Wilson v. Social Security Administration Commissioner

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

STANLEY WILSON PLAINTIFF

vs. Civil No. 2:22-cv-02071

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION DEFENDANT

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Stanley Wilson (“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 28, 2018. (Tr. 10).1 In his applications,

Plaintiff alleges being disabled due to anxiety, depression, and obsessive-compulsive disorder. (Tr. 213).

Plaintiff alleged an onset date of September 23, 2009. (Tr. 10). Plaintiff’s applications were denied

initially and again upon reconsideration. Id.

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.

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

was granted. (Tr. 122-175). This hearing was held on March 17, 2020. (Tr. 27-46). At this hearing,

Plaintiff was present, and represented by Davis Duty. Id. Plaintiff and Vocational Expert (“VE”),

Zachariah Langley testified at the hearing. Id.

Following the administrative hearing, on June 17, 2020, the ALJ entered an unfavorable decision.

(Tr. 10-21). In this decision, the ALJ determined Plaintiff met the insured status of the Act through

December 31, 2013. (Tr. 12, Finding 1). The ALJ also found Plaintiff had not engaged in substantial

gainful activity (“SGA”) since September 23, 2009. (Tr. 12, Finding 2).

The ALJ determined Plaintiff had the severe impairments of anxiety and depression. (Tr. 12,

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. 13, Finding 4).

The ALJ considered Plaintiff’s subjective complaints and determined his RFC. (Tr. 14-20). 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 the full range of exertional work, but limited to simple, routine,

and repetitive tasks; occasional interaction with supervisors, coworkers, and the public; and supervision

that is simple, direct, and concrete. Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 20, Finding 6). The ALJ

determined Plaintiff was capable of performing his PRW as a boilermaker helper. Id. Based upon this

finding, the ALJ determined Plaintiff had not been disabled from September 23, 2009, through the date

of the decision. (Tr. 21, Finding 7).

On April 26, 2022, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal

briefs. ECF Nos. 12, 16. 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

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. 12. In making this claim, Plaintiff raises the following arguments for

reversal: (A) the ALJ erred in the RFC determination, (B) the ALJ erred in assessing his subjective

allegations, and (C) the ALJ erred in evaluating his PRW. Id. The Court will consider each of these

arguments.

A. RFC Determination

In this matter, the ALJ determined Plaintiff retained the RFC to perform the full range of

exertional work, but limited to simple, routine, and repetitive tasks; occasional interaction with

supervisors, coworkers, and the public; and supervision that is simple, direct, and concrete. (Tr. 14).

Plaintiff argues the ALJ erred in this RFC determination. ECF No. 12, Pgs. 11-18. 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’

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. 14-20). 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

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. Subjective Allegations

Plaintiff claims the ALJ erred in evaluating his subjective allegations of disability. ECF No. 12,

Pgs. 16-18. 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 “solely

because the objective medical evidence does not fully support them [the subjective complaints].”

Polaski, 739 F.2d at 1322.

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

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. 14-20). 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”).

C. Step 4 Analysis

An individual is not disabled if they retain the capacity to perform either their past relevant work

as it was actually performed, or as it is generally performed in the national economy. Evans v. Shalala,

21 F.3d 832, 833-834 (8th Cir. 1994) (quoting SSR 82-61 (1982)); see also 20 C.F.R. § 404.1560(b)(2);

Wagner v. Astrue, 499 F.3d 842, 853-54 (8th Cir. 2007). The ALJ must use caution that he considers a

claimant’s specific past relevant work and avoid painting a claimant’s past relevant work with an overly

broad brush, by simply considering a similar definition. Id. Although not required, the ALJ may elicit

testimony from a vocational expert in evaluating a claimant’s capacity to perform past relevant work.

Wagner, 499 F.3d at 853-54 (citing 20 C.F.R. § 404.1560(b)(2)).

perform his PRW. ECF No. 12, Pgs. 18-19. Defendant claims substantial evidence supports the ALJ’s

decision that Plaintiff has the RFC to perform his PRW as a boilermaker helper. ECF No. 16, Pgs. 12-

13. This Court finds the ALJ’s determination that Plaintiff has the RFC to perform his PRW is supported

by substantial evidence and in making that determination, the ALJ provided a sufficient basis for his

determination.

The ALJ found Plaintiff retained the RFC to perform the full range of exertional work, but limited

to simple, routine, and repetitive tasks; occasional interaction with supervisors, coworkers, and the

public; and supervision that is simple, direct, and concrete. (Tr. 14, Finding 5). The ALJ went on to

find Plaintiff’s PRW as a boilermaker helper did not require performance of work-related activities

precluded by the Plaintiff’s RFC. (Tr. 20, Finding 6). As a result, the ALJ determined Plaintiff had not

been under a disability from September 23, 2009, through the date of the decision. (Tr. 21, Finding 7).

Plaintiff argues the ALJ erred in his step four determination.

The burden is on the Plaintiff to demonstrate he is unable to return to his past relevant work.

Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir 2004). While VE testimony at step four is not

necessary to determine if a claimant can perform their past work, the ALJ may consider VE testimony.

Wagner v. Astrue, 499 F.3d 842, 853 (8th Cir. 2007). A VE's response to a properly posed hypothetical

question at step four provides substantial evidence to support the ALJ's finding that an individual can

perform their past work. Depover v. Barnhart, 349 F.3d 563, 568 (8th Cir. 2003).

The ALJ asked the VE about the exertional demands and skill requirements of Plaintiff’s PRW.

(Tr. 43). The ALJ then asked the VE a hypothetical question that reflected Plaintiff’s vocational factors

and RFC to determine whether Plaintiff could perform his PRW. Id. In response to the ALJ’s

hypothetical question, the VE testified Plaintiff could perform his PRW as a boilermaker helper. Id.

Such testimony, based on a hypothetical question consistent with the record, constitutes substantial

evidence. See Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005).

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 29th day of March 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE