Dupree v. Social Security Administration Commissioner, No. 6:2013cv06085 - Document 14 (W.D. Ark. 2014)

Court Description: MEMORANDUM OPINION Signed by Honorable Barry A. Bryant on July 31, 2014. (sh)
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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION PAUL RAY DUPREE vs. PLAINTIFF Civil No. 6:13-cv-06085 CAROLYN COLVIN Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION Paul Ray Dupree ( 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 applications for Disability Insurance Benefits ( DIB ), Supplemental Security Income ( SSI ), and a period of disability 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 filed applications for disability benefits on September 3, 2010. (Tr. 10,110,117). Plaintiff alleged he was disabled due to mental problems, bulging disc, back problems, high blood pressure, depression, vision problems in right eye, and blood in stool. (Tr. 156). Plaintiff alleged 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 an onset date of January 1, 2010. (Tr. 10). These applications were denied initially and again on reconsideration. (Tr. 45-58). Thereafter, Plaintiff requested an administrative hearing on his applications and this hearing request was granted. (Tr. 66-67). Plaintiff s administrative hearing was held on March 19, 2012. (Tr. 22-44). Plaintiff was present and was represented by counsel, Hans Pullen, at this hearing. Id. Plaintiff and Vocational Expert ( VE ) Mack Welch testified at this hearing. Id. At the time of this hearing, Plaintiff was fifty-four (54) years old, and had an eleventh grade education. (Tr. 24-25). On July 12, 2012, the ALJ entered an unfavorable decision denying Plaintiff s applications for DIB and SSI. (Tr. 10-17). In this decision, the ALJ determined Plaintiff met the insured status of the Act through June 30, 2012. (Tr. 12, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity ( SGA ) since January 1, 2010, his alleged onset date. (Tr. 12, Finding 2). The ALJ determined Plaintiff had the severe impairments of back pain and depression. (Tr. 12, Finding 3). The ALJ also determined, however, that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled one of the listed impairments in the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 and No. 16 ( Listings ). (Tr. 12, Finding 4). In this decision, the ALJ evaluated Plaintiff s subjective complaints and determined his RFC. (Tr. 13-15, Finding 5). The ALJ indicated he evaluated Plaintiff s subjective complaints and found his claimed limitations were not fully credible. (Tr. 15). The ALJ also determined, based upon his review of Plaintiff s subjective complaints, the hearing testimony, and the evidence in the record, that Plaintiff retained the RFC for light work except can occasionally climb, balance, stoop, bend, 2 crouch, kneel or crawl; no more than incidental interpersonal conduct; tasks are learned by rote with few variables and little judgment; supervision must be simple, direct and concrete. (Tr. 13, Finding 5). The ALJ evaluated Plaintiff s Past Relevant Work ( PRW ). (Tr. 15). The ALJ found Plaintiff had no PRW. (Tr. 15, Finding 6). The ALJ, however, also determined there was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 16, Finding 10). 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 a poultry picker with approximately 10,000 such jobs in Arkansas and 160,000 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 January 1, 2010 through the date of the decision. (Tr. 16, Finding 11). Thereafter, Plaintiff requested the Appeals Council review the ALJ s unfavorable decision. (Tr. 5-6). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-3). On July 29, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on August 16, 2013. ECF No. 8. Both Parties have filed appeal briefs. ECF Nos. 12, 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) (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 3 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 4 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 claims the ALJ s disability determination is not supported by substantial evidence in the record. ECF No. 12. Specifically, Plaintiff claims the following: (1) the ALJ failed to consider his impairments in combination, (2) the ALJ erred in his RFC determination, and (3) the ALJ erred in his credibility determination. ECF No. 12 at 8-17. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 13. 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 5 of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 12, Finding 4) (emphasis added). The ALJ also found, after consideration of the entire record, the Plaintiff had the RFC to perform light work with limitations. (Tr. 13, 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. 16, 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. 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 6 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 the light work with limitations. (Tr. 13, Finding 5). Plaintiff argues the ALJ erred in this RFC determination when he found Plaintiff could perform light work as a poultry hanger. ECF No. 12, Pgs. 12-14. However, substantial evidence supports the ALJ s RFC determination. To begin with, Plaintiff s argument that the ALJ erred by finding Plaintiff capable of performing the full range of light work (ECF No. 12, Pg. 11) is without merit. The ALJ found Plaintiff capable of a limited range of light work with limitations of only occasionally climb, balance, stoop, bend, crouch, kneel or crawl; no more than incidental interpersonal conduct; tasks are learned by rote with few variables and little judgment; supervision must be simple, direct and concrete. (Tr. 13, Finding 5). 7 Additionally, Plaintiff argues the ALJ erred by in the RFC determination when he found Plaintiff could perform light work as a poultry hanger. ECF No. 12, Pgs. 12-14. However, the ALJ did not find Plaintiff capable of performing the occupation of poultry hanger which is D.O.T code # 525.687.078, rather the ALJ found Plaintiff of performing the requirements of a poultry picker D.O.T. code # 525.687.070. (Tr. 16). The functional limitations the ALJ specified in his RFC and hypothetical question and the occupation the VE identified, (poultry picker), are not in conflict. Substantial evidence supports the ALJ s RFC determination finding Plaintiff capable of performing a limited ranger of light work. 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. C. ALJ s Credibility Determination Plaintiff also claims the ALJ erred in his credibility determination. ECF No. 12, Pages 14-17. In response, Defendant argues the ALJ properly evaluated and discredited Plaintiff s subjective complaints pursuant to the directives of Polaski. ECF No. 13, Pages 9-12. 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, 983 (2007). Thus, this Court will not require the analysis of these additional factors in this case. 8 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 as required by Polaski. The Defendant argues the ALJ properly evaluated Plaintiff s subjective complaints of pain in compliance with Polaski. 9 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. § 416.929, and stated inconsistencies between Plaintiff s testimony and the record. (Tr. 14-15). 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) No physician has placed a level of limitation on Plaintiff s activities comparable to those described by Plaintiff, (4) Has not required regular treatment for any impairment, and (5) No reported side effects from medication. 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 s subjective complaints of pain. 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 31st day of July 2014. /s/ Barry A. Bryant HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE 10