Walker v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

PHILLIP WALKER PLAINTIFF

vs. Civil No. 2:17-cv-02094

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Phillip Walker (“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 a

period of disability, Supplemental Security Income (“SSI”), and Disability Insurance Benefits

(“DIB”) under Title 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. 5. Pursuant to this authority, the Court issues

this memorandum opinion and orders the entry of a final judgment in this matter.

1. Background:

Plaintiff protectively filed his disability applications on January 26, 2015. (Tr. 21). In these

applications, Plaintiff alleges being disabled due to PTSD, depression, sleep disorder, gastrointestinal

problems, and high blood pressure. (Tr. 246). Plaintiff alleges an onset date of June 1, 2012. (Tr.

21). His applications were denied initially and again upon reconsideration. (Tr. 71-118).

Plaintiff requested an administrative hearing on his denied applications. This hearing request

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was granted, and Plaintiff’s administrative hearing was held on January 4, 2016 in Fort Smith,

Arkansas. (Tr. 42-70). At this hearing, Plaintiff was present and was represented by R. Scott

Johnson. Id. Plaintiff and Vocational Expert (“VE”) Barbara Hubbard testified at this hearing. Id.

On April 1, 2016, after the administrative hearing, the ALJ entered an unfavorable decision

denying Plaintiff’s disability applications. (Tr. 18-35). The ALJ determined Plaintiff met the

insured status requirements of the Act through December 31, 2016. (Tr. 23, Finding 1). The ALJ

determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since June 1, 2012,

his alleged onset date. (Tr. 23, Finding 2). The ALJ determined Plaintiff had the following severe

impairments: ventral incisional hernia repair; obesity; gout; gastroesophageal reflux disease (GERD);

bilateral hearing loss and tinnitus; major depressive disorder; and PTSD with a history of child

emotional, psychological, and physical abuse. (Tr. 23-24, Finding 3). The ALJ also determined that

Plaintiff did not have an impairment or combination of impairments that meet or medically equal

the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations

No. 4 (“Listings”). (Tr. 24-27, Finding 4).

In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his

Residual Functional Capacity (“RFC”). (Tr. 27-33, Finding 5). First, the ALJ evaluated Plaintiff’s

subjective complaints and found they were not entirely credible. Id. Second, the ALJ determined

Plaintiff had the following RFC:

After careful consideration of the entire record, I find that the claimant has the

residual functional capacity to perform sedentary work as defined in 20 CFR

404.1567(a) and 416.967(a) except no ladders, ropes, or scaffolds; no unprotected

heights; no work around loud noises; can understand, remember, and carry out simple

instructions and tasks; and can interact appropriately with supervisors, coworkers,

and the public but only occasional interaction with the public.

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Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was

unable to perform any of his PRW. (Tr. 33, Finding 6). Based upon this finding, the ALJ

determined Plaintiff had not been under a disability (as defined by the Act) from June 1, 2012

through the date of her decision or through April 1, 2016. (Tr. 34, Finding 11).

Plaintiff sought review with the Appeals Council. On April 27, 2017, the Appeals Council

denied this request for review. (Tr. 1-3). On June 8, 2017, Plaintiff filed a Complaint in this case.

ECF No. 1. Both Parties have filed appeal briefs and have consented to the jurisdiction of this Court.

ECF Nos. 5, 13-14. This case is now ready for determination.

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,

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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).

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3. Discussion:

In his appeal brief, Plaintiff claims the ALJ erred in assessing his RFC. ECF No. 13. Upon

review, the Court finds the ALJ has not a supplied a sufficient basis for assessing Plaintiff’s RFC

and discounting Plaintiff’s subjective complaints. Thus, the Court will only consider this argument

for reversal.

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. § 416.929.1 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

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 that the Plaintiff’s subjective complaints are

not entirely credible, the ALJ’s credibility determination is entitled to deference. See id.; Cox v.

1 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.

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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).

In the present action, the ALJ did not comply with the requirements of Polaski. Instead, the

ALJ based his credibility determination upon his finding that Plaintiff’s subjective complaints were

not supported by his medical records. (Tr. 27-33). The ALJ summarized Plaintiff’s medical records

and discounted his subjective complaints solely because they were not supported by the objective

medical records:

In sum, the above residual functional capacity assessment is supported by the medical

evidence. As the treatment records show, the claimant’s mental health improves with

proper medication and treatment, and physically, he is capable of full range of

sedentary work. Accordingly, it is determined that the claimant has not been under

a disability since June 1, 2012.

(Tr. 33) (emphasis added). Such a finding was improper. See Polaski, 739 F.2d at 1322 (holding

a claimant’s subjective complaints cannot be discounted “solely because the objective medical

evidence does not fully support them [the subjective complaints]”). Accordingly, because the ALJ

provided an insufficient basis for discounting Plaintiff’s subjective complaints, this case must be

reversed and remanded.

4. Conclusion:

Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits

to Plaintiff, is not supported by substantial evidence and should be reversed and remanded. A

judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure

52 and 58.

ENTERED this 25th day of May 2018.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE

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