Hardiman v. Social Security Administration Commissioner, No. 1:2016cv01067 - Document 14 (W.D. Ark. 2017)

Court Description: MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on June 19, 2017. (cnn)
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Hardiman v. Social Security Administration Commissioner Doc. 14 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION BETTY L. HARDIMAN vs. PLAINTIFF Civil No. 1:16-cv-01067 NANCY BERRYHILL Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION Betty Hardiman (“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 her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI 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. 8.1 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 and SSI were filed on April 30, 2013. (Tr. 125, 291-305). Plaintiff alleged she was disabled due to cervical paraspinal muscle spasm, degenerative disease of the left knee, and stress headaches. (Tr. 325). Plaintiff alleged an onset date of April 25, 2013. (Tr. 125, 325). These applications were denied initially and again upon reconsideration. (Tr. 125). 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 Dockets.Justia.com Thereafter, Plaintiff requested an administrative hearing on her applications and this hearing request was granted. (Tr. 237). Plaintiff’s administrative hearing was held on October 23, 2014. (Tr. 139-165). Plaintiff was present and was represented by counsel, Mary Thomason, at this hearing. Id. Plaintiff, her supervisor, Ronald Hickman, and Vocational Expert (“VE”) Mack Smith, testified at the hearing. Id. At the time of this hearing, Plaintiff was fifty-four (54) years old and had obtained a GED. (Tr. 143). On March 25, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s application for DIB and SSI. (Tr. 125-134). In this decision, the ALJ determined Plaintiff met the insured status requirements of the Act through December 31, 2017. (Tr. 127, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 25, 2013. (Tr. 127, Finding 2). The ALJ also determined Plaintiff had the severe impairments of chronic back pain, neck pain, right shoulder pain, bilateral knee pain, asthma, and headaches. (Tr. 127, 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. 128, Finding 4) In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC. (Tr. 129-133). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC to perform light work; could lift or carry up to twenty pounds and ten pounds frequently; could stand or walk for up to six hours in an eight-hour workday with normal breaks; could sit for 2 up to six hours in an eight-hour workday; could stoop, crouch, crawl and kneel only occasionally; must avoid exposure to respiratory irritants, i.e., dust, fumes, strong odors and temperature extremes; could perform work where interpersonal contact was incidental to the work performed (with incidental defined as interpersonal contact requiring a limited degree of interaction, i.e., meeting and greeting the public, answering simple questions, accepting payment and making changes; where the complexity of the tasks could be learned by demonstration or repetition within 30 days); where the tasks required few variables and little judgment; and where the supervision required was simple, direct and concrete. (Tr. 129, Finding 5). The ALJ evaluated Plaintiff's Past Relevant Work ("PRW"). (Tr. 133, Finding 6). The ALJ found Plaintiff was unable to perform her PRW. Id. The ALJ, however, also determined there was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 134, 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 office helper with 1,200 such jobs in the region and 68,000 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 April 25, 2013, through the date of the decision. (Tr. 134, Finding 11). Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 120-121). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-5). On July 13, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on August 8, 2016. ECF No. 8. Both Parties have filed appeal briefs. ECF Nos. 12, 13. This case is now ready for decision. 3 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 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). 4 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: Plaintiff brings the present appeal claiming the ALJ erred: (A) in the weight given the opinions of Plaintiff’s physician, (B) in failing to properly consider Plaintiff’s complaints of pain, (C) in failing to consider all of Plaintiff’s impairments in combination, and (D) in the Step 5 determination. ECF No. 12, Pgs. 10-17. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 13. A. 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] 5 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 (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 Dr. Joseph Deluca in assessing Plaintiff’s RFC. ECF No. 12, Pgs. 10-13. However, Plaintiff’s argument is without merit. Plaintiff argues the ALJ erred in his consideration of the opinions of Dr. Deluca. Specifically, Plaintiff refers to Dr. Deluca’s opinion of October 21, 2014 which stated: Betty Hardiman is a 54-year-old patient of mine with the following medical diagnoses: chronic back pain, chronic right shoulder pain, insomnia, and migraine headaches. Recent MRI revealed cervical spinal stenosis, and degenerative disc disease and osteoarthritis of the cervical spine. Her recent physical exam on 10/20/14 revealed her vital signs to be stable. She had muscle spasm and severe pain on motion of her cervical spine. She had painful range of motion of her right shoulder. The remainder of her physical exam was within normal limits. Ms. Hardiman has difficulty with activities of daily living due to her cervical spinal disease. Due to the severity of her disease, and the fact that she has been refractory to a host of medical interventions, I have advised Ms. Hardiman to pursue disability. (Tr. 519). The ALJ said he gave the opinions of Dr. Deluca “some consideration.” (Tr. 132). In his opinion, he set forth reasons for his treatment of the opinions of Dr. Deluca. These included no 6 evidence of more aggressive treatment, examination was essentially normal, the overall treatment record, and employment after the alleged onset date. Id. The ALJ gave the opinion some consideration by finding Plaintiff was not capable of performing her past relevant work, which was at the heavy level. (Tr. 132). The ALJ’s decision accounted for the objective findings in the record by restricting Plaintiff to light work with postural limitations, but properly noted the overall record did not preclude all work activity. The ALJ properly decided to give little weight to the restrictive limitations found by Dr. Deluca. The ALJ committed no error in his treatment of medical opinions from Plaintiff’s physician. B. ALJ’s Credibility Determination Plaintiff also claims the ALJ erred in his credibility determination. ECF No. 12, Pgs. 13-15. In response, Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective complaints pursuant to the directives of Polaski. ECF No. 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. § 416.929.2 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 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. 7 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 her credibility as it related to the limiting effects of her impairments and did not fully consider her subjective complaints. The Defendant argues the 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. 130-133). 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 8 are not limited to any serious degree, (3) Conservative medical treatment, (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. Combination of Impairments Plaintiff argues the ALJ erred by failing to consider all of her 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. 128, 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. 129, Finding 5). The ALJ went on to state Plaintiff’s RFC would not preclude her from performing other work that exists in significant numbers in the national economy. (Tr. 133, 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 9 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 she 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. D. Step 5 Determination At Step Five of a disability determination, the SSA has the burden of establishing that a claimant retains the ability to perform other work in the economy. See Snead v. Barnhart, 360 F.3d 838, 836 (8th Cir. 2004). The SSA may meet this burden by either applying the Grids or by relying upon the testimony of a VE. See Cox v. Astrue, 495 F.3d 614, 621 (8th Cir. 2004) (finding the SSA’s denial of benefits was supported by substantial evidence where the VE’s testimony was based on a correctly-phrased hypothetical question); Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003) (finding the SSA’s denial of benefits was supported by substantial evidence where the ALJ applied the Grids). The SSA may not apply the Grids, and must hear testimony from a VE, where a claimant’s RFC is significantly diminished by a nonexertional limitation. See McGeorge v. Barnhart, 321 F.3d 766, 768-769 (8th Cir. 2003). If, however, the SSA properly determines a claimant’s RFC is not significantly diminished by a nonexertional limitation, then the SSA may rely exclusively upon the 10 Grids and is not required to hear the testimony from a VE. See McGeorge, 321 F.3d at 768-769. In this matter, the ALJ heard testimony from a VE regarding Plaintiff’s ability to perform work in the national economy. It is generally accepted that VE testimony, in response to a hypothetical question, is substantial evidence if the hypothetical sets forth the credible impairments with reasonable precision. See Starr v. Sullivan, 981 F.2d 1006 (8th Cir. 1992). It has further been established the ALJ must only include in the hypothetical those impairments which the ALJ actually finds credible, and not those which he rejects, assuming his findings are supported by substantial evidence. See Onstad v. Shalala, 999 F.2d 1232 (8th Cir. 1993). The ALJ found Plaintiff had the RFC to perform light work with limitations. (Tr. 129, Finding 5). In response to a hypothetical question containing these limitations, the VE testified work existed in the national economy consistent with the limitations found by the ALJ. (Tr. 158-159). The ALJ found a significant number of jobs existed in the national economy which Plaintiff could perform. (Tr. 134, Finding 10). Relying on the VE testimony, the ALJ found Plaintiff was not under a disability as defined by the Act. (Tr. 134, Finding 11). I find the ALJ's hypothetical question properly set forth those limitations the ALJ found credible and which are supported by the evidence of record. See Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir. 1994); Rappoport v. Sullivan, 942 F.2d 1320, 1322 (8th Cir. 1991) (ALJ need only include in his hypothetical question those impairments he accepts as true). The VE stated jobs existed in both the national and local economy for the vocational profile of the Plaintiff. Such testimony, based on a hypothetical question consistent with the record, provided substantial evidence. 4. Conclusion: Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits 11 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 19th day of June 2017. /s/ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE 12