Vermillion v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

ROBBIE LEE VERMILLION PLAINTIFF

vs. Civil No. 4:18-cv-04039

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

MEMORANDUM OPINION

Robbie Lee Vermillion (“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 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. 8. Pursuant to this authority, the Court issues

this memorandum opinion and orders the entry of a final judgment in this matter.

1. Background:

Plaintiff filed his application for DIB on October 21, 2016. (Tr. 15). In this application,

Plaintiff alleges being disabled due to a traumatic brain injury, neck fracture, back fracture, mental

stress, and a heart condition. (Tr. 270). Plaintiff alleges an onset date of October 1, 2016. (Tr. 15).

His application was denied initially and again upon reconsideration. Id.

Plaintiff requested an administrative hearing on his denied application. (Tr. 125-126). This

hearing request was granted, and Plaintiff’s administrative hearing was held on August 7, 2017. (Tr.

33-60). At this hearing, Plaintiff was present and was represented by counsel, Matthew Golden. Id.

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Plaintiff and Vocational Expert (“VE”) James Wallace testified at this hearing. Id.

On October 30, 2017, after the administrative hearing, the ALJ entered an unfavorable

decision denying Plaintiff’s disability application. (Tr. 15-26). In this decision, the ALJ determined

Plaintiff met the insured status requirements of the Act through December 31, 2021. (Tr. 17, Finding

1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”)

since October 1, 2016, the alleged onset date. (Tr. 17, Finding 2).

The ALJ then determined Plaintiff had the following severe impairments: compression

fractures of the thoracic spine, degenerative disc disease of the cervical spine, restless leg syndrome,

heart murmur, and obesity. (Tr. 17, Finding 3). 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. 19,

Finding 4).

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

Residual Functional Capacity (“RFC”). (Tr. 20-24, Finding 5). First, the ALJ evaluated Plaintiff’

subjective complaints and found they were not entirely credible. Id. Second, the ALJ determined

Plaintiff had the RFC to perform light work with frequent, but not constant, balancing, stooping,

kneeling, crouching, crawling, and climbing stairs and ramps, and no climbing of ladders, ropes, or

scaffolds. Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 24, Finding 6). The

ALJ determined Plaintiff was unable to perform any PRW. Id. The ALJ then determined whether

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

economy. (Tr. 25, Finding 10). The VE testified at the administrative hearing regarding this issue.

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Id. Specifically, the VE testified Plaintiff retained the capacity to perform work as hotel housekeeper

with 131,381 such jobs nationally and cashier with 846,906 such jobs nationally. Id. Based upon

this finding, the ALJ determined Plaintiff had not been under a disability from October 1, 2016

through the date of the ALJ’s decision. (Tr. 25, Finding 11).

Plaintiff sought review with the Appeals Council. On January 23, 2018, the Appeals Council

denied this request for review. (Tr. 1-4). On March 21, 2018, Plaintiff filed a Complaint in this

case. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 21, 22. 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).

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

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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 his appeal brief, Plaintiff claims the ALJ erred: (1) in evaluating Plaintiff’s subjective

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complaints and (2) in failing to properly evaluate Plaintiff’s severe impairments. ECF No. 21 at 5-

10. Upon review, the Court finds Plaintiff’s third argument is merited, and the ALJ has not 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;

(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

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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[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. 23-27). The ALJ summarized Plaintiff’s medical records and

discounted her 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 some of

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 this

decision.

(Tr. 21).

The ALJ made no specific findings regarding the inconsistencies between Plaintiff’s claimed

subjective complaints and the record evidence. 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

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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 January 2019.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE

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