Neighbors v. Social Security Administration Commissioner

• Court: District Court, W.D. Arkansas
• Decided: January 22, 2020
• Docket: 6:18-cv-06133
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION KEVIN NEIGHBORS PLAINTIFF vs. Civil No. 6:18-cv-06133 ANDREW SAUL DEFENDANT Commissioner, Social Security Administration REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Kevin Neighbors, (“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 Susan O. Hickey referred this case to this Court for the purpose of making a report and recommendation.1 The Court, having reviewed the entire transcript and relevant briefing, recommends the ALJ’s determination be AFFIRMED. 1. Background: Plaintiff protectively filed his DIB and SSI application on June 14, 2016. (Tr. 12). In these applications, Plaintiff alleges being disabled due to hemorrhage of left cerebrum, ADHD, fractured

left pubis, laceration of liver, pneumothorax, fractured lumbar vertebra, fractured patella, fractured

1 References to the Transcript will be (Tr. ___) and refer to the document filed at ECF No. 9. These references are to the page number of the transcript itself not the ECF page number. 1 sacrum, lung contusion, fractured left radius and ulna, asthma, traumatic brain injury, and fractured femur (Tr. 268). Plaintiff alleges an onset date of June 2, 2016. (Tr. 12). These applications were denied initially and again upon reconsideration. Id. Plaintiff requested an administrative hearing on February 2, 2017. (Tr. 165-166). Plaintiff’s administrative hearing was held on November 7, 2017. (Tr. 42-72). At this hearing, Plaintiff was

present and was represented by Don Chaney. Id. Plaintiff and Vocational Expert (“VE”) Myrtle Johnson testified at this hearing. Id. At this hearing, Plaintiff was twenty-seven (27) years old and had a high school education. (Tr. 47). On June 14, 2018, the ALJ entered an unfavorable decision denying Plaintiff’s applications. (Tr. 12-28). In this decision, the ALJ determined the Plaintiff met the insured status requirements of the “Act” through December 31, 2020. (Tr. 15, Finding 1). The ALJ also found Plaintiff had not engaged in substantial gainful activity for a continuous 12-month period. (Tr. 15, Finding 3). The ALJ found Plaintiff had severe impairments of: traumatic brain injury, multiple fracture

of bones secondary to a motor vehicle collision, depression, anxiety, post-traumatic stress disorder (PTSD), and borderline intellectual function. (Tr. 15, Finding 4). Despite being severe, the ALJ determined those impairments did not meet or medically equal the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 15, Finding 5). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC. (Tr. 20-26, Finding 6). First, the ALJ evaluated Plaintiff’s subjective complaints and found his

claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC to perform sedentary work except can only occasionally climb ramps and stairs; can never

2 climb ladders, ropes, and scaffolds; can never kneel or crawl, but can occasionally balance, stoop, and crouch; should not work around unprotected heights or moving mechanical parts; should not work around loud noises, such as sounds you would hear in traffic or a jackhammer; can perform simple, routine, and repetitive tasks; can make simple work related decisions; interpersonal contact should be incidental to work performed, supervision should be simple, direct, and concrete; and is

able to stand, when necessary, at a workstation. Id.

The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 27, Finding 7). The ALJ found Plaintiff was not capable of performing his PRW. Id. The ALJ, however, also determined there was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 27, Finding 11). The ALJ based his 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 a representative occupation such as final assembler of optical goods with approximately 235,000 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 2, 2016 through the date of the decision. (Tr. 28, Finding 12). Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s decision. (Tr. 217- 220). The Appeals Council denied this request for review. (Tr. 1-6). On December 26, 2018, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 11, 13. 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)

3 (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

4 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 argues the ALJ erred (1) by failing to fully and fairly develop the record, (2) in assessing Plaintiff’s subject complaints, and (3) in the RFC determination. ECF No. 11, Pgs. 6-18. In response, the Defendant argues the ALJ did not err in any of her findings. ECF

No. 13. A. Duty to Develop 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

5 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 record regarding Plaintiff’s

alleged impairments. ECF No. 11, Pgs. 6-10. Defendant argues substantial evidence shows the ALJ met the duty to fairly develop the record. 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 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, 6 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. Therefore, I find the ALJ satisfied her duty to fully and fairly develop the record in this matter.

B. Subjective Complaints Plaintiff claims the ALJ erred in considering his subjective complaints. ECF No. 11, Pgs. 7-11. 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 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

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. 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). In the present action, this Court finds the ALJ properly addressed and discounted Plaintiff’s subjective complaints. In her 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. 63-66). Specifically, the ALJ noted the following: (1) Absence of objective medical findings to support Plaintiff’s allegations, (2) Poor compliance with medical treatment, (3) Work

history, (4) Plaintiff’s described activities of daily living allow for active lifestyle, and (5) Conservative 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).

8 C. 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 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 sedentary work, subject to several additional limitations. ECF No. 9, Pgs. 20-26. Further, substantial evidence supports the ALJ’s RFC determination.

In her opinion, the ALJ considered Plaintiff’s alleged impairments and discounted those she found were not credible. Plaintiff has not referenced any specific limitations the ALJ improperly assessed or provided any medical evidence or other evidence demonstrating the ALJ erred in 9 assessing his limitations. Plaintiffhas 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 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 recommends that it bb 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 y. Nix, 897 F.2d 356, 357 (8th Cir. 1990). ENTERED this 22nd day of January 2020. wy Barry A Bryant HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE