Ledbetter v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

DAVONNE ELIZABETH LEDBETTER PLAINTIFF

vs. Civil No. 6:17-cv-06088

NANCY BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Davonne Elizabeth Ledbetter (“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 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. 9.1 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 December 19, 2014. (Tr. 20). In this

application, Plaintiff alleges being disabled due to due to laryngeal amyloidosis and GERD, acid

reflux. (Tr. 153). Plaintiff alleged an onset date of December 17, 2014. (Tr. 135). This application

was denied initially and again upon reconsideration. (Tr. 20).

On March 10, 2016, Plaintiff had an administrative hearing on her application. (Tr. 32-49).

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.”

1

Plaintiff was present and was represented by Michael Angel. Id. Plaintiff, and Vocational Expert

(“VE”) William Elmore, testified at this hearing. Id. At this hearing, Plaintiff testified she was fifty-

three (53) years old and had a high school education with some college. (Tr. 36).

On April 26, 2016, the ALJ entered an unfavorable decision denying Plaintiff’s application.

(Tr. 20-27). In this decision, the ALJ determined Plaintiff met the insured status requirements of the

Act through December 31, 2019. (Tr. 2, Finding 1). The ALJ also found Plaintiff had not engaged

in substantial gainful activity (“SGA”) since December 17, 2014, the alleged onset date. (Tr. 22,

Finding 2).

The ALJ then found Plaintiff had the following severe impairments: laryngeal amyloidosis.

(Tr. 22, Finding 3). The ALJ then determined those impairments did not 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. 23, Finding 4).

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

(Tr. 23-25). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found her

claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained

the RFC to perform a full range of work at all exertional levels but limited to occasional oral

communication of simple information where speaking was not essential to the job performance due

to voice problems. Id.

The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, Finding 6). The ALJ

found Plaintiff capable of performing her PRW as a teacher and custodian. Id. In the alternative,

given all Plaintiff's vocational factors, the ALJ also found a hypothetical individual would be able

to perform the requirements of representative occupations such as hospital cleaner with

2

approximately 450,000 jobs in the nation, and housekeeping with approximately 40,000 such jobs

in the nation. Based upon this finding, the ALJ determined Plaintiff had not been under a disability

as defined by the Act from December 17, 2014, through the date of the decision. (Tr. 27, Finding

7).

Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable

decision. (Tr. 132-134). The Appeals Council declined to review this unfavorable decision. (Tr.

1-6). On August 29, 2017, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed

appeal briefs. ECF Nos. 16, 17. 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)

(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

3

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).

3. Discussion:

In her appeal brief, Plaintiff raises the following arguments for reversal: (1) the ALJ erred

4

in the RFC determination, (2) the ALJ ignored Plaintiff’s obesity, (3) the ALJ erred in his PRW

determination, (4) the ALJ erred in determining Plaintiff’s severe impairments, and (5) the ALJ erred

in assessing her credibility ECF No. 16. In response, the Defendant argues the ALJ did not err in

any of his findings. ECF No. 17. Upon review, the Court finds the ALJ improperly evaluated

Plaintiff’s subjective complaints. Thus, the Court will only evaluate Plaintiff’s first 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.

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.

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.

5

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 perform an appropriate Polaski evaluation. Notably,

instead of evaluating the Polaski factors as the ALJ understood he was required to do and instead

of stating inconsistencies in the record as required by Polaski, the ALJ stated the following:

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 consistent with the

medical evidence and other evidence in the record for the reasons explained in the

decision.

(Tr. 24).

Other than mentioning some of Plaintiff’s daily activities, the ALJ made no specific findings

regarding the inconsistencies between Plaintiff’s claimed subjective complaints and the record

evidence. The ALJ must make a specific credibility determination, articulate the reasons for

discrediting the Plaintiff’s testimony, and address any inconsistencies between the testimony and the

6

record. The ALJ failed to perform this analysis.

The ALJ’s decision to discount Plaintiff’s subjective complaints because the medical

evidence did not support those allegations was improper under Polaski. See Polaski, 739 F.2d at

1322 (recognizing the ALJ cannot discount a claimant’s subjective complaints “solely because the

objective medical evidence does not fully support them [the subjective complaints]”). Thus, because

the ALJ did not comply with the requirements of Polaski, 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 18th day of October 2018.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U. S. MAGISTRATE JUDGE

7