United States District Court, W.D. Arkansas, Fayetteville Division
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE
Melissa Yvette Fair, brings this action pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of a decision of the
Commissioner of the Social Security Administration
(Commissioner) denying her claim for supplemental security
income (SSI) under the provision of Title XVI of the Social
Security Act (Act). In this judicial review, the Court must
determine whether there is substantial evidence in the
administrative record to support the Commissioner's
decision. See 42 U.S.C. § 405(g).
protectively filed her current application for SSI on October
5, 2015, alleging an inability to work since June 1, 2015,
due to anxiety, depression, panic disorder, PTSD, and panic
attacks. (Tr. 51, 68). An administrative hearing was held on
September 14, 2016, at which Plaintiff appeared with counsel
and testified. (Tr. 32-46). Barbara Hubbard, a Vocational
Expert (VE), also testified. (Tr. 46-49).
written opinion dated November 29, 2016, the Administrative
Law Judge (ALJ) found that Plaintiff had severe impairments
of major depression, anxiety, asthma, and obesity. (Tr. 12).
However, after reviewing all of the evidence presented, the
ALJ determined that Plaintiff's impairment did not meet
or equal the level of severity of any impairment listed in
the Listing of Impairments found in Appendix I, Subpart P,
Regulation No. 4. (Tr. 13). The ALJ found that Plaintiff
retained the residual functional capacity (RFC) to perform
light work as defined in 20 CFR § 416.967(b) except that
Plaintiff was “able to perform simple tasks with simple
instructions. She must work in a controlled environment with
no exposure to dust, fumes or smoke in concentrated amounts
and no temperature extremes.” (Tr. 14). With the help
of a vocational expert (VE), while the Plaintiff had no past
relevant work, the ALJ determined that there were jobs that
existed in significant numbers in the national economy that
Plaintiff could perform, such as a price marking clerk, a
mail routing clerk, or a library clerk. (Tr. 20-21).
then requested a review of the hearing decision by the
Appeals Council, which denied that request on October 4,
2017. (Tr. 1-6). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the
consent of the parties. (Doc. 7). Both parties have submitted
briefs, and the case is now ready for decision. (Docs. 12,
Court's role is to determine whether the
Commissioner's findings are supported by substantial
evidence on the record as a whole. Ramirez v.
Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial
evidence is less than a preponderance, but it is enough that
a reasonable mind would find it adequate to support the
Commissioner's decision. The ALJ's decision must be
affirmed if the record contains substantial evidence to
support it. Edwards v. Barnhart, 314 F.3d 964, 966
(8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747
(8th Cir. 2001). In other words, 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. Young v. Apfel, 221 F.3d 1065, 1068 (8th
well-established that a claimant for Social Security
disability benefits has the burden of proving his disability
by establishing a physical or mental disability that has
lasted at least one year and that prevents him from engaging
in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see
also 42 U.S.C. §§ 423(d)(1)(A), 1382c
(a)(3)(A). The Act defines “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). A Plaintiff must show that his disability, not
simply his impairment, has lasted for at least twelve
Commissioner's regulations require her to apply a
five-step sequential evaluation process to each claim for
disability benefits: (1) whether the claimant has engaged in
substantial gainful activity since filing his claim; (2)
whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the
impairment(s) meet or equal an impairment in the listings;
(4) whether the impairment(s) prevent the claimant from doing
past relevant work; and, (5) whether the claimant is able to
perform other work in the national economy given his age,
education, and experience. See 20 C.F.R. §
413.920. Only if the final stage is reached does the fact
finder consider the Plaintiff's age, education, and work
experience in light of his residual functional capacity.
See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th
Cir. 1982), abrogated on other grounds by Higgins v.
Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R.
argues the following issues on appeal: 1) the ALJ erred in
affording “little weight” to ARNP Williams'
medical opinion; and 2) the ALJ erred in his RFC
determination by not accounting for Plaintiff's moderate
limitations in daily living, social functioning, and
concentration, persistence, or pace, which left the Step Five
determination unsupported by substantial evidence. (Doc. 12).
Subjective Complaints and Symptom Analysis:
was required to consider all the evidence relating to
Plaintiff's subjective complaints including evidence
presented by third parties that relates to: (1)
Plaintiff's daily activities; (2) the duration,
frequency, and intensity of his pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness, and side
effects of his medication; and (5) functional restrictions.
See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th
Cir. 1984). While an ALJ may not discount a claimant's
subjective complaints solely because the medical evidence
fails to support them, an ALJ may discount those complaints
where inconsistencies appear in the record as a whole.
Id. As the Eighth Circuit has observed, “Our
touchstone is that [a claimant's] credibility is
primarily a matter for the ALJ to decide.”
Edwards, 314 F.3d at 966.
reviewing the administrative record, it is clear that the ALJ
properly considered and evaluated Plaintiff's subjective
complaints, including the Polaski factors. In
addressing Plaintiff's credibility, the ALJ noted
Plaintiff's testimony at the hearing that she was unable
to work due to her panic attacks, major anxiety, depression,
and post-traumatic stress disorder. (Tr. 34-35). Plaintiff
also testified that the side effects from her medications
caused her to fall. (Tr. 36). Plaintiff testified that she
had asthma that had worsened in in the last year with her
weight gain. (Tr. 35). Plaintiff also testified that she had
tinnitus. (Tr. 35). Plaintiff stated that she could drive a
car; that she attended church and Celebrate recovery meetings
regularly; that she went to the grocery store; that her
hobbies included watching television and doing puzzles; that
she could do some laundry; that she could walk her dogs: and
that she would go to a friend's house to watch football
games. She also testified that she had three to four bad days
per week. (Tr. 44). On those days, she would stay in the
recliner, watching television and working on puzzles. (Tr.
44). She claimed that her health declined in June of 2015
when she found out that her daughter had been sexually
molested by her father. (Tr. 45).
to Plaintiff's Function Reports, she cared for her pets
with assistance from her son; she had no problems with
personal care; while her son did most of the cooking, she
could prepare simple meals; she could do some laundry and
cleaning; she could drive a car; she could shop in stores for
food and clothing; she attended counseling, visited her
friends' homes and went to church on a regular basis; and
she assisted with teaching the three-year-old class at her
church. (Tr. 189-196, 210-217). She reported that her
attention span would vary; that she could sometimes finish
what she started; and that she could follow written and
spoken instructions with repetition. (Tr. 215-217).
Plaintiff's physical impairments, the record demonstrates
that Plaintiff's asthma had been treated conservatively
for years with medication and that she had experienced some
relief. See Black v. Apfel, 143 F.3d 383, 386 (8th
Cir. 1998); see Robinson v. Sullivan, 956 F.2d 836,
840 (8th Cir. 1992) (course of conservative treatment
contradicted claims of disabling pain).
Court also notes that on one occasion, on February 16, 2016,
Plaintiff reported that she had not been taking her Advair
and was “just being lazy.” (Tr. 330). See
Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004)
(Plaintiff's failure to follow a prescribed course of