recognizing “we [SSA] defer to the ALJ’s determinations regarding the credibility of testimony, as long as those determinations are supported by good reasons and substantial evidence”
How later courts described this case
- recognizing “we [SSA] defer to the ALJ’s determinations regarding the credibility of testimony, as long as those determinations are supported by good reasons and substantial evidence”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
SCOTT VANWINKLE PLAINTIFF
vs. Civil No. 4:22-cv-04008
COMMISSIONER, SOCIAL DEFENDANT
SECURITY ADMINISTRATION
MEMORANDUM OPINION
Scott VanWinkle (“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
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. 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 his disability applications on August 10, 2015 (DIB application)
and on September 17, 2015 (SSI application). (Tr. 15). In these applications, Plaintiff alleges a
disability onset date of May 1, 2014. Id. Plaintiff alleges being disabled due to a back injury. (Tr.
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.
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210). These applications were denied initially on October 16, 2015, and these applications were
denied again upon reconsideration on February 29, 2016. (Tr. 15). Plaintiff then requested an
administrative hearing, and this hearing request was granted. (Tr. 38-61). Plaintiff’s
administrative hearing was held on October 2, 2017. Id. At this hearing, Plaintiff and Vocational
Expert (“VE”) Lenora Maatouk testified. Id.
On January 10, 2018, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s applications. (Tr. 15-26). Plaintiff appealed that unfavorable decision
to this Court. (Tr. 974-977). As a result of that appeal, this Court reversed and remanded
Plaintiff’s case for further consideration of the Polaski factors and his subjective complaints. (Tr.
979-986). After this remand, the ALJ held two additional administrative hearings. (Tr. 896-948).
The ALJ also entered a second decision. (Tr. 868-895). This decision was partially favorable. Id.
In this decision, the ALJ found Plaintiff met the insured status requirements of the Act
through December 31, 2018. (Tr. 873, Finding 1). The ALJ determined Plaintiff had not engaged
in Substantial Gainful Activity (“SGA”) since his alleged onset date of May 1, 2014. (Tr. 874,
Finding 2). The ALJ determined that, as of his alleged onset date, he had the following severe
impairments: degenerative disc disease (DDD) and brachial neuritis. (Tr. 874-875, 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. 875-876, Finding 4).
As for his age, the ALJ determined Plaintiff was closely approaching advanced age prior
to January 1, 2020. (Tr. 884, Finding 7). On January 1, 2020, Plaintiff’s age category changed to
an individual of advanced age. Id. In his decision, the ALJ evaluated Plaintiff’s subjective
complaints and determined his Residual Functional Capacity (“RFC”). (Tr. 876-883, Finding 5).
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Specifically, the ALJ found Plaintiff retained the following RFC:
After careful consideration of the entire record, the undersigned finds that since the
alleged onset date, the claimant has the residual functional capacity to perform can
use the left non-dominant upper extremity occasionally for overhead reaching; can
occasionally stoop, crouch, crawl and kneel; cannot climb ladders, ropes or
scaffolds; can occasionally climb stairs and ramps; and case use foot controls
occasionally.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”), and the ALJ found Plaintiff
was unable to perform any of his PRW. (Tr. 884-885). The ALJ determined that prior to January
1, 2020, there were jobs that existed in significant numbers in the national economy that Plaintiff
could have performed. Id. These included the following: (1) price marker (light, unskilled) with
129,388 such jobs nationally; (2) cashier II (light, unskilled) with 569.540 such jobs nationally;
and (3) hotel housekeeper (light, unskilled) with 220,258 such jobs nationally. (Tr. 885).
The ALJ also determined that beginning on January 1, 2020, Plaintiff’s age category
changed. (Tr. 885, Finding 11). As of that date, considering his age, education, work experience,
and RFC, there were no jobs that existed in significant numbers the national economy that he could
perform. (Tr. 885, Finding 11). The ALJ therefore found that Plaintiff was not disabled prior to
January 1, 2020 but became disabled on that date and continued to be disabled through the date of
his decision. (Tr. 885, Finding 12).
Plaintiff requested the Appeals Council’s review of the ALJ unfavorable disability
determination. (Tr. 861-867). On December 7, 2021, the Appeals Council declined to review the
ALJ’s disability determination. Id. On January 26, 2022, Plaintiff filed the present appeal. ECF
No. 1. The Parties consented to the jurisdiction of this Court on January 26, 2022. ECF No. 5.
This case is now ready for decision.
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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).
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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 two arguments for reversal: (A) the ALJ erred by failing
to resolve the discrepancy between the VE’s testimony and the Dictionary of Occupational Titles
(“DOT”); and (2) the ALJ erred in discrediting his need for surgery since January 1, 2015. ECF
No. 15 at 1-18. The Court will consider these claims separately.
