Dunn v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

KADENA DUNN PLAINTIFF

vs. Civil No. 2:22-cv-02093

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION DEFENDANT

MEMORANDUM OPINION

Kadena Dunn (“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 application for

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. Pursuant to this authority, the Court issues

this memorandum opinion and orders the entry of a final judgment in this matter.

1. Background:

Plaintiff filed her disability application on March 12, 2019. (Tr. 11).1 In her application,

Plaintiff alleges being disabled due to fibromyalgia, erythema nodosum, gastroparesis, diabetes,

depression, and hearing issues. (Tr. 216). Plaintiff alleged an onset date of August 22, 2018. (Tr.

11). Plaintiff’s application was denied initially and again upon reconsideration. Id.

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.

Plaintiff requested an administrative hearing on her denied application, and this hearing

request was granted. (Tr. 138-179). This hearing was held on September 22, 2020. (Tr. 68-95).

At this hearing, Plaintiff was present, and represented by Davis Duty. Id. Plaintiff and Vocational

Expert (“VE”), Montie Lumpkin testified at the hearing. Id.

Following the administrative hearing, on November 3, 2020, the ALJ entered an unfavorable

decision. (Tr. 11-27). In this decision, the ALJ determined Plaintiff met the insured status of the

Act through December 31, 2023. (Tr. 13, Finding 1). The ALJ also found Plaintiff had not engaged

in substantial gainful activity (“SGA”) since August 22, 2018. (Tr. 13, Finding 2).

The ALJ determined Plaintiff had the severe impairments of fibromyalgia, atypical

connective tissue disease, gastritis, gastroparesis, gastroesophageal reflux disease (GERD), obesity,

depression, anxiety. (Tr. 14, Finding 3). Despite being severe, the ALJ determined those

impairments did not meet or medically equal the requirements of any of the Listings of Impairments

in 20 CFR Part 404, Subpart P, Appendix 1 (“Listings”). (Tr. 16, Finding 4).

The ALJ considered Plaintiff’s subjective complaints and determined her RFC. (Tr. 18-25).

The ALJ evaluated Plaintiff’s subjective complaints and found the claimed limitations were not

entirely consistent with the medical evidence and other evidence in the record. Id. The ALJ also

determined Plaintiff retained the RFC to perform light work except she could perform simple,

routine, repetitive tasks with few variables and little judgment required; required supervision that is

simple, direct, and concrete; and could handle social interaction that is incidental to the work

performed. Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 25, Finding 6). The

ALJ determined Plaintiff was not capable of performing her PRW. Id. However, the ALJ found

there were jobs in significant numbers in the national economy that Plaintiff could perform. (Tr.

26, Finding 10). With the help of the VE, the ALJ found Plaintiff could perform the representative

occupations of (1) power screwdriver operator with approximately 292,271 jobs in the nation, (2)

injection molding machine tender with approximately 13,260 jobs in the nation, and (3) shipping

and receiving weigher with approximately 9,456 jobs in the nation. Id. Based upon this finding,

the ALJ determined Plaintiff had not been disabled from August 22, 2018, through the date of the

decision. (Tr. 27, Finding 11).

On June 17, 2022, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed

appeal briefs. ECF Nos. 13, 15. 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 decision is not supported by

substantial evidence in the record. ECF No. 13. In making this claim, Plaintiff raises the following

arguments for reversal: (A) the ALJ erred in the RFC determination, (B) the ALJ erred in assessing

her subjective allegations, and (C) the ALJ erred at Step 5. Id. The Court will consider each of

these arguments.

A. RFC Determination

In this matter, the ALJ determined Plaintiff retained the RFC to perform light work with

limitations. (Tr. 18). Plaintiff argues the ALJ erred in this RFC determination. ECF No. 13, Pgs.

13-19. However, substantial evidence supports the ALJ’s RFC determination.

Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required

to determine a claimant’s RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must

be based on medical evidence that addresses the claimant’s ability to function in the workplace. See

Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). The ALJ should consider “‘all the evidence

in the record’ in determining the RFC, including ‘the medical records, observations of treating

physicians and others, and an individual’s own description of his limitations.’” Stormo v. Barnhart,

377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002)).

The Plaintiff has the burden of producing documents and evidence to support his or her claimed

RFC. See Cox, 160 F.3d at1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The mere fact a

claimant has a long list of medical conditions does not demonstrate that person is disabled; instead,

the RFC determination is a function-by-function analysis. See SSR 96-8P, 1996 WL 374184 (July

2, 1996). “The RFC assessment considers only functional limitations and restrictions that result

from an individual’s medically determinable impairment or combination of impairments, including

the impact of any related symptoms.” Id.

The ALJ, however, bears the primary responsibility for making the RFC determination and

for ensuring there is “some medical evidence” regarding the claimant’s “ability to function in the

workplace” that supports the RFC determination. Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir.

2001). Furthermore, this Court is required to affirm the ALJ’s RFC determination if that

determination is supported by substantial evidence on the record as a whole. See McKinney v. Apfel,

228 F.3d 860, 862 (8th Cir. 2000).

Based upon this standard and a review of Plaintiff’s records and allegations in this case, the

Court cannot find Plaintiff has demonstrated having any greater limitations than those found by the

ALJ. The ALJ provided a thorough summary of Plaintiff’s medical records and subjective

complaints in this matter. The mere fact Plaintiff suffers from a number of impairments does not

demonstrate she has more limitations than those found in the RFC assessment above.

In her opinion, the ALJ considered Plaintiff’s alleged impairments and discounted those she

found were not credible. (Tr. 18-25). The ALJ considered the results of objective diagnostic tests

and examination findings and discussed these in her decision. Id. The ALJ also considered the

findings of medical consultants and considered Plaintiff’s testimony and function reports in

assessing her RFC. Id.

Substantial evidence supports the ALJ’s RFC determination. Plaintiff has the burden of

establishing her claimed RFC. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting

Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)). Because Plaintiff has not met the

burden in this case and because the ALJ’s RFC determination is supported by sufficient medical

evidence, this Court finds the ALJ’s RFC determination should be affirmed.

B. Subjective Allegations

Plaintiff claims the ALJ erred in evaluating her subjective allegations of disability. ECF No.

13, Pgs. 19-20. 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. § 416.929.2 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The

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

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 valid, the ALJ’s 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 allegations

“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 allegations of pain, the ALJ must make a specific evaluation

of a 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).

In the present action, the ALJ fully complied with Polaski in her evaluation of Plaintiff’s

subjective allegations. (Tr. 18-25). Indeed, the ALJ opinion outlined her subjective allegations and

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.

noted inconsistencies between those allegations and the record. Id. The ALJ also noted her daily

activities and set forth reasons for finding them not as limiting as described by Plaintiff. Id.

Furthermore, the ALJ carefully summarized Plaintiff’s medical records and noted how she was

receiving treatment and medication for her impairments that appeared to be effective. Id. Based

upon the Court’s review, there is no basis for reversal on this issue. See, e.g., Guilliams v. Barnhart,

393 F.3d 798, 801 (8th Cir. 2005) (recognizing an ALJ may discount a “claimant’s subjective

complaints . . . if there are inconsistencies in the record as a whole”).

C. Step Five Determination

Plaintiff claims she cannot perform the jobs the VE identified at Step Five of the Analysis.

ECF No. 13, Pg. 20. Plaintiff claims the VE identified jobs she could not perform because the ALJ

provided an incomplete hypothetical to the VE. Id. However, as noted above, this Court cannot

find Plaintiff had limitations greater than those found by the ALJ. As such, this Court cannot find

the hypothetical to the VE was improper.

4. Conclusion:

Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits

to Plaintiff, is supported by substantial evidence, and should be affirmed. A judgment incorporating

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

ENTERED this 13th day of April 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE