Kennel v. Social Security Administration Commissioner

• Court: District Court, W.D. Arkansas
• Decided: February 9, 2018
• Docket: 6:16-cv-06107
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION STANLEY KENNEL PLAINTIFF vs. Civil No. 6:16-cv-06107 NANCY BERRYHILL DEFENDANT Commissioner, Social Security Administration MEMORANDUM OPINION Stanley Kennel (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Act. The parties have consented to the

jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 7.1 Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter. 1. Background: Plaintiff’s application for DIB was filed on July 1, 2014. (Tr. 11). Plaintiff alleged he was disabled due to disc disease, lower back pain, insomnia, anxiety, bulging disc, high blood pressure, torn lumbar, and arthritis. (Tr. 177). Plaintiff alleged an onset date of June 24, 2014. (Tr. 11, 178).

This application was denied initially and again upon reconsideration. (Tr. 11). Thereafter, Plaintiff

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.” 1 requested an administrative hearing on his application and this hearing request was granted. (Tr. 96). Plaintiff’s administrative hearing was held on August 13, 2015. (Tr. 34-63). Plaintiff was present and was represented by counsel, Hilary Chaney, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Kola Brown, testified at the hearing. Id. At the time of this hearing, Plaintiff was forty (40) years old and had a high school education. (Tr. 38, 40).

On October 19, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s application for DIB. (Tr. 11-24). In this decision, the ALJ determined Plaintiff met the insured status requirements of the Act through September 30, 2016. (Tr. 13, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since June 24, 2014. (Tr. 13, Finding 2). The ALJ also determined Plaintiff had the severe impairments of mild to moderate degenerative disc disease at the L3 through S1 levels and obesity. (Tr. 13, Finding 3). The ALJ then determined Plaintiff’s impairments did not meet or medically equal the requirements of any of the

Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 16, Finding 4) In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC. (Tr. 17-23). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found his claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC for light work, except is able to occasionally climb, stoop, crouch, kneel, or crawl. (Tr. 17, Finding 5).

The ALJ evaluated Plaintiff's Past Relevant Work ("PRW"). (Tr. 23, Finding 6). The ALJ found Plaintiff was unable to perform his PRW. Id. The ALJ, however, also determined there was 2 other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 23, Finding 10). The ALJ based this determination upon the testimony of the VE. Id. Specifically, the VE testified that given all Plaintiff's vocational factors, a hypothetical individual would be able to perform the requirements of representative occupations such as storage facility rental clerk with 60,000 such jobs in the nation and merchandise marker with 270,000 such jobs in the nation. Id.

Based upon this finding, the ALJ determined Plaintiff had not been under a disability as defined by the Act from June 24, 2014, through the date of the decision. (Tr. 24, Finding 11). Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 31). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-4). On October 24, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on October 27, 2016. ECF No. 7. Both Parties have filed appeal briefs. ECF Nos. 11, 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) (2006); 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 3 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 4 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: Plaintiff brings the present appeal claiming the ALJ erred: (A) in failing to consider all of Plaintiff’s impairments in combination (B) in failing to properly consider Plaintiff’s complaints of

pain, (C), in the weight given the opinions of Plaintiff’s medial providers, and (D) in the RFC determination. ECF No. 11, Pgs. 3-19. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 12. A. Combination of Impairments Plaintiff argues the ALJ erred by failing to consider all of his impairments in combination. However, under the facts in the present case and after a thorough review of the ALJ’s opinion and the record in this case, this Court finds the ALJ properly considered Plaintiff’s impairments in combination.

The Social Security Act requires the ALJ to consider the combined effect of all of the claimant’s impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. See 20 C.F.R. § 404.1523 (2006). In the present action, in reviewing these claimed impairments, the ALJ stated Plaintiff “does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Tr. 16, Finding 4) (emphasis added). The ALJ also found, “after consideration of the entire record,” the Plaintiff had the RFC to perform light work with some

limitations. (Tr. 17, Finding 5). The ALJ went on to state Plaintiff’s RFC would not preclude him from performing other work that exists in significant numbers in the national economy. (Tr. 23, 5 Finding 10). These statements are sufficient under Eighth Circuit precedent to establish that the ALJ properly considered the combined effect of a claimant’s impairments. See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994) (holding that statements such as “the evidence as a whole does not show that the claimant’s symptoms . . . preclude his past work as a janitor” and “[t]he claimant’s impairments

do not prevent him from performing janitorial work . . .” sufficiently establish that the ALJ properly considered the combined effects of the plaintiff’s impairments). Thus, pursuant to the Eighth Circuit’s holding in Hajek, this Court finds the ALJ properly considered Plaintiff’s impairments in combination. Plaintiff has alleged he suffers from a number of impairments. However, this Court is not required to find a claimant is disabled simply because he or she has alleged a long list of medical problems. The ALJ’s opinion sufficiently indicates the ALJ properly considered the combined effect of Plaintiff’s impairments, and the ALJ properly considered the severity of the combination of Plaintiff’s impairments. See Hajek, 30 F.3d at 92.

B. ALJ’s Credibility Determination Plaintiff also claims the ALJ erred in his credibility determination. ECF No. 11, Pgs. 11-12. In response, Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective complaints pursuant to the directives of Polaski. ECF No. 12. 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. § 416.929.2 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to consider

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, 6 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 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. 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). Plaintiff argues the ALJ erred in assessing his credibility as it related to the limiting effects

of his impairments and did not fully consider his subjective complaints. The Defendant argues the

983 (2007). Thus, this Court will not require the analysis of these additional factors in this case. 7 ALJ properly evaluated Plaintiff’s subjective complaints of pain in compliance with Polaski. 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, 20 C.F.R. § 404.1529, and 20 C.F.R. § 416.929, and stated inconsistencies between Plaintiff’s testimony and the record. (Tr. 17-21). Specifically, the ALJ noted the following: (1) Absence of objective medical

findings to support Plaintiff’s alleged disabling pain, (2) Plaintiff’s described activities of daily living are not limited to any serious degree, (3) Conservative medical treatment which was successful controlling symptoms, (4) Medications were effective in treatment, and (5) Employment following onset date. 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.

C. ALJ’s Treatment of Treating Physician Opinions Social Security Regulations and case law state that a treating physician's opinion will be granted “controlling weight,” provided it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” See SSR 96-2p; Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000)(citing 20 C.F.R. § 404.1527(d)(2)). An ALJ is required to give good reasons for the particular weight given to a treating physician’s evaluation. See Prosch, 201 F.3d at1013 (citing 20 C.F.R § 404.1527(d)(2), and

SSR 96-2p). An ALJ may disregard the opinion of a treating physician only where other medical assessments “are supported by better or more thorough medical evidence,” or where a treating physician renders inconsistent opinions that undermine the credibility of such opinions. Id. at 1013 8 (quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), and Cruze v. Chater, 85 F.3d 1320, 1324-25 (8th Cir. 1996)). Plaintiff argues the ALJ improperly discredited the objective findings of physical therapist Robert Moore and nurse practitioner Beverly Bejarano. ECF No. 11, Pgs. 12-17. However, Plaintiff’s argument is without merit.

To begin with, as the ALJ indicated, neither Mr. Moore nor Ms. Bejarano are considered acceptable medical sources who can provide medical opinions. And even so, the ALJ considered their opinions and gave some weight to the opinions of Mr. Moore. The ALJ found that the opinions of Ms. Bejarano were entitled to little or no weight. In the case of Mr. Moore, the ALJ found his opinions were conclusory and not entirely consistent with the medical evidence of record, and did not cite to any specific objective findings to justify a complete prohibition of activities. (Tr. 21). In considering the opinions of Ms. Bejarano, the ALJ indicated that although she stated Plaintiff was disabled, it was not clear she was familiar

with the definition of disability, and furthermore, the opinion on whether an individual is disabled goes to an issue reserved to the Commissioner. Id. Furthermore, the ALJ found Ms. Bejarano's opinion was inconsistent with the medical evidence of record and lacked objective findings in the way of support. Id. The ALJ also noted Plaintiff had received generally conservative treatment for his back condition. The ALJ gave proper weight to the restrictive limitations found by Mr. Moore and Ms. Bejarano. The ALJ committed no error in his treatment of these opinions.

D. RFC 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 9 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 for light work, except is able occasionally climb, stoop, crouch, kneel, or crawl. (Tr. 17, Finding 5). Plaintiff argues the ALJ erred in this RFC determination. ECF No. 11, Pgs. 17-19. 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. Other than claiming the ALJ failed to address medication side effects, Plaintiff has not referenced any specific limitations the ALJ improperly assessed or provided any medical evidence or other evidence demonstrating the ALJ erred in assessing his limitations. However, the ALJ specifically noted Plaintiff testified about side effects with his medications. (Tr. 19). The ALJ also considered the agreeable side effects when Plaintiff described his medication being 10 effective in controlling his symptoms of low back pain. (Tr. 20). Plaintiffhas the burden of demonstrating his 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 his RFC. The mere fact Plaintiff suffers from a number of different impairments does not demonstrate he is disabled due to those impairments. 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. 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 should be affirmed. A judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58. ENTERED this 9th day of February 2018.

/s/__ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE