 5,

2017, the SSA held an administrative hearing on Plaintiff’s applications in Fort Smith, Arkansas.

Id. At this hearing, Plaintiff was present and was represented by Matthew Ketcham. Id. Plaintiff

and Vocational Expert (“VE”) Barbara Hubbard testified at this hearing. Id.

On December 29, 2017, after the administrative hearing, the ALJ entered a fully unfavorable

decision denying Plaintiff’s applications. (Tr. 12-29). The ALJ found Plaintiff met the insured

status requirements of the Act through March 31, 2018. (Tr. 17, Finding 1). The ALJ found Plaintiff

had not engaged in Substantial Gainful Activity (“SGA”) since April 9, 2013, her alleged onset date.

(Tr. 17, Finding 2). The ALJ determined Plaintiff had the following severe impairments:

osteoarthritis of the left shoulder, chronic lower back pain syndrome, anxiety, and depression. (Tr.

17, Finding 3). Despite being severe, the ALJ also 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. 18-19, Finding 4).

The ALJ determined Plaintiff had a limited education but was able to communicate in

English. (Tr. 21, Finding 8). The ALJ determined Plaintiff was thirty-eight (38) years old, which

is defined as a “younger individual” under 20 C.F.R. § 416.963(c) (SSI) and 20 C.F.R. § 404.1563(c)

(DIB). (Tr. 21, Finding 7).

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

(Tr. 19-20, Finding 5). Specifically, the ALJ found Plaintiff retained 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 limited to jobs with simple tasks, simple

instructions, and incidental contact with the public, and involve only occasional

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overhead lifting.

Id.

The ALJ determined Plaintiff was unable to perform any of her Past Relevant Work

(“PRW”). (Tr. 20, Finding 6). The ALJ, however, found Plaintiff did retain the capacity to perform

other work existing in significant numbers in the national economy. (Tr. 21-22, Finding 10). In

making this determination, the ALJ relied upon the testimony of the VE. Id. Based upon this

testimony, the ALJ determined Plaintiff retained the capacity to perform work as a price marking

clerk with 304,000 such jobs nationally; routing clerk with 53,400 such jobs nationally; and

photocopy machine operator with 15,600 such jobs nationally. (Tr. 21). 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 April 9, 2013 through the date of his decision or through January 4,

2018. (Tr. 22, Finding 11).

Plaintiff requested the Appeals Council’s review of the ALJ unfavorable disability

determination. On July 9, 2018, the Appeals Council declined to review the ALJ’s disability

determination. (Tr. 1-6). On September 5, 2018, Plaintiff filed the present appeal. ECF No. 1. The

Parties consented to the jurisdiction of this Court on September 10, 2018. ECF No. 7. 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

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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

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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 claims the ALJ’s disability determination is not supported by

substantial evidence in the record. ECF No. 15 at 1-9. Specifically, Plaintiff raises two arguments

for reversal: (A) the ALJ erred by failing to develop the record as to her RFC; and (B) the ALJ erred

in his credibility determination. Id. The Court will address both of these arguments for reversal.

A. Record Development

Plaintiff claims the ALJ erred in developing the record in this case. ECF No. 15 at 5-7. As

Plaintiff claims, “For the ALJ to substitute his own medical opinion for that of the record’s

physicians and not have properly developed the record on the Plaintiff’s RFC was error.” Id. Upon

review of this argument, the Court finds Plaintiff has presented no basis for reversal on this issue.

In determining whether an ALJ has fully and fairly developed the record, the proper inquiry

is whether the record contains sufficient evidence for the ALJ to make an informed decision. See

Payton v. Shalala, 25 F.3d 684, 686 (8th Cir. 1994). The ALJ is only required to develop a

reasonably complete record. See Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994). Further, to be

entitled to a remand, a claimant must demonstrate he or she was prejudiced or treated unfairly by the

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ALJ’s failure. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993). Absent such prejudice

or unfairness, the Court cannot remand. Id. In the present case, apart from Plaintiff’s bare claim on

this matter, Plaintiff has not demonstrated how she was in any way prejudiced by the ALJ’s failure

to further develop the record. See ECF No. 15 at 5-7. Thus, the Court finds no basis for a remand.

B. Credibility Determination

Plaintiff claims the ALJ erred in his credibility determination. ECF No. 16 at 1-12. In her

briefing, Plaintiff claims the ALJ’s “blatant lack of any Polaski analysis was error.” Id. Upon

review of this argument, the Court also finds no basis for reversal on 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

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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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 performed a full Polaski evaluation. (Tr. 19-20). In

performing this evaluation, the ALJ recognized Plaintiff’s daily activities did not fully support her

subjective allegations:

The claimant has good use of the dominant right hand/arm. The claimant testified

that she lives with her uncle and helps care for him. The claimant indicated that she

is able to perform personal care with no limitations, sometimes prepare meals, do

some cleaning, laundry, and mowing, drive a car, and pay bills.

(Tr. 20). The ALJ also fully considered Plaintiff’s medications and treatment records and noted

inconsistencies between those and her subjective complaints. (Tr. 20). Based upon this review, the

Court finds the ALJ fully complied with Polaski and finds no basis for reversal on this issue. See

Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003) (recognizing the court defers to the ALJ’s

disability determination regarding credibility as long as that determination is supported by “good

reasons and substantial evidence”).

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4. Conclusion:

Based on the foregoing, the undersigned finds no basis for reversing the decision of the ALJ.

As such, it is affirmed. A judgment incorporating these findings will be entered pursuant to Federal

Rules of Civil Procedure 52 and 58.

ENTERED this 21st day of March 2019.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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