Stanley v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION PATTI LYNN STANLEY PLAINTIFF vs. Civil No. 3:20-cv-03079 COMMISSIONER, SOCIAL SECURITY ADMINISTRATION DEFENDANT REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Patti Lynn Stanley (“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 a period of disability under Title II 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 arguments in this case, this Court recommends Plaintiff’s case be AFFIRMED. 1. Background: Plaintiff originally filed her disability application on March 7, 2018. (Tr. 16).1 In her application, Plaintiff alleges being disabled due to spina bifida occulta, fibromyalgia, mild depression, mild anxiety, asthma, sciatica, and carpal tunnel syndrome. (Tr. 307). 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.” and refer to the document filed at ECF No. 13. These references are to the page number of the transcript itself not the ECF page number. — 1 — an onset date of February 14, 2018. (Tr. 16). Plaintiff’s application was denied initially and again upon reconsideration. Id. Plaintiff requested an administrative hearing on her denied application, and this hearing request was granted. (Tr. 217-262). This hearing was held on November 6, 2019. (Tr. 142-168). At this hearing, Plaintiff was present, and represented by Kenneth Kieklak. Id. Plaintiff and Vocational Expert (“VE”), Barbara Hubbard testified at the hearing. Id. Following the administrative hearing, on December 13, 2019, the ALJ entered an unfavorable decision. (Tr. 16-30). In this decision, the ALJ found Plaintiff met the insured status of the Act through December 31, 2023. (Tr. 18, Finding 1). The ALJ also found Plaintiff had not engaged in substantial gainful activity (“SGA”) since February 14, 2018. (Tr. 18, Finding 2). The ALJ then determined Plaintiff had the severe impairments of chronic obstructive pulmonary disease (COPD) and a back disorder. (Tr. 18 Finding 3). Despite being severe, the ALJ determined those impairments did not meet or medically equal the requirements of any of the Listings of Impairments in 20 CFR Part 404, Subpart P, Appendix 1 (“Listings”). (Tr. 21, Finding 4). The ALJ considered Plaintiff’s subjective complaints and determined her RFC. (Tr. 21-29). The ALJ evaluated Plaintiff’s subjective complaints and found her claimed limitations were not entirely consistent with the medical evidence and other evidence in the record. Id. The ALJ also determined Plaintiff retained the RFC to perform light work, except she was able to occasionally reach overhead with both arms; occasionally climb, balance, crouch, kneel, stoop, and crawl; and must avoid concentrated exposure to dusts, odors, and gases. Id. The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 29, Finding 6). The ALJ determined Plaintiff was capable of performing her PRW as an Insurance Agent, Retail Sales — 2 — Assistant Manager, and as a Credit and Collection Manager. Id. Based upon this finding, the ALJ determined Plaintiff had not been disabled from February 14, 2018 through the date of the decision. (Tr. 29, Finding 7). On December 16, 2020, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 15, 16. 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, — 3 — 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 claims the ALJ’s disability decision is not supported by substantial evidence in the record. ECF No. 15. In making this claim, Plaintiff raises four arguments for reversal: (A) the ALJ erred in assessing her subjective allegations; (B) the ALJ erred in the RFC determination; (C) new and pre-existing evidence did not support the Appeals Council decision; and (D) the Appeals Council erred in finding her 6th Amendment rights were violated. Id. The Court will consider each of these arguments. — 4 — a. Subjective Allegations Plaintiff claims the ALJ erred in evaluating her subjective allegations of disability. ECF No. 15. In assessing the subjective allegations 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 allegations 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 allegations. 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 allegations are not entirely valid, the ALJ’s 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 allegations “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 allegations of pain, the ALJ must make a specific evaluation of a claimant’s subjective allegations, articulating the reasons for discrediting the testimony, 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. — 5 — 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, the ALJ fully complied with Polaski in his evaluation of Plaintiff’s subjective allegations. (Tr. 27-29). Indeed, the ALJ opinion outlined her subjective allegations and noted inconsistencies between those allegations and the record. Id. The ALJ also noted her daily activities and set forth reasons for finding them not as limiting as described by Plaintiff. Id. Furthermore, the ALJ carefully summarized Plaintiff’s medical records and noted how she was receiving treatment and medication for her impairments that appeared to be effective. Id. Based upon the Court’s review, there is no basis for reversal on this issue. See, e.g., Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (recognizing an ALJ may discount a “claimant’s subjective complaints . . . if there are inconsistencies in the record as a whole”). b. 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 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)). — 6 — 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. 21). Plaintiff argues the ALJ erred in this RFC determination. ECF No. 15, Pgs. 1-2. 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. (Tr. 21-29). The ALJ considered the results of objective diagnostic tests and examination findings and discussed these in his decision. Id. The ALJ also considered prior administrative findings of medical consultants. The ALJ considered Plaintiff’s testimony and function reports in assessing her RFC. Id. 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 her limitations. 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 her RFC. The mere fact Plaintiff suffers from a number of different impairments does not demonstrate she is disabled due to those impairments. — 7 — Also, contrary to Plaintiff’s argument, the ALJ did consider her impairments in combination. In reviewing her 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. 21, Finding 4) (emphasis added). The ALJ also found, “after consideration of the entire record,” the Plaintiff had the RFC to perform medium work with some limitations. (Tr. 21, Finding 5). The ALJ went on to state Plaintiff’s RFC would not preclude her from performing her past relevant work. (Tr. 29, Finding 6). 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). 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. c. Review of evidence by Appeals Council Plaintiff argues error based on the treatment of additional evidence by the Appeals Council. ECF No. 15, Pg. 2. The additional evidence Plaintiff submitted to the Appeals Council related to laboratory findings from December 19, 2017, to December 5, 2019. (Tr. 2). The Appeals Council — 8 — declined to review the additional evidence and did not admit any additional evidence into the administrative record. Id. The Appeals Council’s denial of Plaintiff’s request for review on the basis of additional evidence is not subject to judicial review under 42 U.S.C. § 405 (g), as it is not the agency’s final decision. Based on the Appeals Council’s denial, the ALJ’s decision is the Commissioner’s final decision and is the basis of this Court’s jurisdiction. Furthermore, Plaintiff’s additional evidence would not change the result of the ALJ’s decision because Plaintiff failed to show a reasonable probability that it would change the outcome of her case. d. Administrative Hearing Conducted by Video Plaintiff’s final argument deals with the manner in which the administrative hearing was held. ECF No. 15, Pg. 3. Plaintiff argues the ALJ conducted the hearing via video conferencing and she was unable to see or “directly speak” to the vocational expert. Id. Pursuant to 20 C.F.R. § 404.936 (c), the ALJ has the authority to schedule a hearing via video teleconference or in person. 20 C.F.R. § 404.936 (c). If an objection to a video hearing is made within 30 days of receiving notice, the ALJ will reset the hearing to be in person. 20 C.F.R. § 404.936 (d). In this matter, the ALJ sent a hearing notice on June 20, 2019, and indicated the hearing would be by video. (Tr. 234-239). Plaintiff never objected to appearing via video prior to her hearing. Plaintiff also suggests a violation of her 6th amendment rights based on the manner in which the hearing was conducted. The protections of the Sixth Amendment extend only to criminal prosecutions, and do not apply in civil administrative proceedings. United States v. Zucker, 161 U.S. 475, 481 (1896). — 9 — 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 15th day of February 2022. Barry A. Bryant /s/ HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE — 10 —