Smith v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

PERRY DON SMITH PLAINTIFF

vs. Civil No. 1:17-cv-01066

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Perry Don Smith (“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 applications for

Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and a period of

disability under Titles II and 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 his disability applications on July 14, 2014 (DIB) and on February

8, 2016 (SSI). (Tr. 20). In these applications, Plaintiff alleges being disabled due to diabetes;

morbid obesity; left leg edema; severe arthritis in both knees; pins, plates, and rods in left leg and

hip; and surgery on both knees. (Tr. 199). Plaintiff alleges an onset date of November 1, 2013. (Tr.

20). His applications were denied initially and again upon reconsideration. (Tr. 65-89).

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Plaintiff requested an administrative hearing on his denied applications. (Tr. 100-101). This

hearing request was granted, and Plaintiff’s hearing was held on August 24, 2016 in Alexandria,

Louisiana. (Tr. 35-64). At this hearing, Plaintiff was present and was represented by Greg Giles.

Id. Plaintiff and Vocational Expert (“VE”) Mr. Peterson testified at this hearing. Id.

On September 29, 2016, after the administrative hearing, the ALJ entered an unfavorable

decision denying Plaintiff’s disability applications. (Tr. 17-34). The ALJ determined Plaintiff met

the insured status requirements of the Act through December 31, 2018. (Tr. 22, Finding 1). The

ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since November

1, 2013, his alleged onset date. (Tr. 22, Finding 2). The ALJ determined Plaintiff had the following

severe impairments: diabetes mellitus, obesity, and osteoarthritis with chronic pain syndrome. (Tr.

22-23, Finding 3). 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. 23, Finding 4).

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

Residual Functional Capacity (“RFC”). (Tr. 23-27, Finding 5). 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 404.1567(a) and 416.967(a) except the claimant is limited to occasional

climbing of ramps and stairs but no climbing of ladders, ropes, or scaffolds and only

occasional balancing, stooping, kneeling, crouching, and crawling.

Id.

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The ALJ determined Plaintiff was thirty-nine (39) years old, which is defined as a “younger

individual” under 20 C.F.R. § 404.1563(c) (2008) and 20 C.F.R. § 416.963(c) (2008), on his alleged

disability onset date. (Tr. 27, Finding 7). The ALJ determined Plaintiff had at least a high school

education and was able to communicate in English. (Tr. 27, Finding 8).

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

was unable to perform any of his PRW. (Tr. 27, Finding 6). The ALJ also considered whether

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

economy. (Tr. 27-28, Finding 10). The VE testified at the administrative hearing regarding this

issue. Id. Based upon that testimony, the ALJ found Plaintiff retained the capacity to perform work

as a food and beverage order clerk (sedentary, unskilled) with 319,400 such jobs in the nation and

document preparer (sedentary, unskilled) with 27,600 such jobs in the nation. (Tr. 28). Based upon

this finding, the ALJ determined Plaintiff had not been under a disability as defined by the Act from

November 1, 2013 (alleged onset date) through October 4, 2016 (ALJ’s decision date). (Tr. 28,

Finding 11).

Plaintiff sought review with the Appeals Council. On September 25, 2017, the Appeals

Council denied this request for review. (Tr. 1-3). On November 2, 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, 12-13.

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’s decision is not supported by substantial

evidence in the record. ECF No. 12 at 1-18. Plaintiff raises three arguments for reversal: (1) the

ALJ should have found his impairments met the requirements of one of the Listings; (2) the ALJ

improperly assessed his RFC; and (3) the ALJ improperly assessed his credibility. Id. Upon review,

the Court finds 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

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,

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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).

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

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.

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

supported by his medical records. (Tr. 26). In his opinion, the ALJ summarized Plaintiff’s medical

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

medical records:

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.

. . .

A review of the evidence convinces the undersigned that the claimant’s statements

concerning the intensity, persistence and limiting effects of his symptoms are not

entirely consistent with the medical evidence.

(Tr. 26) (emphasis added).

Based upon this review, the Court finds the ALJ discounted Plaintiff’s subjective complaints

based upon his medical records.2 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

2 The ALJ does briefly reference one of the Polaski factors (medication side effects), but the ALJ

found Plaintiff had complained of no side effects. (Tr. 26). This is not accurate. Plaintiff testified about

the side effects of his medication, including having concentration issues, which he called “fuzzy headed

all day.” (Tr. 59).

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judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure

52 and 58.

ENTERED this 10th day of January 2019.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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