Neighbors v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

KEVIN NEIGHBORS PLAINTIFF

vs. Civil No. 6:18-cv-06133

ANDREW SAUL DEFENDANT

Commissioner, Social Security Administration

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Kevin Neighbors, (“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

Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and

XVI of the Act.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Susan O.

Hickey referred this case to this Court for the purpose of making a report and recommendation.1

The Court, having reviewed the entire transcript and relevant briefing, recommends the ALJ’s

determination be AFFIRMED.

1. Background:

Plaintiff protectively filed his DIB and SSI application on June 14, 2016. (Tr. 12). In these

applications, Plaintiff alleges being disabled due to hemorrhage of left cerebrum, ADHD, fractured

left pubis, laceration of liver, pneumothorax, fractured lumbar vertebra, fractured patella, fractured

1 References to the Transcript will be (Tr. ___) and refer to the document filed at ECF No. 9.

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

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sacrum, lung contusion, fractured left radius and ulna, asthma, traumatic brain injury, and fractured

femur (Tr. 268). Plaintiff alleges an onset date of June 2, 2016. (Tr. 12). These applications were

denied initially and again upon reconsideration. Id.

Plaintiff requested an administrative hearing on February 2, 2017. (Tr. 165-166). Plaintiff’s

administrative hearing was held on November 7, 2017. (Tr. 42-72). At this hearing, Plaintiff was

present and was represented by Don Chaney. Id. Plaintiff and Vocational Expert (“VE”) Myrtle

Johnson testified at this hearing. Id. At this hearing, Plaintiff was twenty-seven (27) years old and

had a high school education. (Tr. 47).

On June 14, 2018, the ALJ entered an unfavorable decision denying Plaintiff’s applications.

(Tr. 12-28). In this decision, the ALJ determined the Plaintiff met the insured status requirements

of the “Act” through December 31, 2020. (Tr. 15, Finding 1). The ALJ also found Plaintiff had not

engaged in substantial gainful activity for a continuous 12-month period. (Tr. 15, Finding 3).

The ALJ found Plaintiff had severe impairments of: traumatic brain injury, multiple fracture

of bones secondary to a motor vehicle collision, depression, anxiety, post-traumatic stress disorder

(PTSD), and borderline intellectual function. (Tr. 15, Finding 4). Despite being severe, the ALJ

determined those impairments did not meet or medically equal the requirements of any of the

Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 15,

Finding 5).

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

(Tr. 20-26, Finding 6). First, the ALJ evaluated Plaintiff’s subjective complaints and found his

claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained

the RFC to perform sedentary work except can only occasionally climb ramps and stairs; can never

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climb ladders, ropes, and scaffolds; can never kneel or crawl, but can occasionally balance, stoop,

and crouch; should not work around unprotected heights or moving mechanical parts; should not

work around loud noises, such as sounds you would hear in traffic or a jackhammer; can perform

simple, routine, and repetitive tasks; can make simple work related decisions; interpersonal contact

should be incidental to work performed, supervision should be simple, direct, and concrete; and is

able to stand, when necessary, at a workstation. Id.

The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 27, Finding 7). The ALJ

found Plaintiff was not capable of performing his PRW. Id. The ALJ, however, also determined

there was other work existing in significant numbers in the national economy Plaintiff could

perform. (Tr. 27, Finding 11). The ALJ based his determination upon the testimony of the VE. Id.

Specifically, the VE testified that given all Plaintiff’s vocational factors, a hypothetical individual

would be able to perform the requirements of a representative occupation such as final assembler of

optical goods with approximately 235,000 such jobs in the nation. Id. Based upon this finding, the

ALJ determined Plaintiff had not been under a disability as defined by the Act from June 2, 2016

through the date of the decision. (Tr. 28, Finding 12).

Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s decision. (Tr. 217-

220). The Appeals Council denied this request for review. (Tr. 1-6). On December 26, 2018,

Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 11,

13. 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)

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(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 argues the ALJ erred (1) by failing to fully and fairly develop the

record, (2) in assessing Plaintiff’s subject complaints, and (3) in the RFC determination. ECF No.

11, Pgs. 6-18. In response, the Defendant argues the ALJ did not err in any of her findings. ECF

No. 13.

A. Duty to Develop Record

The ALJ has the duty to fully and fairly develop the record, even where the Plaintiff is

represented by counsel. If a physician’s report of a claimant’s limitations are stated only generally,

the ALJ should ask the physician to clarify and explain the stated limitations. See Vaughn v.

Heckler, 741 F. 2d 177,179 (8th Cir. 1984). Furthermore, the ALJ is required to order medical

examinations and tests if the medical records presented do not provide sufficient medical evidence

to determine the nature and extent of a claimant’s limitations and impairments. See Barrett v.

Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994). The ALJ must develop the record until the evidence

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is sufficiently clear to make a fair determination as to whether the claimant is disabled. See Landess

v. Weinberger, 490 F. 2d 1187, 1189 (8th Cir. 1974). In addition, a claimant must show not only that

the ALJ failed to fully and fairly develop the record, but he must also show that he was prejudiced

or treated unfairly by the ALJ's failure. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993).

Plaintiff argues the ALJ erred by failing to fully develop the record regarding Plaintiff’s

alleged impairments. ECF No. 11, Pgs. 6-10. Defendant argues substantial evidence shows the ALJ

met the duty to fairly develop the record.

Initially the Court notes Plaintiff has failed to establish that the medical records presented

did not provide sufficient medical evidence to determine the nature and extent of his limitations and

impairments. See Barrett v. Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994). While the ALJ has an

independent duty to develop the record in a social security disability hearing, the ALJ is not required

“to seek additional clarifying statements from a treating physician unless a crucial issue is

undeveloped.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.2004).

Likewise, the ALJ is not required to order a consultative evaluation of every alleged

impairment; he simply has the authority to do so if the existing medical sources do not contain

sufficient evidence to make an informed decision. See Matthews v. Bowen, 879 F.2d 422, 424 (8th

Cir.1989). Thus, the proper inquiry for this Court is not whether a consultative examination should

have been ordered; rather, it is whether the record contained sufficient evidence for the ALJ to make

an informed decision. See id.; see also Payton v. Shalala, 25 F.3d 684, 686 (8th Cir.1994). There

is nothing which establishes the record was inadequate for the ALJ to make this decision. The

medical record included treating physician records, clinic records, physical exam reports, diagnostic

evaluations, and case analysis.

Further, Plaintiff must not only show the ALJ failed to fully and fairly develop the record,

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but that he was prejudiced or treated unfairly by the ALJ’s alleged failure to develop the record.

Plaintiff has not set forth any evidence showing had the ALJ requested additional consultative

examinations, the ALJ would have arrived at a different decision.

Therefore, I find the ALJ satisfied her duty to fully and fairly develop the record in this

matter.

B. Subjective Complaints

Plaintiff claims the ALJ erred in considering his subjective complaints. ECF No. 11, Pgs.

7-11. 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

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.

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).

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

subjective complaints. In her 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. 63-66). Specifically, the ALJ noted the following: (1) Absence of objective medical

findings to support Plaintiff’s allegations, (2) Poor compliance with medical treatment, (3) Work

history, (4) Plaintiff’s described activities of daily living allow for active lifestyle, and (5) Conservative

medical treatment. 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).

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C. RFC

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 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).

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

subject to several additional limitations. ECF No. 9, Pgs. 20-26. Further, substantial evidence

supports the ALJ’s RFC determination.

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

found were not credible. Plaintiff has not referenced any specific limitations the ALJ improperly

assessed or provided any medical evidence or other evidence demonstrating the ALJ erred in

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assessing his limitations. Plaintiffhas the burden of demonstrating her alleged limitations. See, e.g.,

Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000). Without more, the Court cannot find the ALJ

erred in assessing his RFC. The mere fact Plaintiff suffers from a number of different impairments

does not demonstrate he is disabled due to those impairments.

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

establishing his 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 his

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.

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 recommends that it bb AFFIRMED.

The Parties have fourteen (14) days from receipt of this Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The Parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court. See Thompson y. Nix, 897 F.2d 356, 357 (8th Cir. 1990).

ENTERED this 22nd day of January 2020.

wy Barry A Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE

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