Jacobs v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

KIMBERLY D. JACOBS PLAINTIFF

vs. Civil No. 2:22-cv-02059

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION DEFENDANT

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Kimberly D. Jacobs (“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

application for Disability Insurance Benefits (“DIB”) under Title II 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 her disability application on January 9, 2018. (Tr. 410-411).1 In her

application, Plaintiff alleges being disabled due to a left leg injury, neuropathy, diabetes mellitus,

bipolar disorder, post-traumatic stress disorder, chronic pain, high blood pressure, and insomnia.

(Tr. 468). Plaintiff alleged an onset date of March 31, 2017, which was later amended to September

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

page number.

4, 2017. (Tr. 50, 410). Plaintiff’s application was denied initially and again upon reconsideration.

(Tr. 217-264, 356-357).

Plaintiff requested an administrative hearing on her denied application, and this hearing

request was granted. (Tr. 301-302). On September 30, 2019, following a hearing, an ALJ entered

a decision and found Plaintiff not disabled. (Tr. 265-284). Following this, on September 25, 2020,

the Appeals Council vacated this decision and remanded the case for further consideration. (Tr.

285-290).

A new hearing was held on January 13, 2021. (Tr. 162-193). At this hearing, Plaintiff was

present, and represented by Laura McKinnon. Id. Plaintiff and Vocational Expert (“VE”), Jim

Spragins testified at the hearing. Id.

Following the administrative hearing, on June 24, 2021, the ALJ entered an unfavorable

decision. (Tr. 50-66). In this decision, the ALJ determined Plaintiff met the insured status of the

Act through December 31, 2021. (Tr. 52, Finding 1). The ALJ also found Plaintiff had not engaged

in substantial gainful activity (“SGA”) since September 4, 2017. (Tr. 53, Finding 2).

The ALJ determined Plaintiff had the severe impairments of depression, anxiety, morbid

obesity, right shoulder osteoarthritis, post-traumatic stress disorder, borderline personality disorder,

fracture of multiple ribs, fracture of left femur, fracture of right ankle, diabetes mellitus type II, and

diabetic neuropathy. (Tr. 53, 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. 53, Finding 4).

The ALJ considered Plaintiff’s subjective complaints and determined her RFC. (Tr. 55-64).

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 sedentary work, except could not climb ladders,

ropes, scaffolds, ramps, and stairs; could occasionally balance, stoop, kneel, crouch, crawl, and

reach overhead on the right; could perform simple, routine, and repetitive tasks with few variable

and little judgment; needed supervision that was simple, direct, and concrete; could tolerate

interpersonal contact that was incidental to the work performed; and must be able to use a cane to

walk. Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 64, Finding 6). The

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

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

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

occupations of (1) cutter/paster with approximately 12,000 jobs in the nation, (2) tube operator with

approximately 3,000 jobs in the nation, and (3) addresser with approximately 2,700 jobs in the

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

September 4, 2017, through the date of the decision. (Tr. 66, Finding 11).

On April 12, 2022, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed

appeal briefs. ECF Nos. 14, 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

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

substantial evidence in the record. ECF No. 14. In making this claim, Plaintiff raises the following

arguments for reversal: (A) the ALJ failed to fully and fairly develop the record, (B) the ALJ erred

at Step 2, (C) the ALJ erred in assessing her subjective allegations, and (D) the ALJ erred in the

RFC determination. Id. The Court will consider each of these arguments.

A. 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. 14, Pgs. 8-12. Defendant argues substantial evidence shows the ALJ met her duty to fully

and fairly develop the record. ECF No. 16.

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 her 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 this 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 she 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 she was prejudiced by any perceived failure to develop the record.

B. Step Two of the Analysis

Plaintiff claims the ALJ erred by finding her intermittent explosive disorder, migraines, and

the etiology of her pain were non-severe impairments. ECF No. 14, Pgs. 12-14. In her decision,

the ALJ found Plaintiff suffered from the following severe impairments: depression, anxiety, morbid

obesity, right shoulder osteoarthritis, PTSD, borderline personality disorder, fracture of multiple

ribs, fracture of left femur, fracture of right ankle, diabetes mellitus type II, and diabetic neuropathy.

(Tr. 53, 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 intermittent

explosive disorder, migraines, and the etiology of her pain were not severe impairments. As for

intermittent explosive disorder and migraines, there was no on-going medical treatment for either

of these alleged impairments. Additionally, at the administrative hearing in this matter, Plaintiff did

not allege being disabled due to intermittent explosive disorder or migraines. (Tr. 120-193). In her

application, Plaintiff did not allege being disabled due to intermittent explosive disorder or

migraines. (Tr. 468). Because Plaintiff did not raise these alleged disabilities at the administrative

hearing or in her application, the ALJ was under no obligation to investigate whether Plaintiff was

disabled due to intermittent explosive disorder or migraines and was under no obligation to find

these impairments were severe. See Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996) (recognizing

an ALJ is under no “obligation to investigate a claim not presented at the time of the application for

benefits and not offered at the hearing as a basis for disability”).

Further, the claim of “the etiology of her pain” is not the proper consideration of what is

considered to be severe impairment nor can it be considered an impairment. The proper

consideration is how a specific impairment limits the ability to do work. In this matter, the ALJ did

find physical impairments such as right shoulder osteoarthritis, fracture of multiple ribs, fracture of

left femur, fracture of right ankle, and diabetic neuropathy as severe.

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.

C. Subjective Allegations

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

No.14, Pgs. 14-16. 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

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.

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.

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 her evaluation of Plaintiff’s

subjective allegations. (Tr. 56-64). Indeed, the ALJ opinion outlined her subjective allegations and

noted inconsistencies between those allegations and the record. Id. The ALJ also noted her 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 she was

receiving treatment and medication for her 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”).

D. RFC Determination

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

sedentary work with limitations. (Tr. 55-56). Plaintiff argues the ALJ erred in this RFC

determination. ECF No. 14, Pgs. 16-20. 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 she has more limitations than those found in the RFC assessment above.

In her opinion, the ALJ considered Plaintiff’s alleged impairments and discounted those she

found were not credible. (Tr. 57-64). The ALJ considered the results of objective diagnostic tests

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

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

RFC. Id.

Substantial evidence supports the ALJ’s RFC determination. Plaintiff has the burden of

establishing her 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 her

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.

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 30th day of March 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE