Ross v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

MELISSA ANN ROSS PLAINTIFF

vs. Civil No. 2:24-cv-02055

COMMISSIONER, SOCIAL DEFENDANT

SECURITY ADMINISTRATION

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Melissa Ann Ross (“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”) and Supplemental Security Income (“SSI”)

under Title II and XVI of the Act.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Timothy

L. Brooks referred this case to this Court for the purpose of making a report and recommendation.

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

Court recommends Plaintiff’s case be AFFIRMED.

1. Background:

Plaintiff protectively filed her application for DIB and SSI on March 8, 2021. (Tr. 47). In

these applications, Plaintiff alleges being disabled due to rheumatoid arthritis, depression, anxiety,

and “brain zaps” due to medication use. (Tr. 425). Plaintiff alleged an onset date of February 25,

2021. (Tr. 47). These applications were denied initially and again upon reconsideration. Id.

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

request was granted. (Tr. 296-357). This hearing was held on April 18, 2023. (Tr. 174-206). At

this hearing, Plaintiff was present and was presented by counsel, Ruth Carter. Id. Plaintiff and

Vocational Expert (“VE”) Hannah Roberts testified at this hearing. Id.

On June 29, 2023, after the administrative hearing, the ALJ entered a fully unfavorable

decision denying Plaintiff’s application. (Tr. 47-59). The ALJ determined Plaintiff met the

insured status requirements of the Act through March 31, 2026. (Tr. 49, Finding 1). The ALJ also

determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since February 25,

2021. (Tr. 49, Finding 2).

The ALJ then determined Plaintiff had the following severe impairments: psoriatic

arthritis, fibromyalgia, polyneuropathy, degenerative disk disease, anxiety, depression, and

obsessive-compulsive disorder. (Tr. 49, Finding 3). Despite being severe, the ALJ also

determined Plaintiff did not have an impairment or combination of impairments that met or

medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

(Tr. 50, Finding 4).

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

Residual Functional Capacity (“RFC”). (Tr. 52-57, Finding 5). Specifically, the ALJ found

Plaintiff retained the RFC to perform light work except could understand and remember simple

instructions, use judgment to make simple work-related decisions, have occasional interactions

with supervisors, coworkers, and the public, carry out simple instructions, and deal with occasional

changes in a routine work setting. Id.

The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 58, 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. 58,

Finding 10). Based on the testimony of the VE, the ALJ found Plaintiff could perform the

representative occupations of (1) laundry sorter with approximately 175,000 jobs in the nation, (2)

office cleaner with approximately 380,000 jobs in the nation, and (3) office helper with

approximately 190,000 jobs in the nation. Id. Based upon this finding, the ALJ determined

Plaintiff had not been disabled under the Act from February 25, 2021, through the date of the

decision. (Tr. 59, Finding 11).

Plaintiff requested the Appeals Council’s review of the ALJ unfavorable disability

determination. On March 12, 2024, the Appeals Council declined to review the ALJ’s disability

determination. (Tr. 2-8). On May 6, 2024, Plaintiff filed the present appeal. ECF No. 1. Both

parties have filed appeal briefs. ECF Nos. 9, 12. 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 raises the following arguments for reversal: (A) the ALJ failed

to fully and fairly develop the record; (B) the ALJ improperly discounted her credibility; and (C)

the ALJ erred in assessing her RFC. ECF No. 9 at 6-20. The Court will address these issues in

turn.

A. Duty to Develop

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. ECF No. 9, Pgs. 6-9. Defendant argues substantial evidence

shows the ALJ met his duty to fairly develop the record. ECF No. 12, Pgs. 4-7.

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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 his decision.

The medical record of over 500 pages 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.

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B. Credibility Determination

Plaintiff claims the ALJ erred in assessing her subjective complaints. ECF No. 9 at 10-13.

In assessing the credibility 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. § 416.929.1 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to consider

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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

complaints 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

complaints. 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

complaints are not entirely credible, the ALJ’s credibility 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 complaints “solely because the objective medical evidence does not fully

support them [the subjective complaints].” Polaski, 739 F.2d at 1322.

1 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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When discounting a claimant’s complaint of pain, the ALJ must make a specific credibility

determination, 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, this Court finds the ALJ properly addressed and discounted Plaintiff’s

subjective complaints. In his opinion, the ALJ addressed the factors from Polaski and 20 C.F.R.

§ 404.1529 and stated inconsistencies between Plaintiff’s testimony and the record. (Tr. 19-24).

Specifically, the ALJ noted the following: (1) Absence of objective medical findings to support

Plaintiff’s alleged disabling pain, (2) Conservative medical treatment, (3) Plaintiff’s

noncompliance with medical advice, (4) Consideration of Plaintiff’s daily activities, and (5)

Plaintiff’s conditions improved with medical treatment. Id.

These findings are valid reasons supporting the ALJ’s credibility determination, and this

Court finds the ALJ’s credibility determination is supported by substantial evidence and should be

affirmed. See Lowe, 226 F.3d at 971-72. Accordingly, the ALJ did not err in discounting Plaintiff

complaints of pain. Thus, the Court cannot find a basis for reversal on this issue. See Guilliams

v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (recognizing that deference is warranted where the

ALJ’s credibility determination is supported by good reasons and substantial evidence).

C. 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

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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 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).

In this matter, the ALJ determined Plaintiff retained the RFC to perform light work with

limitations. (Tr. 52). Plaintiff argues the ALJ erred in this RFC determination. ECF No. 9, Pgs.

13-20. However, substantial evidence supports the ALJ’s RFC determination.

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

found were not credible. Upon review of the record in this case, the ALJ provided a detailed

analysis of Plaintiff’s medical records and her alleged limitations. (Tr. 53-57). Plaintiff has the

burden of demonstrating her alleged limitations. See, e.g., Young v. Apfel, 221 F.3d 1065, 1069

(8th Cir. 2000). Without more, the Court cannot find the ALJ erred in assessing the RFC. The

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mere fact Plaintiff suffers from a number of different impairments does not demonstrate she is

disabled due to those impairments.

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 28th day of April 2025.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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