Taylor v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

PAMELA TAYLOR PLAINTIFF

vs. Civil No. 1:17-cv-01044

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Pamela Taylor (“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 a

period of disability and Disability Insurance Benefits (“DIB”) under Title II 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. 7. 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 her disability application on June 23, 2014. (Tr. 11). In this

application, Plaintiff alleges being disabled due to multiple sclerosis; transverse myelitis;

osteoarthritis, fibrmyalgia; chronic pain in her back, neck, lower extremities, and thoracic spine;

neuropathy; roto-scoliosis in her lower extremities; depression; degenerative joint and disc disease;

and thoracic spine scoliosis. (Tr. 136). Plaintiff alleges an onset date of April 2, 2014. (Tr. 11).

Her application was denied initially and again upon reconsideration. (Tr. 47-58).

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Plaintiff requested an administrative hearing on her denied application. This hearing request

was granted, and Plaintiff’s administrative hearing was held on January 19, 2016. (Tr. 22-46). At

this hearing, Plaintiff was present and was represented by Greg Giles. Id. Plaintiff, Medical Expert

(“ME”) Kweli Amusa, and Vocational Expert (“VE”) Leonard Francois testified at this hearing. Id.

On March 31, 2016, after the administrative hearing, the ALJ entered an unfavorable decision

denying Plaintiff’s disability application. (Tr. 8-17). The ALJ determined Plaintiff met the insured

status requirements of the Act through December 31, 2019. (Tr. 13, Finding 1). The ALJ

determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 2, 2014,

her alleged onset date. (Tr. 13, Finding 2). The ALJ determined Plaintiff had the following severe

impairments: multiple sclerosis and arthritis. (Tr. 13, Finding 3). The ALJ also determined 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. 13, Finding 4).

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

Residual Functional Capacity (“RFC”). (Tr. 13-15, 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, the undersigned finds that the

claimant has the residual functional capacity to perform light work as defined in 20

CFR 404.1567(b) except claimant can sit for 30 minutes at a time, and then needs to

stand for about 10 minutes before returning to a seated position.

Id. The ALJ determined Plaintiff was fifty-one (51) years old, which is defined as an “individual

closely approaching advanced age” under 20 C.F.R. § 404.1563(d) (2008). (Tr. 16, Finding 7). The

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ALJ also determined Plaintiff had at least a high school education and was able to communicate in

English. (Tr. 16, Finding 8).

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 15-16, Finding 6).

Considering her RFC, the ALJ determined Plaintiff did not retain the capacity to perform her PRW.

Id. The ALJ then considered whether Plaintiff retained the capacity to perform other work existing

in significant numbers in the national economy. (Tr. 16-17, Finding 10). The VE testified at the

administrative hearing on this matter. Id.

Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform

representative occupations such as appointment clerk (sedentary, semi-skilled) with 121,000 such

jobs in the national economy; receptionist (sedentary, semi-skilled) with 100,000 such jobs in the

national economy; and information clerk (sedentary, semi-skilled) with 96,000 such jobs in the

national economy. (Tr. 16). Because Plaintiff retained the capacity to perform this other work, the

ALJ determined Plaintiff had not been under a disability (as defined by the Act) from April 2, 2014

through the date of her decision or through March 31, 2016. (Tr. 17, Finding 11).

Plaintiff sought review with the Appeals Council. On June 1, 2017, the Appeals Council

denied this request for review. (Tr. 1-3.). On June 30, 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. 7, 11-12. 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)

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(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,

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

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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 determination is not supported by

substantial evidence in the record. ECF No. 11 at 1-13. Specifically, Plaintiff claims the following:

(1) the ALJ erred in assessing whether her impairments meet the requirements of the Listings; and

(2) the ALJ erred in finding she retained the capacity to perform light work. Id. 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 Plaintiff’s second

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

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

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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.

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).

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.

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

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

not supported by her medical records. (Tr. 14-15). The ALJ briefly summarized Plaintiff’s medical

records and then discounted her subjective complaints because they were not supported by the

objective medical evidence:

After careful consideration of the evidence, the undersigned finds that the claimant’s

medically determinable impairments could reasonably be expected to cause the

alleged symptoms; however, the claimant’s statements concerning the intensity,

persistence and limiting effects of these symptoms are not entirely credible for the

reasons explained in this decision.

. . .

The objective evidence does not support the degree of limitation alleged by claimant.

. . .

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

objective medical evidence of record.

(Tr. 14-15) (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]”).

Indeed, the only other Polaski factors the ALJ referenced were her medical treatment and

daily activities. Notably, in the opinion, the ALJ stated Plaintiff had “not always sought regular

medical treatment . . . nor followed the treatment prescribed.” (Tr. 15). The ALJ, however, did not

elaborate as to what treatment Plaintiff failed to seek or to follow. Id.

Furthermore, the daily activities the ALJ referenced were the ability to do “some shopping

and household chores” as well as the ability “to take care of her personal needs.” (Tr. 15). These

are certainly not extensive daily activities that would detract from a finding of disability. See Hutsell

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v. Massanari, 259 F.3d 707, 713 (8th Cir. 2001) (recognizing the long-established rule that a

claimant need not “be bedridden to qualify for disability benefits”). 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 7th day of June 2018.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE

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