Wilson v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

DESTINY WILSON PLAINTIFF

vs. Civil No. 4:17-cv-04084

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Destiny Wilson (“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

Supplemental Security Income (“SSI”) under Title 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 her disability application on November 16, 2011. (Tr. 21). In this

application, Plaintiff alleges being disabled due to tachycardia, diabetes, neuropathy, bipolar

disorder, PTSD, high blood pressure, irregular heart beat, anxiety, fluid build up, acid reflux disease,

severe back pain, and high cholesterol. (Tr. 269). Plaintiff alleges an onset date of June 1, 2010.

(Tr. 130). Her application was denied initially and again upon reconsideration. (Tr. 171-191).

Plaintiff requested an administrative hearing on her denied application. (Tr. 198). This

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hearing request was granted, and Plaintiff’s administrative hearing was held on May 4, 2016 in

Shreveport, Louisiana. (Tr. 102-126). At this hearing, Plaintiff was present and was represented by

counsel, Greg Giles. Id. Plaintiff and Vocational Expert (“VE”) Mr. Thomas1 testified at this

hearing. Id.

On June 16, 2016, after the administrative hearing, the ALJ entered an unfavorable decision

denying Plaintiff’s disability application. (Tr. 18-33). The ALJ determined Plaintiff had not

engaged in Substantial Gainful Activity (“SGA”) since August 28, 2014, her application date. (Tr.

23, Finding 1). The ALJ determined Plaintiff had the following severe impairments: insulin

dependent diabetes mellitus, diabetic neuropathy, obesity, and bipolar disorder. (Tr. 23-27, Finding

2). 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. 27-28, Finding 3).

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

Residual Functional Capacity (“RFC”). (Tr. 29-31, Finding 4). First, the ALJ evaluated Plaintiff’

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 sedentary work as defined

in 20 CFR 416.967(a) except she occasionally balance, stoop, crouch, crawl and

kneel; can climb stairs and ramps occasionally; cannot climb ladders, ropes or

scaffolds; can occasionally operate foot controls; can occasionally operate a motor

vehicle; can understand, remember and carry out short, simple instructions; can

perform simple, routine tasks with no fast-paced, high quota production work; can

make only simple work-related decisions; can adapt to few, if any, workplace

changes; and, can tolerate only occasional interaction with co-workers, supervisors,

1 Mr. Thomas’s first name was not included in the transcript. (Tr. 102).

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and the general public.

Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 31, Finding 5).

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

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

in significant numbers in the national economy. (Tr. 32, Finding 9). The VE testified at the

administrative hearing regarding this issue. Id. Specifically, the VE testified Plaintiff retained the

capacity to perform work as a patcher (sedentary, unskilled) and as a touch-up screener (sedentary,

unskilled) with approximately 8,500 such jobs in the national economy. Id. Based upon this finding,

the ALJ determined Plaintiff had not been under a disability (as defined by the Act) from August 28,

2014 (application date) until June 16, 2016 (ALJ’s decision date). (Tr. 32, Finding 10).

Plaintiff sought review with the Appeals Council. On July 26, 2017, the Appeals Council

denied this request for review. (Tr. 1-3). On September 25, 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, 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)

(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).

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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

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

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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 decision is not supported by substantial

evidence in the record because the ALJ did not “give proper consideration to the side-effects” of her

medication. ECF No. 11 at 1-15. Upon review, the Court finds this argument is merited, and the

ALJ has not a supplied a sufficient basis for discounting Plaintiff’s subjective complaints. Thus, the

Court will only address this issue.

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

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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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).

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

ALJ based his credibility determination upon the fact Plaintiff’s subjective complaints were not

supported by her medical records. (Tr. 30). The ALJ summarized Plaintiff’s medical records and

discounted her subjective complaints because they were not supported by the objective medical

records:

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

complaints of the claimant, the objective medical evidence of record, and the

observations of the state agency medical consultant, as discussed.

(Tr. 31) (emphasis added). Indeed, although the ALJ mentioned Plaintiff’s “subjective complaints,”

the ALJ did not explain what subjective complaints supported the ALJ’s finding. Such a

determination 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 October 2018.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE

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