Dean v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

JAMES K. DEAN PLAINTIFF

vs. Civil No. 6:17-cv-06108

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

James K. Dean (“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 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. 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 his disability application on February 2, 2013. (Tr. 20). In this

application, Plaintiff alleges being disabled due to a head injury, Hepatitis C, and bipolar disorder.

(Tr. 200). Plaintiff alleges an onset date of February 2, 2013. (Tr. 20). His application was denied

initially and again upon reconsideration. (Tr. 73-104).

Plaintiff requested an administrative hearing on his denied application. (Tr. 116-117). This

hearing request was granted, and Plaintiff’s administrative hearing was held on September 15, 2016

in Hot Springs, Arkansas. (Tr. 36-62). At this hearing, Plaintiff was present and was represented

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

hearing. Id.

On September 28, 2016, after the administrative hearing, the ALJ entered an unfavorable

decision denying Plaintiff’s disability application. (Tr. 20-33). The ALJ determined Plaintiff had

not engaged in Substantial Gainful Activity (“SGA”) since August 2, 2013, his application date. (Tr.

22, Finding 1). The ALJ determined Plaintiff had the following severe impairments: history of a

closed head injury with fractures, seizure disorder, headaches, history of right knee surgery for torn

ligaments, hepatitis, an anti-social personality disorder, mood disorder, and a history of substance

abuse, in remission. (Tr. 22-23, Finding 2). 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. 23-

24, Finding 3).

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

Residual Functional Capacity (“RFC”). (Tr. 24-30, 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 light work as defined in 20

CFR 416.967(b) except the claimant is limited to occasional climbing, stooping,

crouching, crawling, and kneeling. The claimant should not climb ladders, scaffolds,

or work at unprotected heights because of balance issues. The claimant should not

operate motor vehicles or machinery, such as cars, forklifts, or buses. The claimant

can lift and/or carry up to 20 pounds occasionally and 10 pounds frequently. The

claimant can sit, stand, and/or walk for up to six hours in an eight-hour workday.

The claimant is limited to unskilled, rote work activities. The claimant has limited

reading and writing abilities because of his educational level. The claimant can

understand, follow, and remember concrete instructions, such as unskilled or rote

work. He can tolerate superficial contact wit the public, coworkers, and supervisors.

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The claimant should have very limited contact with the public. The claimant can

perform tasks with coworkers that involve very little interaction. The claimant is

able to meet/greet and take simple instructions and/or directions from supervisors and

coworkers.

Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 29-30, Finding 5).

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

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

in significant numbers in the national economy. (Tr. 30-31, 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 cleaner with

225,000 such jobs nationally and 2,000 such jobs in Arkansas and as a hand packer with 320,000

such jobs nationally and 2,900 such jobs in Arkansas. Id. Based upon this finding, the ALJ

determined Plaintiff had not been under a disability (as defined by the Act) from August 2, 2013

(application date) through the date of the ALJ’s decision or through September 28, 2016 (ALJ’s

decision date). (Tr. 31, Finding 10).

Plaintiff sought review with the Appeals Council. On August 29, 2017, the Appeals Council

denied this request for review. (Tr. 1-6). On October 6, 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, 16-17. 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 his appeal brief, Plaintiff claims the ALJ erred in failing to address Listing 12.02 and the

ALJ erred in finding Plaintiff could perform light work. ECF No. 16 at 1-12. Upon review, the

Court finds Plaintiff’s second 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. § 416.929.1 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;

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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(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).

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 his medical records. (Tr. 20-31). The ALJ summarized Plaintiff’s medical records and

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

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records:

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

medically determinable impairments could reasonably be expected to 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 an other evidence in the record for the reasons explained in this decision.

(Tr. 29). Indeed, although the ALJ mentioned Plaintiff’s subjective complaints, the ALJ did not

explain what specific findings supported the ALJ’s credibility determination. 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 7th day of November 2018.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE

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