Foster v. Social Security Administration Commissioner

IN TWHEES UTENRITNE DDI SSTTARITCETS ODFIS ATRRKICATN CSOAUS RT

HOT SPRINGS DIVISION

JACQUELINE M. FOSTER PLAINTIFF

vs. Civil No. 6:21-cv-06104

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION DEFENDANT

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Jacqueline M. Foster (“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

applications for Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”),

and a period of disability 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.

In accordance with that referral, and after reviewing the arguments in this case, this Court

recommends Plaintiff’s case be AFFIRMED.

1. Background:

Plaintiff originally filed her disability applications on September 8, 2015. (Tr. 37).1 In her

applications, Plaintiff alleges being disabled due to chronic back pain, knee problems, diabetes,

IBS, and depression. (Tr. 291). Plaintiff alleged an onset date of September 3, 2014. (Tr. 37).

Plaintiff’s applications were denied initially on December 11, 2015, and these applications were

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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denied again upon reconsideration on March 29, 2016. (Tr. 37). Plaintiff requested an

administrative hearing on these denied applications, and this hearing request was granted. (Tr. 56-

86). Subsequent to that hearing, the ALJ entered a fully unfavorable decision on Plaintiff’s case.

(Tr. 34-55). Plaintiff appealed that decision to this Court, and Plaintiff’s case was reversed and

remanded for further administrative review and for a full evaluation of Plaintiff’s subjective

allegations. See Foster v. SSA, 6:18-cv-06132 (W.D. Ark. Dec. 19, 2019).

In the interim, Plaintiff filed a subsequent disability application on September 17, 2019,

which was consolidated with the remanded claim by order of the Appeals Council. Thereafter,

another ALJ held a second administrative hearing. (Tr. 2040-2082). At this hearing, Plaintiff was

present and was represented by counsel, Laura McKinnon. Id. Plaintiff and Vocational Expert

(“VE”) Stacy McKisick testified at this hearing. Id.

Subsequently, on June 6, 2020, after this second administrative hearing, the ALJ entered a

second unfavorable decision. (Tr. 1964-2039). This opinion is detailed and fifty-nine (59) pages

in length. Id. In this opinion, the ALJ found Plaintiff met the insured status requirements of the

Act through September 30, 2018. (Tr. 1970, Finding 1). The ALJ found Plaintiff had not engaged

in Substantial Gainful Activity (“SGA”) since September 3, 2014, her alleged onset date. (Tr.

1970, Finding 2).

The ALJ determined, through her date last insured, Plaintiff had the following severe

impairments: fibromyalgia, degenerative disc disease of her cervical spine, degenerative disc

disease of her lumbar spine, degenerative joint disease of her knees, type II diabetes mellitus, status

post recurrent right inguinal hernia repair with mesh, obesity, major depressive disorder, bipolar

disorder, unspecified personality disorder, unspecified anxiety disorder, and posttraumatic stress

disorder. (Tr. 1970, Finding 3). The ALJ also determined Plaintiff did not have an impairment or

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a combination of impairments that met or medically equaled the requirements of any of the Listings

of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 1973-1975).

The ALJ determined Plaintiff was born on February 2, 1969, and she was forty-five (45)

years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c), on her disability

alleged onset date. (Tr. 2023, Finding 7). The ALJ determined Plaintiff had at lest a high school

education and was able to communicate in English. (Tr. 2024, Finding 8).

In this decision, the ALJ evaluated Plaintiff’s subjective allegations and determined her

Residual Functional Capacity (“RFC”). (Tr. 1975-2023, Finding 5). First, the ALJ evaluated

Plaintiff’s subjective allegations and found they were not entirely valid. Id. Second, the ALJ

determined Plaintiff had the following RFC:

After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform light work as defined in 20

CFR 404.1567(b) and 416.967(b). In addition, the claimant could climb ramps and

stairs occasionally, never climb ladders, ropes, or scaffolds, and she could balance,

stoop, kneel, crouch, and crawl occasionally. The claimant should avoid

concentrated exposure to extreme cold or excessive vibration. Finally, she could

make simple work related decisions; maintain concentration, persistence and pace

for simple tasks; understand, carry out and remember simple work instructions and

procedures; adapt to changes in the work setting which were simple, predictable

and could be easily explained; and have occasional and superficial interaction with

co-workers, supervisors, and the public.

Id.

The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was

unable to perform any of her PRW. (Tr. 2023, Finding 6). The ALJ then considered whether

Plaintiff retained the capacity to perform other work existing in significant numbers in the national

economy. (Tr. 2024-2025, Finding 10). In making this determination, the ALJ relied upon the

testimony of the VE. Id. Based upon the VE’s testimony, the ALJ determined Plaintiff retained

the capacity to perform work as a housekeeping cleaner (light, unskilled) with approximately

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110,000 such jobs in the national economy; and printed circuit board beveler (light, unskilled) with

approximately 60,000 such jobs in the national economy. Id. Because Plaintiff retained the

capacity to perform this other work, the ALJ determined Plaintiff had not been under a disability—

as defined by the Act—from September 3, 2014 (alleged onset date) through July 6, 2020 (ALJ’s

decision date). (Tr. 2025, Finding 11).

Plaintiff sought review with the Appeals Council. (Tr. 1957-1963). This request was

denied. Id. On July 6, 2021, Plaintiff filed a Complaint in this case. ECF No. 1. Both Parties

have filed appeal briefs. ECF Nos. 13-14. This matter is now ripe for consideration.

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

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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 sub-

stantial evidence in the record. ECF No. 13. In making this claim, Plaintiff raises four arguments

for reversal: (A) the ALJ erred in assessing her subjective allegations; (B) the ALJ erred by failing

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to fully and fairly develop the record; (C) the ALJ erred at Step Two of the Analysis; and (D) the

ALJ erred in his RFC determination. Id. The Court will consider each of these arguments.

A. Subjective Allegations

Plaintiff claims the ALJ erred in evaluating her subjective allegations of disability. ECF

No. 13 at 9-11. Plaintiff claims this Court entered a prior remand order directing the SSA to fully

consider her complaints, and the SSA did not comply with that directive. Id. 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 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

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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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 his evaluation of Plaintiff’s

subjective allegations. (Tr. 1975-2023). Indeed, the ALJ used a large amount of his fifty-nine-

page opinion outlining her subjective allegations and noting inconsistencies between those

allegations and the record. Id. For instance, the ALJ noted the following regarding her daily

activities:

Medical records showed that in March 2014 she was the choir director at her church

(Ex. 54F, 57F, 58F). In talking with Dr. Parsons in February 2019, the claimant

indicated that she was able to drive, although she had no vehicle. The claimant also

denied needing any assistance with activities of daily living, shopping, or paying

bills (Ex. 63F). In March 2019, she reported that she rearranged and repurposed

furniture at times (Ex. 83F, 88F). In October 2019, she reported that she had helped

move some furniture (Ex. 82F).

(Tr. 2001-2002). The ALJ also considered her work history. (Tr. 2003). The ALJ noted that

although Plaintiff had a “fair work history,” the ALJ also found that “the significance of the

claimant’s work history is outweighed by other substantial evidence in this claim.” 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. (Tr. 1975-

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2023). 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”).

B. Development of the Record

Plaintiff claims the ALJ erred by failing to fully and fairly develop the record in this case.

ECF No. 13 at 11-17. Plaintiff claims that because this case has been on-going for so long (since

2014), the ALJ should have ordered additional development:

In between remand and the second hearing and adjudication, the relevant time

period (RTP) had expanded from 2014 to 2020. Plaintiff’s medical condition had

markedly deteriorated with the addition of new diagnoses and medically

determinable impairments.

Id. at 12.

Upon review of Plaintiff’s case and the transcript in this matter, however, the ALJ obtained

records from several sources, treating and non-treating alike. This transcript also includes records

that are as recent as March and April of 2020. (Tr. 2004). Indeed, the transcript in this case is

over 4,000 pages.

While Plaintiff is correct the ALJ had the duty to fully and fairly develop the record in this

case, that duty is not without limits. See, e.g., Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir.

2004) (recognizing the ALJ’s duty develop the record in a social security disability case). Indeed,

the record need only be a “reasonably complete record.” See Clark v. Shalala, 28 F.3d 828, 830-

31 (8th Cir. 1994). Here, upon review of the transcript in matter, the Court finds this record is

“reasonably complete.” Furthermore, to be entitled to a remand for the ALJ’s failure to develop

the record, Plaintiff must demonstrate prejudice. Here, Plaintiff has not made this demonstration;

thus, she is not entitled to a remand. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993)

(holding “absent prejudice or unfairness, we will not remand.”).

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C. Step Two of the Analysis

Plaintiff claims the ALJ erred by finding her IBS and anemia were non-severe impairments.

ECF No. 13 at 17. In his decision, the ALJ found Plaintiff suffered from the following severe

impairments: “fibromyalgia, degenerative disc disease of her cervical spine, degenerative disc

disease of her lumbar spine, degenerative joint disease of her knees, type II diabetes mellitus, status

post recurrent right inguinal hernia repair with mesh, obesity, major depressive disorder, bipolar

disorder, unspecified personality disorder, unspecified anxiety disorder, and posttraumatic stress

disorder.” (Tr. 1970, Finding 3). The ALJ did not find Plaintiff suffered from any other severe

impairments.

To qualify as a “severe impairment,” that impairment must more than minimally impact a

claimant’s ability to work:

An impairment is not severe if it amounts only to a slight abnormality that would

not significantly limit the claimant’s physical or mental ability to do basic work

activities. If the impairment would have no more than a minimal effect on the

claimant’s ability to work, then it does not satisfy the requirement of step two.

See Kirby v. Astrue, 500 F. 3d 705, 707-08 (8th Cir. 2007) (internal citations and quotations marks

omitted).

In the present action, the Court finds the ALJ properly found Plaintiff’s IBS and anemia

were not severe impairments. As for IBS, the ALJ recognized the following:

While the claimant had issues with constipation, irritable bowel syndrome, levator

ani syndrome, and fecal incontinence, it appeared to be intermittent. There was no

indication that the claimant was using any type of incontinence products. The

medical providers indicated that the fecal incontinence, it appeared to be

intermittent. There was no indication that the claimant was using any type of

incontinence products. The medical providers indicated that the fecal incontinence

was a short term side effect related to the Botox injection. It appeared that with

medication changes her symptoms improved.

(Tr. 1971). As for anemia, the ALJ recognized her anemia had been resolved: “A telephone call

from Melinda Galloway, LPN, with CARTI in February 2019 indicated that her labs were fine and

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she was not anemic (Ex. 72F). A capsule endoscopy performed in January 2020 showed iron

deficiency anemia (Ex. 81F, 82F). However, there was no indication that the claimant underwent

any additional iron infusions.” (Tr. 1973). Based upon this review, the Court cannot find a basis

for reversal on this issue and finds the ALJ’s Step Two determination is supported by substantial

evidence in the record.

D. RFC Determination

Plaintiff claims the ALJ erred in assessing her RFC. ECF No. 13 at 17-21. Specifically,

Plaintiff argues the ALJ erred in incorporating her need for a walker or a wheelchair in his RFC

assessment. Id. Plaintiff is correct that on October 18, 2018, Paula Sargent, APRN3 recommended

Plaintiff receive physical therapy and use a walker to assist in her therapy:

Physical therapy order for her and also a Rolator walker order for her to assist in

ambulating, exercise daily walking recommended. She has to take frequent rest

periods during walking exercise and I think a rolator walker may provide her with

the ability to be more active rather than avoiding walking.

(Tr. 3838). The ALJ recognized this finding in his opinion. (Tr. 1995). In August of 2018,

Plaintiff was also “provided with an order for a wheelchair,” and the ALJ recognized this notation

in his opinion as well. (Tr. 1995).

The ALJ also noted in his opinion, however, that these findings were not consistent with

other, more persuasive findings from her other doctors. For example, the ALJ noted the following:

After an examination by Dr. Nair in April 2018, he opined that the claimant was

restricted from physically strenuous activity, but she was ambulatory and was able

to carry out work at a light or sedentary nature (Ex. 55F, 72F). This opinion from

a treating physician appeared to be consistent with the overall record and was given

weight in this matter.

(Tr. 2005). Further, in November of 2019 and March of 2020, her gait was found to be normal.

(Tr. 2013, 4402, 4475).

3 The abbreviation “APRN” stands for “Advanced Practice Registered Nurse.”

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Finally, as Defendant argues, to “show a hand-held assistive device is medically required,

there must be medical documentation establishing the need for a hand-held assistive device to aid

in walking or standing and describing the circumstances for which it is needed (i.e., whether all

the time, periodically, or only in certain situations; distance and terrain; and any other relevant

information). SSR 96-9p. Plaintiff has not pointed to any evidence that would meet these

requirements.” See ECF No. 14 at 13-14. Upon review of Plaintiff’s case and the transcript in this

matter, the Court agrees with this argument and finds Plaintiff has not provided sufficient evidence

to demonstrate her need for an ambulatory device. Thus, the Court cannot find a basis for reversal

on this issue.

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 it 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 1st day of February 2022.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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