# Fendley v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · April 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10012167

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** April 3, 2023
- **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/10012167

## How later opinions describe it (automated extraction)

- rejecting an argument regarding the Listings “out of hand” because the plaintiff did not provide sufficient briefing and only made a conclusory assertion that the ALJ failed to consider one of the Listings

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

TYLER FENDLEY PLAINTIFF

vs. Civil No. 6:22-cv-06102

COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION DEFENDANT

MEMORANDUM OPINION

Tyler Fendley (“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
Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and a period of
disability 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 July 8, 2020. (Tr. 16). In these
applications, Plaintiff alleges being disabled due to polymyositis, hypertension, ADHD, anxiety,
depression, hypothyroidism, high cholesterol, a fatty liver, sleep apnea, and insomnia. (Tr. 291).

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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Plaintiff alleges an onset date of May 9, 2020. (Tr. 16). These applications were denied initially
and again upon reconsideration. Id. Thereafter, Plaintiff requested an administrative hearing, and
this hearing request was granted. (Tr. 32-60).
On July 22, 2021, the ALJ held an administrative hearing in Hot Springs, Arkansas. (Tr.

32-60). At this hearing, Plaintiff was present and was represented by Hans Pullen. Id. Plaintiff
and Vocational Expert (“VE”) William Elmore testified at the administrative hearing. Id. On July
22, 2021, after the administrative hearing, the ALJ entered a fully unfavorable decision denying
Plaintiff’s applications. (Tr. 13-31). The ALJ determined Plaintiff met the insured status
requirements of the Act through June 30, 2024. (Tr. 18, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 8, 2020, his alleged
disability onset date. (Tr. 18, Finding 2).
The ALJ determined Plaintiff had the following severe impairments: polymyositis, obesity,
lumbar degenerative disc disease, bipolar disorder, anxiety disorder, and depression. (Tr. 18-19,
Finding 3). Despite being severe, the ALJ 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. 19-22, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his
Residual Functional Capacity (“RFC”). (Tr. 22-25, 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 occasional climbing, balancing,
stooping, kneeling, crouching, and crawling, as those terms are defined by the
Selected Characteristics of Occupations; cannot constantly use the upper
extremities, but can frequently use the upper extremities to reach, handle, finger,
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and feel; limited to simple, routine, and repetitive work; and limited to simple work-
related decisions.

Id. The ALJ determined Plaintiff was thirty-five (35) years old, which is defined as a younger
individual under 20 C.F.R. § 404.1563(c) (2008) and 416.963(c) (2008), on his alleged disability
onset date. (Tr. 25, Finding 7). The ALJ determined Plaintiff had at least a high school education.
(Tr. 25, Finding 8).
The ALJ determined Plaintiff was unable to perform any of his Past Relevant Work
(“PRW”). (Tr. 25, Finding 6). The ALJ then considered whether Plaintiff retained the capacity to
perform other work existing in significant numbers in the national economy. (Tr. 26-27). The VE
testified at an administrative hearing regarding his ability to perform other occupations. Id.
Specifically, the VE testified Plaintiff retained the capacity to perform the following
sedentary, unskilled occupations: (1) addressor with 10,000 such jobs nationally; (2) telephone
quotation clerk with 5,000 such jobs nationally; and (3) document preparer with 60,000 such job
nationally. (Tr. 26-27). Because Plaintiff retained the capacity to perform this other work, the
ALJ determined Plaintiff was not under a disability, as defined by the Act, from May 9, 2020
through the date of his decision or through July 27, 2021. (Tr. 27, Finding 11).
Plaintiff requested the Appeal’s Council’s review of this unfavorable decision. (Tr. 1-7).
The Appeals Council denied this request on August 17, 2022. Id. Thereafter, on September 21,
2022, Plaintiff appealed his administrative case to this Court. ECF No. 1. The Parties consented

to the jurisdiction of this Court on September 21, 2022. ECF No. 5. Both Parties have filed their
appeal briefs, and this matter is now ripe for consideration. ECF Nos. 13, 15.
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
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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
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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 claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 13. Specifically, Plaintiff raises two arguments for
reversal: (A) the ALJ erred in finding he did not meet Listing 14.05 for his polymyositis and
dermatomyositis; and (B) the ALJ erred in evaluating his subjective complaints. ECF No. 13 at

1-15. The SSA has responded to Plaintiff’s claims and argues there is no basis for reversal. ECF
No. 15.
A. Listing 14.05
Plaintiff claims the ALJ improperly found his impairments did not meet the requirements
of Listing 14.05: polymyositis and dermatomyositis. There are five different subparts of Listing
14.05 (A to E). According to his briefing, it appears Plaintiff claims his impairments meet the
requirements of Listing 14.05E2: “Repeated manifestations of polymyositis or dermatomyositis,

2 Plaintiff references some of the other subparts also, but he does not provide full argument on
any of these subparts. Because each subpart has its own requirements, Plaintiff must separately
argue as to each subpart in order to meet his burden. Otherwise, without the proper briefing, his
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with at least two of the constitutional systems or signs (severe fatigue, fever, malaise, or
involuntary weight loss) and one of the following at the marked level: 1. Limitation of activities
of daily living. 2. Limitation in maintaining social functioning. 3. Limitation in completing tasks
in a timely manner due to deficiencies in concentration, persistence, or pace.”

Plaintiff has the burden to prove his impairments meet all of the required criteria in Listing
14.05E. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990). In the present action, Plaintiff has not
demonstrated he has any of the requisite “marked” limitations in one of the three areas: 1.
Limitation of activities of daily living. 2. Limitation in maintaining social functioning. 3.
Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence,
or pace.
With regarding to Plaintiff’s activities of daily living, the ALJ noted Plaintiff drove, used
a smart phone and social media, went to church at least once a month, and was able to take care of
himself without reminders, take out the trash, and manage funds. (Tr. 24). With regard to social
functioning, the ALJ reasonably concluded Plaintiff only had a mild limitation noting in particular

that Plaintiff got along with others, spent time with friends and family, attended church, dealt
properly with authority, lived with others, and had a good rapport with care providers who
described him as pleasant and cooperative. (Tr. 21).
Finally, with regard to concentration, persistence, or pace, the ALJ reasonably concluded
Plaintiff was only moderately limited, noting his ability to drive, manage funds, handle his own

argument should dismissed. See Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005)
(rejecting an argument regarding the Listings “out of hand” because the plaintiff did not provide
sufficient briefing and only made a conclusory assertion that the ALJ failed to consider one of
the Listings).
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medical care, and attend church. (Tr. 21). Thus, the Court finds Plaintiff has not met his burden
of demonstrating that he meets the requirements of Listing 14.05E.
B. Subjective Complaints
Plaintiff claims the ALJ erred in evaluating his subjective complaints. ECF No. 13 at 10-

15. Specifically, Plaintiff claims the ALJ discounted his subjective complaints based upon his
medical records alone. Id. The Court notes that in assessing the subjective 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. § 416.929.3 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

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 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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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
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).
Here, Plaintiff contends the ALJ discounted his subjective complaints based upon his
medical records alone. This is, however, simply not accurate. Instead, the ALJ considered the
Polaski factors as outlined above and noted the following:
The allegations of totally disabling limitations are not consistent with the overall
record outlined herein. The examinations in the treating record discussed earlier are
consistent with claimant’s improvement with treatment. Claimant also
acknowledged doing better with medication. He also drove and used a smartphone
and social media. He noted that he is able to go to church at least once a month and
gets along with people. (Hearing Testimony). In his function report the claimant
noted that he is able to take care of himself without reminders, take out of the trash,
drive, manage funds, and attend church. (4E). This overall record support the
conclusion claimant can perform a modified range of sedentary work activity.

(Tr. 24). Accordingly, the Court cannot find a basis for reversal on this issue. See Johnson v.
Colvin, 788 F.3d 870, 872 (8th Cir. 2015) (deferring to a credibility determination by an ALJ as
long as that determination is supported by “good reasons” and “substantial evidence”).
4. Conclusion:

Based on the foregoing, the undersigned finds the ALJ’s disability determination is
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supported by substantial evidence in the record. As such, this case is affirmed. A judgment
incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and
58.
ENTERED this 3rd day of April 2023.

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/10012167. Public record. Not legal advice.