Phillips v. Social Security Administration Commissioner

INW TEHSET UERNNIT DEDIS TSRTAICTTE OS FD AISRTKRAICNTS CAOS URT

HOT SPRINGS DIVISION

FELICIA ANN PHILLIPS PLAINTIFF

vs. Civil No. 6:18-cv-06110

COMMISSIONER, SOCIAL DEFENDANT

SECURITY ADMINISTRATON

MEMORANDUM OPINION

Felicia Ann Phillips (“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 a period of disability, 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. 8.1 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 8, 2016. (Tr. 19). In these

applications, Plaintiff alleges being disabled due to high blood pressure, shoulder and stomach

issues, GERD, and borderline diabetes. (Tr. 282). Plaintiff alleges an onset date of January 1,

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” and refer to the document filed at ECF No. 10. These

references are to the page number of the transcript itself not the ECF page number.

2010. (Tr. 19). These applications were denied initially and again upon reconsideration. (Tr. 97-

100).

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

these applications, and this hearing request was granted. (Tr. 41-70). On November 29, 2017, the

SSA held an administrative hearing in Little Rock, Arkansas. Id. At this hearing, Plaintiff was

present and was represented by Hans Pullen. Id. Plaintiff and Vocational Expert (“VE”) Diane

Smith testified at this hearing. Id.

On June 12, 2018, after the administrative hearing, the ALJ entered a fully unfavorable

decision denying Plaintiff’s applications. (Tr. 16-40). The ALJ found Plaintiff met the insured

status requirements of the Act through June 30, 2021. (Tr. 21, Finding 1). The ALJ found Plaintiff

had not engaged in Substantial Gainful Activity (“SGA”) since January 1, 2010, her alleged onset

date. (Tr. 21, Finding 2). The ALJ found Plaintiff had the following severe impairments: major

depressive disorder; obesity; bilateral shoulder arthritis; cervical spine degenerative disc disease;

gastritis, gastroesophageal reflux disease (“GERD”); and a history of peptic ulcers. (Tr. 22,

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. 22-25, Finding 4).

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

Residual Functional Capacity (“RFC”). (Tr. 25-32, 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 she can occasionally reach overhead

bilaterally; can frequently handle, finger, and feel bilaterally; and can occasionally

stoop and crouch. She is limited to work involving simple, routine, and repetitive

tasks. She can make simple work-related decisions. She can perform work where

interpersonal contact is incidental to the work performed. She requires simple,

direct, and concrete supervision.

Id.

The ALJ evaluated her Past Relevant Work (“PRW”). (Tr. 32-33, Finding 6). The VE

testified at the administrative hearing regarding this issue. Id. Based upon that testimony, the ALJ

determined Plaintiff retained the capacity to perform her PRW as a housekeeper (light, unskilled).

Id. Because Plaintiff retained the capacity to perform her PRW, the ALJ determined Plaintiff had

not been under a disability, as defined by the Act, from January 1, 2010 through the date of her

decision or through June 15, 2018. (Tr. 34, Finding 7). Because Plaintiff retained the capacity to

perform her PRW, the ALJ determined Plaintiff had not been under a disability, as defined by the

Act, from January 1, 2010 (alleged onset date) through June 15, 2018 (ALJ’s decision date). (Tr.

34, Finding 7).

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

determination. On October 4, 2018, the Appeals Council declined to review the ALJ’s disability

determination. (Tr. 1-6). On November 2, 2018, Plaintiff filed the present appeal. ECF No. 1.

The Parties consented to the jurisdiction of this Court on December 27, 2018. ECF No. 8. 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

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:

In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by

substantial evidence in the record. ECF No. 12 at 1-21. Specifically, Plaintiff raises three

arguments for reversal: (A) the ALJ erred in finding she did not suffer from a combination of

impairments that equaled a Listing; (B) the ALJ erred by presenting an incomplete hypothetical to

the VE; and (C) the ALJ erred in assessing her credibility. Id. The Court will address each of

these arguments.

A. Impairments in Combination

Plaintiff claims her impairments meet the requirements of Listings 5.06 (inflammatory

bowel disease) and 1.02B2c (major dysfunction of a joint (due to any cause)). ECF No. 12 at 2-

17. First, Listing 5.06 requires inflammatory bowel disease “documented by endoscopy, biopsy,

appropriate medically acceptable imaging, or operative findings.” In the present action, Plaintiff

references her medical records, but Plaintiff does not demonstrate how she meets the specific

requirements of Listing 5.06. Plaintiff has the burden of demonstrating her impairments meet the

requirements of Listing 5.06. See Cox, 160 F.3d at 1206. Without more, the Court finds Plaintiff

has not meet her burden of establishing her impairments meet the requirements of Listing 5.06.

Second, Plaintiff claims her impairments meet the requirements of Listing 1.02. Such a

listing is “[c]haracterized by gross anatomical deformity (e.g., subluxation, contracture, bony or

fibrous ankylosis, instability).” Here, Plaintiff has not provided evidence demonstrating she

suffers from such a deformity. Accordingly, the Court finds Plaintiff has not meet her burden of

establishing her impairments meet the requirements of Listing 1.02.

B. Hypothetical to the VE

Plaintiff claims the hypothetical to the VE did not include all of her limitations. ECF No.

12 at 17-18. With this argument, Plaintiff claims based upon “all of the above evidence,” she has

limitations greater than those included by the ALJ in her hypothetical to the VE. Upon review of

Plaintiff’s case, however, the ALJ included in her hypothetical to the VE all of the limitations she

found were credible. This was entirely proper. See Cox v. Astrue, 495 F.3d 614, 620-21 (8th Cir.

2007) (recognizing that testimony from a vocational expert is substantial evidence “when the

testimony is based on a correctly phrased hypothetical question that captures the concrete

consequences of a claimant’s deficiencies”). Thus, the Court finds no basis for reversal on this

issue.

C. Credibility Assessment

Finally, Plaintiff claims the ALJ erred in assessing her credibility. ECF No. 12 at18-20.

Plaintiff claims “the ALJ [improperly] summarized Plaintiff’s medical records and discounted her

subjective complaints because they were not supported by the objective medical records.” Id. 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

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.

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. (Tr. 25-32). Notably, while the ALJ did consider Plaintiff’s medical records, the ALJ

also considered Plaintiff’s daily activities, medication, and treatment in her decision to discount

Plaintiff’s subjective complaints. Id. Thus, the Court finds Plaintiff has provided no basis for

reversal on this issue.

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 12th day of September 2019.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE