# Foster v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · February 1, 2022

URL: https://www.frixlaw.com/law-library/cases/10632239

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** February 1, 2022
- **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/10632239

## How later opinions describe it (automated extraction)

- holding “absent prejudice or unfairness, we will not remand.”
- recognizing an ALJ may discount a “claimant’s subjective complaints . . . if there are inconsistencies in the record as a whole”
- recognizing the ALJ’s duty develop the record in a social security disability case

## Opinion text

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
9
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632239. Public record. Not legal advice.