# Phillips v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · September 12, 2019

URL: https://www.frixlaw.com/law-library/cases/10010210

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** September 12, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10010210

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10010210. Public record. Not legal advice.