Wright v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

JAMIE WRIGHT PLAINTIFF

vs. Civil No. 6:20-cv-06039

COMMISSIONER, SOCIAL DEFENDANT

SECURITY ADMINISTRATION

MEMORANDUM OPINION

Jamie Wright (“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 application for a

period of disability, Social Security Income (“SSI”), and Disability Insurance Benefits (“DIB”)

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 his disability applications on July 6, 2017. (Tr. 12, 85, 100). In

these applications, Plaintiff alleges being disabled due to back problems (arthritis), spinal stenosis,

nerve damage in legs and back, and “[sciatic] nerve issues.” (Tr. 12, 17, 85-86, 100-101, 232-245,

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. 15. These

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

261). Plaintiff alleges an onset date of April 16, 2016. (Tr. 12). These applications were denied

initially and again upon reconsideration. (Tr. 157-163, 167-171).

On April 9, 2018, Plaintiff requested a hearing before an Administrative Law Judge

(“ALJ”). (Tr. 172-173). After the administrative hearing, the ALJ entered a fully unfavorable

decision denying Plaintiff’s applications. (Tr. 9-24). The ALJ determined Plaintiff met the insured

status requirements of the Act through December 31, 2018. (Tr. 14, Finding 1). The ALJ also

determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 16,

2016, his alleged onset date. (Tr. 14, Finding 2).

The ALJ then determined Plaintiff had the following severe impairments: lumbar spine

degenerative disc disease status post laminectomy; osteoarthritis; atrial fibrillation; hypertension;

obstructive sleep apnea; and obesity. (Tr. 14, 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 CFR Part 404 Subpart P, Appendix 1. (Tr.

15, Finding 4).

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

Residual Functional Capacity (“RFC”). (Tr. 16-21, 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 sedentary work as defined

in 20 CFR 404.1567(a) and 416.967(a) except the claimant can never climb ladders,

ropes, or scaffolds. The claimant can no more than occasionally climb ramps and

stairs, balance, stoop, kneel, crouch, and crawl. The claimant must avoid all

exposure to hazards and temperature extremes of heat and cold. The claimant must

avoid concentrated exposure to fumes, odors, or gases.

(Tr. 16, Finding 5).

The ALJ found Plaintiff was thirty-six years old (36) 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). (Tr. 21,

Finding 7). The ALJ determined Plaintiff had a high school education and was able to

communicate in English. (Tr. 21, Finding 8). The ALJ then considered whether Plaintiff retained

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

22, Finding 10). Plaintiff and the Vocational Expert (“VE”) testified at the administrative hearing

regarding this issue. (Tr. 38-60). Based upon the VE’s testimony, the ALJ determined Plaintiff

retained the capacity to perform the requirement of representative occupations such as a food and

beverage order clerk with 50,000 jobs nationally and as a call out operator with 40,000 jobs

nationally. (Tr. 22, Finding 10). 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 16, 2016, or through March 29, 2019, the date of his decision. (Tr. 23-24, Finding 11).

Plaintiff requested the Appeal’s Councils review of the unfavorable disability

determination. On February 8, 2020, the Appeals Council declined to review the ALJ’s disability

determination. (Tr. 2-6). On April 1, 2020, Plaintiff filed the present appeal. ECF No. 1. The

parties consented to the jurisdiction of this Court on April 1, 2020. ECF No. 5. Both parties have

filed their appeal briefs and this matter is now ripe for consideration. ECF Nos. 17, 18.

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 his 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 his appeal brief, Plaintiff raises the following two arguments for reversal: (1) the ALJ

erred in finding Plaintiff’s impairments did not meet or equal a Listing; and (2) the ALJ erred in

evaluating Plaintiff’s subjective complaints. ECF No. 17. The Court will address both issues.

A. Listing 1.04

To qualify for disability benefits at step three, a claimant must establish that his impairment

meets or equals a listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). Additionally,

to meet or equal a listing, Plaintiff must prove he meets all of the specific criteria. See Marciniak

v. Shalala, 49 F.3d 1350, 1353 (8th Cir. 1995).

Listing 1.04 requires evidence of disorders of the spine (e.g., herniated nucleus pulposus,

spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis,

vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the

spinal cord WITH:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of

pain, limitation of motion of the spine, motor loss (atrophy with associated muscle

weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is

involvement of the lower back, positive straight-leg raising test (sitting and supine);

or

B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue

biopsy, or by appropriate medically acceptable imaging, manifested by severe burning

or painful dysesthesia, resulting in the need for changes in position or posture more

than once every 2 hours;

or

C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on

appropriate medically acceptable imaging, manifested by chronic nonradicular pain

and weakness, and resulting in an inability to ambulate effectively, as defined in

1.00B2b.

20 C.F.R. pt. 404, subpt. P, app. 1 § 1.04.

Plaintiff claims the ALJ erred in failing to find Plaintiff’s spinal condition did not meet or

equal Listing 1.04. ECF No. 17, p. 3. The ALJ found Plaintiff’s lumbar spine degenerative disc

disease status post laminectomy to be a severe impairment, however, he determined this

impairment did not meet or equal a listing. (Tr. 15, Finding 4.).

Plaintiff’s argument relies heavily on Melanie Newman’s, APRN, opinion regarding the

stringent limitations Plaintiff has and her opinion Plaintiff is unable to work. ECF No. 17, p. 10-

14; (Tr. 856, 869-870). The ALJ did not find Nurse Newman’s opinion persuasive as he concluded

it was not supported by or consistent with overall treatment records, including Plaintiff’s physical

examinations. (Tr. 20). Not long after Plaintiff’s visit to Nurse Newman, Plaintiff presented to

Arkansas Spine and Pain and had an unremarkable physical exam. (Tr. 872-874). Plaintiff

exhibited normal range of motion in his cervical spine and lumbar spine. (Tr. 873-874). He had

a normal gait, normal sensory functions and reflexes, normal motor functions, and was able to heel

and toe walk. (Tr. 874).

Although Plaintiff clearly has limitations and serious health issues, after thoroughly

reviewing the record, Plaintiff fails to demonstrate he meets the requirements of Listing 1.04. The

Court finds the ALJ’s determination that Plaintiff did not meet the requirement of Listing 1.04 was

supported by substantial evidence.

B. Subjective Complaints

Plaintiff also claims the ALJ erred in assessing his subjective complaints. ECF No. 17 at

14-17. 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

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.

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, this Court finds the ALJ properly addressed and discounted Plaintiff’s

subjective complaints. In his opinion, the ALJ addressed the factors from Polaski, 20 C.F.R. §

404.1529, and 20 C.F.R. § 416.929, and stated inconsistencies between Plaintiff’s testimony and

the record. (Tr. 16-21). Specifically, the ALJ noted the following: (1) Absence of objective

medical findings to support Plaintiff’s alleged disabling pain, (2) Plaintiff’s described activities of

daily living inconsistent with the record, (3) Conservative medical treatment, (4) Conditions

controlled by use of his medications, (5) Side effects of his medications, (7) Consideration of

Plaintiffs prior work history, and (8) Consideration of observations and statements submitted by

third parties. Id.

These findings are valid reasons supporting the ALJ’s credibility determination, and this

Court finds the ALJ’s credibility determination is supported by substantial evidence and should be

affirmed. See Lowe, 226 F.3d at 971-72. Accordingly, the ALJ did not err in discounting Plaintiff

complaints of pain. Thus, 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 the ALJ’s disability determination is

supported by substantial evidence in the record and should be affirmed. A judgment incorporating

these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.

ENTERED this 3rd day of June 2021.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE