Udouj v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

LUKE ALEXANDER ODOUJ PLAINTIFF

vs. Civil No. 2:22-cv-02045

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION DEFENDANT

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Luke Alexander Udouj (“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 P. K.

Holmes, III 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 filed his disability applications on October 29, 2019. (Tr. 15).1 In his applications,

Plaintiff alleges being disabled due to a deformed right foot, arthritis in ankle, back pain, vision

impairment, hearing impairment, and developmental disability. (Tr. 270). Plaintiff alleged an onset

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

page number.

date of June 28, 2019. (Tr. 15). Plaintiff’s applications were denied initially and again upon

reconsideration. Id.

Plaintiff requested an administrative hearing on his denied applications, and this hearing

request was granted. (Tr. 170-222). This hearing was held on March 23, 2021. (Tr. 38-72). At

this hearing, Plaintiff was present, and represented by Jeremy Wann. Id. Plaintiff, his mother

Patricia Udouj, and Vocational Expert (“VE”), Rachel Hawkins testified at the hearing. Id.

Following the administrative hearing, on April 27, 2021, the ALJ entered an unfavorable

decision. (Tr. 15-29). In this decision, the ALJ determined Plaintiff met the insured status of the

Act through December 31, 2025. (Tr. 17, Finding 1). The ALJ also found Plaintiff had not engaged

in substantial gainful activity (“SGA”) since June 28, 2019. (Tr. 17, Finding 2).

The ALJ determined Plaintiff had the severe impairments of osteoarthritis, major joint

dysfunction, sleep apnea, somatic disorder, intellectual disorder, and anxiety. (Tr. 18, 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. 18, Finding 4).

The ALJ considered Plaintiff’s subjective complaints and determined his RFC. (Tr. 21-27).

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 a reduced range of sedentary work with additional

limitations of occasionally can climb, balance, crawl, kneel, stoop, and crouch; simple, routine,

repetitive tasks; interpersonal contact that is incidental to the work performed; and simple, direct,

and concrete supervision. Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 28, Finding 6). The

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

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

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

occupations of (1) cutter/paster with approximately 11,900 jobs in the nation, (2) nut sorter with

approximately 2,200 jobs in the nation, and (3) eye glass frame polisher with approximately 2,000

jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff had not been disabled

from June 28, 2019, through the date of the decision. (Tr. 29, Finding 11).

On March 16, 2022, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed

appeal briefs. ECF Nos. 20, 21. 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 his appeal brief, Plaintiff claims the ALJ’s disability decision is not supported by

substantial evidence in the record. ECF No. 20. In making this claim, Plaintiff raises the following

arguments for reversal: (A) the ALJ erred in the RFC determination, (B) the ALJ failed to fully and

fairly develop the record, (C) the ALJ erred in failing to find Plaintiff met a Listing, (D) the ALJ

erred in assessing his subjective allegations, and (E) 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 a reduced range of

sedentary work with limitations. (Tr. 21). Plaintiff argues the ALJ erred in this RFC determination.

ECF No. 20, Pgs. 4-11. 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 he has more limitations than those found in the RFC assessment above.

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

found were not credible. (Tr. 21-27). The ALJ considered the results of objective diagnostic tests

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

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

RFC. Id.

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. Duty to Develop the 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

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 medical record regarding

Plaintiff’s alleged impairments and should have required an additional consultative examination.

ECF No. 20, Pgs. 5-7. Defendant argues substantial evidence shows the ALJ met his duty to fully

and fairly develop the record. ECF No. 21, Pgs. 7-8.

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 his 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,

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.

Accordingly, Plaintiff has failed to demonstrate that the record was not fully developed and

that he was prejudiced by any perceived failure to develop the record.

C. Listing 12.05

The ALJ must determine whether Plaintiff has a severe impairment that significantly limits

the physical or mental ability to perform basic work activities. A medically determinable

impairment or combination of impairments is severe if it significantly limits an individual’s physical

or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1521 and 416.921.

The ALJ found Plaintiff did suffer from impairments considered to be severe within the

meaning of the Social Security regulations. These impairments included osteoarthritis, major joint

dysfunction, sleep apnea, somatic disorder, intellectual disorder, and anxiety. (Tr. 18, Finding 3).

However, there was no substantial evidence in the record showing Plaintiff’s condition was severe

enough to meet or equal that of a listed impairment as set forth in the Listing of Impairments. See

20 C.F.R. pt. 404, subpt. P, app.1. Plaintiff has the burden of establishing that his impairment(s)

meet or equal an impairment set out in the Listing of Impairments. See Sullivan v. Zebley, 493 U.S.

521, 530-31 (1990). Plaintiff has not met this burden.

“To meet a listing, a claimant must show that he or she meets all of the criteria for the listed

impairment.” Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). Plaintiff claims his

impairments meet the requirements of Listing 12.05(B). ECF No. 20, Pgs. 7-9. Listing 12.05(B)

requires a demonstration of the following:

Satisfied by 1, 2, and 3:

1. Significantly subaverage general intellectual functioning evidenced by a or b:

a. A full scale (or comparable) IQ score of 70 or below on an individually

administered standardized test of general intelligence; or

b. A full scale (or comparable) IQ score of 71-75 accompanied by a verbal or

performance IQ score (or comparable part score) of 70 or below on an

individually administered standardized test of general intelligence; and

2. Significant deficits in adaptive functioning currently manifested by extreme

limitation of one, or marked limitation of two, of the following areas of mental

functioning:

a. Understand, remember, or apply information (see 12.00E1); or

b. Interact with others (see 12.00E2); or

c. Concentrate, persist, or maintain pace (see 12.00E3); or

d. Adapt or manage oneself (see 12.00E4); and

3. The evidence about your current intellectual and adaptive functioning and about the

history of your disorder demonstrates or supports the conclusion that the disorder

began prior to your attainment of age 22.

Plaintiff claims his medical records demonstrate he has a “full-scale score of 67,” which

satisfies the criteria 1. ECF No. 20 at 7. However, to meet listing 12.05, Plaintiff must prove he

satisfied all three parts of 12.05(B). See 20 C.F.R. Pt. 404, Subpart P, Appendix 1 § 12.05(B).

Plaintiff has failed to identify any criterion in part 2 or 3, that were satisfied.

Upon review, the Court finds no basis for reversal on this issue. The ALJ discussed at length

his findings in support by discussing Plaintiff’s relevant medical history, functioning, and testimony

and Plaintiff failed to meet his burden.

D. Subjective Allegations

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

20, Pgs. 10-11. 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 subjective allegations

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.

“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. 21-27). Indeed, the ALJ opinion outlined his subjective allegations and

noted inconsistencies between those allegations and the record. Id. The ALJ also noted his 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 he was

receiving treatment and medication for his 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”).

E. Step Five Determination

Plaintiff clams he cannot perform the jobs the VE identified at Step Five of the Analysis.

ECF No. 20, Pgs. 11-12. Plaintiff claims the VE identified jobs he 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 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 27th day of March 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE