BARRY A. BRYANT, Magistrate Judge.
Hawes Heard IV ("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") 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. 9.
Plaintiff's application for DIB and SSI was filed on September 3, 2013. (Tr. 9, 180-189). Plaintiff alleged he was disabled due to problems with his right hip and shoulder. (Tr. 222). Plaintiff alleged an onset date of September 18, 2012. (Tr. 9). These applications were denied initially and again upon reconsideration. (Tr. 9). Thereafter, Plaintiff requested an administrative hearing on his applications and this hearing request was granted. (Tr. 138).
Plaintiff's administrative hearing was held on November 19, 2014. (Tr. 33-71). Plaintiff was present and was represented by counsel, Shannon Muse Carroll, at this hearing. Id. Plaintiff and Vocational Expert ("VE") Dianne Smith testified at this hearing. Id. At the time of this hearing, Plaintiff was fifty-four (54) years old and had a GED. (Tr. 37).
On January 15, 2015, the ALJ entered an unfavorable decision denying Plaintiff's application for DIB and SSI. (Tr. 9-28). In this decision, the ALJ determined the Plaintiff last met the insured status requirements of the Act on March 31, 2016. (Tr. 11, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity ("SGA") since September 18, 2012, his alleged onset date. (Tr. 11, Finding 2).
The ALJ determined Plaintiff had the severe impairments of osteoarthritis of the right hip, history of right shoulder impingement, migraine headache, post-traumatic stress disorder (PTSD), and depression. (Tr. 11, 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. 12, Finding 4).
In this decision, the ALJ evaluated Plaintiff's subjective complaints and determined his RFC. (Tr. 13-26). 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 to perform a modified range of sedentary work with the ability to occasionally lift and carry or push and pull ten pounds; sit for at least six hours in an eight-hour work day; stand or walk two hours in an eight-hour work day; should avoid overhead reaching and lifting with the right dominant upper extremity; can perform frequent fingering or handling with the left (non-dominant) upper extremity; would require the use of a cane in ambulating to and from the work, and retains the ability to understand, remember, carry out detailed instructions, and respond to changes in the workplace. (Tr. 13-14, Finding 5).
The ALJ evaluated Plaintiff's Past Relevant Work ("PRW"). (Tr. 26, Finding 6). The ALJ found Plaintiff was unable to perform 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 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 a representative occupations such as lock component assembler with 1,800 such jobs in the region and 21,000 such jobs in the nation and semi-conductor checker with 2,500 such jobs in the region and 60,000 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 September 18, 2012, through the date of the decision. (Tr. 28, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ's decision. (Tr. 5). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-4). On April 25, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on June 2, 2016. ECF No. 9. Both Parties have filed appeal briefs. ECF Nos. 15, 16. This case is now ready for decision.
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).
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).
Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to find Plaintiff met a Listing, (B) in his credibility analysis, and (C) in the RFC determination ECF No. 15, Pgs. 3-19. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 16.
The ALJ must determine whether Plaintiff has a severe impairment that significantly limits the physical or mental ability to perform basic work activities. A medically determinable impairment or combination of impairments is severe if it significantly limits an individual's physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1521 and 416.921.
The ALJ found Plaintiff did suffer from impairments considered to be severe within the meaning of the Social Security regulations. These impairments included osteoarthritis of the right hip, history of right shoulder impingement, migraine headache, post-traumatic stress disorder (PTSD), and depression. (Tr. 11, Finding 3). However, there was no substantial evidence in the record showing Plaintiff's condition was severe enough to meet or equal that of a listed impairment as set forth in the Listing of Impairments. See 20 C.F.R. pt. 404, subpt. P, app.1. Plaintiff has the burden of establishing that his impairment(s) meet or equal an impairment set out in the Listing of Impairments. See Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990). Plaintiff has not met this burden.
Plaintiff argues he meets a Listing under Section 1.02 for major dysfunction of a joint and 1.03 for reconstructive surgery of a major weight bearing joint.
Impairments found under Listing 1.02 for major joint dysfunction requires evidence of:
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02.
An "inability to ambulate effectively" is an extreme limitation of the ability to walk, i.e., an impairment that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is having insufficient lower extremity functioning to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2b(1). To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living, and they must be able to travel without companion assistance to and from a place of employment or school. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2b(2). Examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. Id.
In this matter, Plaintiff has failed to establish he is unable to ambulate effectively. Plaintiff has no evidence he has to use a walker, two crutches, or two canes to walk, or that a physician prescribed these items. Further, Plaintiff presented no diagnostic medical evidence showing he has a major dysfunction of a joint characterized by gross anatomical deformity, and findings on medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joints.
An "inability to perform fine and gross movements effectively" means an extreme loss of function of both upper extremities; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. To use their upper extremities effectively, individuals must be capable of sustaining such functions as reaching, pushing, pulling, grasping, and fingering to be able to carry out activities of daily living. Examples of inability to perform fine and gross movements effectively include, but are not limited to, the inability to prepare a simple meal and feed oneself, the inability to take care of personal hygiene, the inability to sort and handle papers or files, and the inability to place files in a file cabinet at or above waist level. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2c.
There is no credible evidence showing Plaintiff is prohibited from ambulating effectively with a major peripheral joint in each upper extremity resulting in inability to perform fine and gross movements effectively.
To meet listing 1.03, Plaintiff must show he underwent a reconstructive surgery or surgical arthrodesis of a major weight-bearing joint with inability to ambulate effectively and return to effective ambulation did not occur, or is not expected to occur within twelve months of onset. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, listings 1.03. As mentioned above, the record does not support a finding Plaintiff had ineffective ambulation. Although Plaintiff did undergo a rotator cuff repair, the record also shows Plaintiff regained full active range of motion in his shoulder post-operatively. (Tr. 961).
Whether Plaintiff meets a listed impairment is a medical determination and must be established by medically acceptable clinical and laboratory diagnostic techniques. See 20 C.F.R. §§ 404.1525(c), 404.1526(b), 416.925(c), 416.926(b). Plaintiff has not met this burden. I find substantial evidence supports the ALJ's determination that Plaintiff did not have an impairment or combination of impairments equal to one listed in 20 C.F.R. pt. 404, subpt. P, app.1.
Plaintiff claims the ALJ erred in his credibility determination. ECF No. 15, Pgs. 12-16. In response, Defendant argues the ALJ properly evaluated and discredited Plaintiff's subjective complaints pursuant to the directives of Polaski. ECF No. 16.
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.
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 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. 15-26). 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 inconsistent with the record, (3) No persuasive evidence of medication side effects, (4) No physician has placed a level of limitation on Plaintiff's activities comparable to those described by Plaintiff, (5) Plaintiff's non compliance with medical treatment, (6) employment following filing application for disability, and (7) pursuit of training for heating and air conditioner repair. 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.
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 a modified range of sedentary work with the ability to occasionally lift and carry or push and pull ten pounds; sit for at least six hours in an eight-hour work day; stand or walk two hours in an eight-hour work day; should avoid overhead reaching and lifting with the right dominant upper extremity; can perform frequent fingering or handling with the left (non-dominant) upper extremity; would require the use of a cane in ambulating to and from the work, and retains the ability to understand, remember, carry out detailed instructions, and respond to changes in the workplace. (Tr. 13-14, Finding 5). Plaintiff argues the ALJ erred in this RFC determination. ECF No. 15, Pgs. 16-20. However, substantial evidence supports the ALJ's RFC determination.
Plaintiff alleged disability based on problems with his right hip and shoulder. However, the ALJ discussed at length the medical record including physical examination that showed Plaintiff had bilateral negative straight leg raising; normal gait and coordination; intact reflexes; unhindered grip strength; and no evidence of muscle weakness, muscle atrophy, or sensory abnormalities. (Tr. 18-19, 985).
Further, imaging of Plaintiff's hip revealed mild to moderate degenerative changes and some impingement, but was otherwise normal. (Tr. 19, 741). Imaging of Plaintiff's right shoulder revealed joint separation with early osteoarthritis, but otherwise unremarkable. (Tr. 19, 986). Finally, images of Plaintiff's cervical spine showed Plaintiff had moderate degenerative changes between levels C 5 and C7, but no compression deformity or subluxation. (Tr. 19, 741).
From a mental health standpoint, ALJ noted Plaintiff had denied any suicidal or homicidal ideation or psychotic symptoms to his physician. (Tr. 668, 876, 922). Also, Plaintiff's mental status examinations were often within normal limits with proper orientation, normal speech, rational and goal-directed thought process, and normal thought content. (Tr. 642-644, 668, 673, 876, 989-992, 1007).
Finally, Plaintiff underwent a consultative psychological examination on May 21, 2013 that indicated Plaintiff could perform day-to-day adaptive functioning, communicate and interact in a socially adequate manner, communicate intelligibly and effectively, cope with the cognitive demands of work-like tasks, and persist and complete tasks within an acceptable time frame. (Tr. 988-992).
As shown by the above medical evidence, 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.
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.
