Neitzel v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

IRMA MARIE NEITZEL PLAINTIFF

vs. Civil No. 6:17-cv-06072

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Irma Marie Neitzel (“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.

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. 7.1 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 September 20, 2011. (Tr. 14). In this

application, Plaintiff alleges she is disabled due to nerve damage to her right arm and hand. (Tr. 135).

Plaintiff alleges an onset date of September 14, 2011. (Tr. 14). This application was denied initially

and again upon reconsideration. (Tr. 45-46).

Thereafter, Plaintiff requested an administrative hearing on her application, and this hearing

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.”

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request was granted. (Tr. 26-44). An administrative hearing was held on October 25, 2012 in Hot

Springs, Arkansas. (Tr. 26-44). At this administrative hearing, Plaintiff was present and was

represented by Hans Pullen. Id. Plaintiff and Vocational Expert (“VE”) Elizabeth Clem testified at

this hearing. Id.

On January 23, 2013, the ALJ entered an unfavorable decision on Plaintiff’s disability

application. (Tr. 11-21). In this decision, the ALJ found Plaintiff met the insured status requirements

of Act through June 30, 2016. (Tr. 16, Finding 1). The ALJ found Plaintiff had not engaged in

Substantial Gainful Activity (“SGA”) since September 14, 2011, her alleged onset date. (Tr. 16,

Finding 2). The ALJ found Plaintiff had the following severe impairments: status post fracture of the

right humerus and joint dysfunction. (Tr. 16, Finding 3). The ALJ, however, also determined

Plaintiff did not have an impairment or combination of impairments that met or medically equaled

one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16-17, Finding 4).

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

(Tr. 17-19, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and determined they

were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC for the

following:

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 she is to have no rapid, repetitive, flexion or extension of the

hands.

Id. The ALJ determined Plaintiff was fifty-four (54) years old, which is defined as a “person closely

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

determined Plaintiff had at least a high school education and was able to communicate in English.

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(Tr. 20, Finding 8).

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

unable to perform any of her PRW. (Tr. 20, Finding 6). The ALJ did, however, determine Plaintiff

retained the capacity to perform other work existing in significant numbers in the national economy.

(Tr. 20-21, Finding 10). Specifically, the ALJ determined Plaintiff retained the capacity to perform

semi-skilled, light work such as work as a personal care assistant with 3,400 such jobs in Arkansas

and 350,000 such jobs in the United States. Id. Accordingly, based upon this finding, the ALJ

determined Plaintiff had not been under a disability, as defined by the Act, from September 14, 2011

through the date of the ALJ’s decision or through January 23, 2013. (Tr. 21, Finding 11).

Plaintiff requested the Appeals Council’s review the ALJ’s unfavorable disability

determination. (Tr. 1-4). On March 12, 2014, the Appeals Council declined to review the ALJ’s

disability determination. Id. On August 7, 2017, Plaintiff filed the present appeal. ECF No. 1. The

Parties consented to the jurisdiction of this Court on August 18, 2017. ECF No. 7. Both Parties have

filed appeal briefs. ECF Nos. 12-13. 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)

(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

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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

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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 alleges her case should be reversed and remanded for the

following reasons: (A) the ALJ erred by failing to develop the record; and (B) the ALJ erred by

concluding she retained the capacity to only perform light work. ECF No. 12 at 1-17. In response,

Defendant argues there is no basis for reversal in this case. ECF No. 12. 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. § 416.929.2 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.

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.

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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).

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

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

not supported by her medical records. (Tr. 17-19). The ALJ briefly summarized Plaintiff’s medical

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

objective medical evidence:

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

comprehensive assessment of the medical record from multiple medical sources that

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have given the undersigned a full picture of the claimant’s residual functional

capacity. The record reflects the claimant’s longitudinal history, both negative and

positive progress notes, and a comprehensive summary of her treatment. Additionally,

the claimant’s credibility has been taken into account and weighed against the

medical opinion. In that respect, while the claimant has suffered some injuries there

are no injuries that exclude her from working at the level prescribed in the residual

functional capacity above. The undersigned has considered the claimant’s

impairments and included them in the residual functional capacity.

(Tr. 19) (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]”).

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 13th day of June 2018.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE

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