West v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

ESTEBAN R. WEST PLAINTIFF

vs. Civil No. 2:19-cv-02097

ANDREW SAUL DEFENDANT

Commissioner, Social Security Administration

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Esteban West (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social

Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of

the Commissioner of the Social Security Administration (“SSA”) denying his application for

Supplemental Security Income (“SSI”) and a period of disability under Title XVI of the Act.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2005), the Honorable P. K.

Holmes, III referred this case to the undersigned for the purpose of making a report and

recommendation. The Court, having reviewed the entire transcript and relevant briefing,

recommends the ALJ’s determination be AFFIRMED.1

1. Background:

Plaintiff’s application for SSI was filed on March 13, 2017. (Tr. 139). Plaintiff alleged he

was disabled due to high blood pressure and diabetes. (Tr. 316). Plaintiff initially alleged an onset

date of October 1, 1992. Id.This application was denied initially and again upon reconsideration.

(Tr. 139). Thereafter, Plaintiff requested an administrative hearing on his application and this

1 References to the Transcript will be (Tr. ___) and refer to the document filed at ECF No. 10.

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

1

hearing request was granted. (Tr. 228-230).

Plaintiff’s administrative hearing was held on October 2, 2018. (Tr. 154-184). Plaintiff was

present and was represented by counsel, David Harp, at this hearing. Id. Plaintiff and Vocational

Expert (“VE”) Montie Lumpkin testified at this hearing. Id. At the hearing, Plaintiff amended his

alleged onset date to March 10, 2017. (Tr. 139). At the time of this hearing, Plaintiff was thirty-one

(31) years old and had an eleventh grade education. (Tr. 161).

On November 23, 2018, the ALJ entered an unfavorable decision denying Plaintiff’s

application for SSI. (Tr. 139-149). In this decision, the ALJ determined Plaintiff had not engaged

in Substantial Gainful Activity (“SGA”) since March 13, 2017. (Tr. 141, Finding 1). The ALJ also

determined Plaintiff had the severe impairments of insulin dependent diabetes mellitus (diabetes)

with peripheral neuropathy, hypertension, and gastroesophageal reflux disease (GERD) with

esophagitis. (Tr. 141, Finding 2). The ALJ then determined Plaintiff’s impairments did not meet

or medically equal the requirements of any of the Listing of Impairments in Appendix 1 to Subpart

P of Regulations No. 4 (“Listings”). (Tr. 142, Finding 3).

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

(Tr. 142-148). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found his

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

the RFC for the full range of light work. (Tr. 142, Finding 4).

The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 148, Finding 5). The ALJ

found Plaintiff had no PRW. Id. The ALJ, however, also determined there was other work existing

in significant numbers in the national economy Plaintiff could perform. (Tr. 149, Finding 9). The

ALJ then used Medical-Vocational Guidelines Rule 202.17 to reach a conclusion of “not disabled,”

2

based on Plaintiff’s age, education, vocational background, and residual functional capacity. (Tr.

149). Based upon this finding, the ALJ determined Plaintiff had not been under a disability as

defined by the Act since March 13, 2017. (Tr. 149, Finding 10).

Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 131-135).

See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr.

2-7). On August 1, 2019, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed

appeal briefs. ECF Nos. 12, 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)

(2006); 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,

3

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:

Plaintiff brings the present appeal claiming the ALJ erred: (A) in the RFC determination,

(B) in his credibility analysis, and (C) improperly applied the Grids. ECF No. 12, Pgs. 10-16. In

response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 13.

4

A. 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 the full range of

light work. (Tr. 142). Plaintiff argues the ALJ erred in this RFC determination. ECF No. 12, Pgs.

10-15. However, substantial evidence supports the ALJ’s RFC determination.

In his opinion, the ALJ considered Plaintiff’s alleged impairments and discounted those he

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

5

assessing his limitations. Plaintiff the burden of demonstrating his 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.

B. ALJ’s Credibility Determination

Plaintiff claims the ALJ erred in considering his subjective complaints. ECF No. 12, Pgs.

13-14. 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." 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

> 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.

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

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. 142-148). Specifically, the ALJ noted the following: (1) Absence of objective medical

findings to support Plaintiff’s alleged disabling pain, (2) Poor compliance with medical treatment, (3)

Work history while incarcerated, (4) Plaintiff’s described activities of daily living allow for active

lifestyle, and (5) No employment earning from 2010 through 2017. 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.

7

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).

C. Grids

If the ALJ properly determines that a claimant’s RFC is not significantly diminished by a

non-exertional limitation, then the ALJ may rely exclusively upon the Grids, and is not required to

hear the testimony from a VE. However, the ALJ may not apply the Grids, and must hear testimony

from a VE, where a claimant’s RFC is significantly diminished by a non-exertional limitation. See

McGeorge v. Barnhart, 321 F.3d 766, 768-69 (8th Cir. 2003)

A “non-exertional limitation” is a limitation or restriction which affect a claimant’s “ability

to meet the demands of jobs other than the strength demands.” 20 C.F.R. § 404.1569a(a). Non-

exertional limitations include the following: (1) difficulty functioning due to pain; (2) difficulty

functioning due to nervousness, anxiety, or depression; (3) difficulty maintaining attention or

concentration; (4) difficultyunderstanding or remembering detailed instructions; (5) difficultyseeing

or hearing; (6) difficulty tolerating a physical feature of a certain work setting (such as dust or

fumes); or (7) difficulty performing the manipulative or postural functions of some work such as

reaching, handling, stooping, climbing, crawling, or crouching. See 20 C.F.R. § 404.1569a(c)(1).

In this matter, the ALJ found Plaintiff did not have non-exertional limitations and had the

RFC to perform the full range of light work. (Tr. 142, Finding 4). As a result, the ALJ used

Medical-Vocational Guidelines Rule 202.17 to reach a conclusion of “not disabled,” based on

Plaintiff’s age, education, vocational background, and residual functional capacity. See 20 C.F.R.

pt. 404, subpt. P, app. 2, § 202.22.

8

Plaintiff has failed to establish he was unable to perform the full range of light work, as a

result, the court finds the ALJ’s use of Medical-Vocational Grids to reach a conclusion of “not

disabled” is supported by substantial evidence.

4. Conclusion:

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

to Plaintiff, is supported by substantial evidence in the record. This Court recommends that the

ALJ’s decision be 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 v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).

ENTERED this 28th day of April 2020.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE

9