Calhoon v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

GENA CALHOON PLAINTIFF

vs. Civil No. 4:19-cv-04042

COMMISSIONER, SOCIAL DEFENDANT

SECURITY ADMINISTRATION

MEMORANDUM OPINION

Gena Calhoon (“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

period of disability and 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. 6.1 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 June 24, 2016. (Tr. 10). In this

application, Plaintiff alleges being disabled due to back problems, fibromyalgia, and rheumatoid

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” and refer to the document filed at ECF No. 9. These

references are to the page number of the transcript itself not the ECF page number.

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arthritis in all joints. (Tr. 142). Plaintiff alleges an onset date of November 14, 2015. (Tr. 10).

This application was denied initially and again upon reconsideration. (Tr. 68-76).

On August 27, 2018, after the administrative hearing, the ALJ entered a fully unfavorable

decision denying Plaintiff’s application. (Tr. 7-24). The ALJ determined Plaintiff met the insured

status requirements of the Act through December 31, 2020. (Tr. 12, Finding 1). The ALJ

determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since November 14,

2015 (her alleged onset date). (Tr. 12, Finding 2). The ALJ determined Plaintiff had the following

severe impairments: degenerative disc disease status post fusion; rheumatoid arthritis;

degenerative joint disease; and osteoarthritis. (Tr. 12, Finding 3). Despite being severe, the ALJ

also determined Plaintiff did not have an impairment or combination of impairments that met or

medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

(Tr. 12-13, Finding 4).

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

Residual Functional Capacity (“RFC”). (Tr. 13-18, Finding 5). Specifically, the ALJ found

Plaintiff retained 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 404.1567(b) except for lifting and/or carrying 20 pounds occasionally and 10

pounds frequently; sitting for 6 hours; standing for 6 hours; and walking for 6 hours.

The claimant can stoop and crouch only occasionally.

Id.

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

and the VE testified at the administrative hearing regarding this PRW. Id. Considering this

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testimony, the ALJ determined Plaintiff retained the ability to perform her PRW as an automobile

title clerk. Id. Because Plaintiff retained the capacity to perform this PRW, the ALJ determined

Plaintiff had not been under a disability, as defined by the Act, from November 14, 2015 through

the date of her decision or through August 30, 2018. (Tr. 18, Finding 7).

Plaintiff requested the Appeals Council’s review of the ALJ unfavorable disability

determination. On March 1, 2019, the Appeals Council declined to review the ALJ’s disability

determination. (Tr. 1-3). On April 22, 2019, Plaintiff filed the present appeal. ECF No. 1. The

Parties consented to the jurisdiction of this Court of April 23, 2019. ECF No. 6. 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).

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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

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).

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3. Discussion:

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

erred by discrediting her subjective complaints of pain; (2) the ALJ erred by giving improper

weight to the opinions of her treating physician; and (3) the ALJ erred in finding she could perform

her past work. ECF No. 11 at 1-21. Because the Court finds the ALJ erred in assessing her

subjective complaints, the Court will only address this argument for reversal.

The Court notes that 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 if 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 l

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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ong 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 Court finds the ALJ did not provide sufficient reasons for

discounting Plaintiff’s subject complaints. In her opinion, the ALJ merely summarized Plaintiff’s

medical records and provided the following routine statement regarding those allegations: “In sum,

the above residual functional capacity assessment is supported the objective medical evidence of

record and the observation of the state agency medical consultant.” (Tr. 18).

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

subjective complaints based upon her medical records alone. 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

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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 the ALJ’s RFC determination and credibility

analysis are not supported by substantial evidence in the record. As such, this case is reversed and

remanded for further findings consistent with this opinion. A judgment incorporating these

findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.

ENTERED this 3rd day of March 2020.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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