A. Potential Discrepancy
Plaintiff argues the ALJ did not resolve a discrepancy between the VE’s testimony and the
DOT. ECF No. 15 at 3-15. With his argument, Plaintiff claims the ALJ found he was limited to
only “occasional” reaching, but the three occupations the ALJ identified for Plaintiff all required
“frequent” reaching and handling under the DOT. Id. Plaintiff claims the ALJ did not resolve this
discrepancy. Id.
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Upon review of the transcript in this matter, however, the ALJ specifically addressed the
fact the VE’s testimony must be consistent with the DOT:
Q: Ms. Maatouk, you’re a vocational expert in a file maintained by the Office
of Hearing Operations?
A: Yes, sir.
Q: Have you had any contact either personally or professionally with the
claimant prior to the hearing today?
A: No, sir.
Q: And are you being compensated for your appearance?
A: Yes, sir.
Q: Is that in any way going to influence the nature of your testimony?
A: No, sir.
Q: Are you familiar with the Dictionary of Occupational Titles and its
companion publications?
A: Yes, sir.
Q: And you understand that if your testimony today in terms of how jobs are
performed is in conflict with how they are defined in those publications,
you must bring that to my attention, rectify any inconsistencies and provide
me with a basis for your testimony?
A: Yes, sir.
Q: And you’ll do so?
A: Yes, sir.
(Tr. 917-918).
The ALJ then posed a hypothetical to the VE that restricted a hypothetical individual to
“occasional” overhead reaching: “the individual can use the left non-dominant upper extremity
occasionally for overhead reaching, and would not otherwise be restricted in terms of manipulative
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functioning.” (Tr. 920). This hypothetical reflected the limitations in Plaintiff’s RFC. (Tr. 876-
883, Finding 5). Based upon this hypothetical, the VE identified three jobs Plaintiff could perform:
price marker, cashier II, and hotel housekeeper. (Tr. 921). After the VE identified those jobs, the
ALJ and the VE then engaged in the following exchange regarding the DOT:
Q: Just bear with me for a moment. Is the DOT—well, the appeals council
noted that the DOT doesn’t address—differentiate overhead reaching from
other direction, and also I would not that it doesn’t address the difference
between dominance and non-dominance, is that correct?
A: That’s correct, so –
Q: Okay.
A: --my answers regarding those issues are based on my experience in job
placement.
Id.
Upon review, and based upon the transcript, there is no basis for a finding that the VE’s
testimony was inconsistent with the DOT or that the ALJ did not resolve any apparent conflicts.
The ALJ has complied with his responsibility for resolving any apparent conflicts, and the Court
finds no basis for reversing this determination. See Welsh v. Colvin, 765 F.3d 926, 930 (8th Cir.
2014) (finding that “[w]hen an ALJ has posed a hypothetical that accurately reflects the RFC
finding, questioned the VE about any apparent inconsistencies with the relevant DOT job
descriptions, and explained his decision to credit the VE’s testimony, the ALJ has complied with
SSR 00-4p, and we review his decision under the deferential substantial evidence standard.”).
B. Plaintiff’s Need for Surgery
Plaintiff claims the ALJ “erred in discrediting” his “need for surgery since January 1,
2015.” ECF No. 15 at 15-18. In raising this argument, Plaintiff argues the ALJ erred in
discounting his subjective complaints. Id. The Court notes that in assessing the subjective
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allegations 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
allegations 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
allegations. 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
allegations are not entirely reliable, the ALJ’s determination of subjective allegations 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 allegations “solely because the objective medical evidence does not
fully support them [the subjective allegations].” Polaski, 739 F.2d at 1322.
When discounting a claimant’s subjective allegations of pain, the ALJ must make a specific
determination regarding that claimant’s subjective allegations, 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
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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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 Court finds the ALJ provided sufficient reasons for discounting
Plaintiff’s subjective complaints. The ALJ recognized Plaintiff had received inconsistent medical
treatment (Tr. 879), Plaintiff used conservative medical treatment (Tr. 879), and Plaintiff had a
variety of daily activities (Tr. 881, 916). Such findings are sufficient to support the ALJ’s
credibility determination. See Reece v. Colvin, 834 F.3d 904, 908 (8th Cir. 2016) (recognizing
“we [SSA] defer to the ALJ’s determinations regarding the credibility of testimony, as long as
those determinations are supported by good reasons and substantial evidence”). Accordingly, the
Court finds no basis for reversing the ALJ’s determination.
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 18th day of October 2022.
Barry A. Bryant
/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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