# Cressell v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · November 20, 2019

URL: https://www.frixlaw.com/law-library/cases/10010325

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** November 20, 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/10010325

## How later opinions describe it (automated extraction)

- rejecting a claimant’s argument “out of hand” where he made the “conclusory assertion that the ALJ failed to consider whether he met listings 12.02 or 12.05C because Vandenboom provides no analysis of the relevant law or facts regarding these listings”

## Opinion text

INW TEHSET UERNNIT DEDIS TSRTAICTTE OS FD AISRTKRAICNTS CAOS URT
TEXARKANA DIVISION

DONNA CRESSELL PLAINTIFF

vs. Civil No. 4:18-cv-04164

COMMISSIONER, SOCIAL DEFENDANT
SECURITY ADMINISTRATON

MEMORANDUM OPINION

Donna Cressell (“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 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. 5.1 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 June 17, 2015. (Tr. 50). In this
application, Plaintiff alleges being disabled due to heart disease, rheumatoid arthritis in her left
knee, high blood pressure, high cholesterol, chronic back pain, and carpal tunnel syndrome in both
hands. (Tr. 231). Plaintiff alleges an onset date of June 1, 2009 but later amended that alleged

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. 11. These
references are to the page number of the transcript itself not the ECF page number.
onset date to June 20, 2016. (Tr. 50). This application was denied initially and again upon
reconsideration. (Tr. 103-131).
After Plaintiff’s application was denied, Plaintiff requested an administrative hearing on
this application, and this hearing request was granted. (Tr. 68-102). On August 21, 2017, the SSA
held an administrative hearing in Shreveport, Louisiana. (Tr. 68-102). At this hearing, Plaintiff
was present and was represented by Imogene MacDonald. Id. Plaintiff and Vocational Expert
(“VE”) Ivory Youngblood testified at this hearing. Id.

On May 25, 2018, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s application. (Tr. 47-67). The ALJ found Plaintiff met the insured
status requirements of the Act through December 31, 2018. (Tr. 52, Finding 1). The ALJ found
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since June 20, 2016, her
amended alleged onset date. (Tr. 53, Finding 2). The ALJ found Plaintiff had the following severe
impairments: degenerative disc disease (DDD) of the cervical and lumbar spines, fibromyalgia,
status post ST-elevation myocardial infarction (STEMI), hypertension, bilateral carpal tunnel
syndrome status post right carpal tunnel release and atypical chest pain. (Tr. 53-54, 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. 54, 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) except she can occasionally climb ramps and stairs; cannot climb
ladders, ropes or scaffolds; can occasionally balance, kneel, stoop, crouch and
crawl; can occasionally reach overhead and can, otherwise, frequently reach, handle
and finger.

Id.
The ALJ evaluated her Past Relevant Work (“PRW”). (Tr. 58-59, 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/cleaner (light,
unskilled). Id.
The ALJ also determined Plaintiff retained the capacity to perform other occupations in
significant numbers in the national economy, including the following: (1) short order cook (light,
semi-skilled) with approximately 112,786 such jobs nationally; (2) counter clerk (light, unskilled)
with approximately 255,787 such jobs nationally; (3) usher (light, unskilled) with approximately
33,961 such jobs nationally; and (4) house sitter (light, unskilled) with approximately 28,350 such
jobs nationally. (Tr. 59).
Because Plaintiff retained the capacity to perform her PRW and could perform this other
work, the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from
June 20, 2016 through the date of his decision on May 31, 2018. (Tr. 59, Finding 7).
Plaintiff requested the Appeals Council’s review of the ALJ unfavorable disability
determination. On November 17, 2018, the Appeals Council declined to review the ALJ’s
disability determination. (Tr. 1-7). On December 10, 2018, Plaintiff filed the present appeal. ECF
No. 1. The Parties consented to the jurisdiction of this Court on December 11, 2018. ECF No. 5.
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. 13 at 1-19. Specifically, Plaintiff raises two arguments
for reversal: (A) the ALJ erred in assessing Plaintiff’s RFC at the light exertional level; and (B)
the ALJ erred in his credibility assessment. Id. The Court will address both arguments.2

2 It appears Plaintiff also claims her impairments meet the requirements of Listing 1.04. ECF No. 13 at 6.
Plaintiff, however, has provided no analysis of this Listing or the applicable law or made any
demonstration as to how her impairments meet those requirements. Thus, the Court will not address this
issue further. See Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (rejecting a claimant’s
argument “out of hand” where he made the “conclusory assertion that the ALJ failed to consider whether
he met listings 12.02 or 12.05C because Vandenboom provides no analysis of the relevant law or facts
regarding these listings”).
A. Plaintiff’s RFC
Plaintiff claims the ALJ erred in assessing her RFC. ECF No. 14 at 2-15. Upon review,
the Court finds the ALJ’s RFC determination is supported by substantial evidence in the record,
and the Court finds no basis for reversal on this issue. An ALJ’s determination of a claimant’s
RFC is based on all the evidence in the record, including “the medical records, observations of
treating physicians and others, and an individual’s description of [her] limitations.” Krogmeier v.
Barnhart, 294 F.3 1019, 1024 (8th Cir. 2002).
Consistent with the evidence of record, the ALJ found Plaintiff retained the capacity to
perform light work with limitations. Plaintiff claims her back pain causes her to be disabled, but
her treatment records reflect she has normal muscle strength and range of motion in both arms and

legs. (Tr. 1260). Indeed, Plaintiff has supplied no evidence to establish the ALJ’s decision is not
supported by substantial evidence in the record. As such, this claim should be dismissed.
B. ALJ’s Credibility Assessment
Plaintiff claims the ALJ erred in assessing her credibility. ECF No. 13 at 15-19. 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. § 416.929.3 See Shultz v. Astrue, 479 F.3d 979, 983 (2007).

3 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
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. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).

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.
In the present action, the Court finds the ALJ fully complied with the requirements of
Polaski. (Tr. 57-58). Notably, while the ALJ did consider Plaintiff’s medical records, the ALJ
also considered Plaintiff’s daily activities, Plaintiff’s failure to “show up” for physical therapy for
her back pain, and Plaintiff’s treatment in his 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 20th day of November 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/10010325. Public record. Not legal advice.