Price v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

ABIGAIL PRICE PLAINTIFF

vs. Civil No. 6:20-cv-06104

KILOLO KIJAKAZI DEFENDANT

ACTING COMMISSIONER,

SOCIAL SECURITY ADMINISTRATION1

MEMORANDUM OPINION

Abigail Price (“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. 5.2 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 July 23, 2018. (Tr. 11). In her

application, Plaintiff alleges being disabled due to ankylosing spondylitis, degenerative disc

1 Kilolo Kijakazi became Acting Commissioner of the Social Security Administration on July 9, 2021.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted as

the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last

sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

2 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. 14.

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

disease, osteo and regular arthritis, recovered bulimic, major depressive disorder, suicide ideology,

post-traumatic stress disorder (“PTSD”), and bipolar disorder. (Tr. 81, 250). Plaintiff alleged an

onset date of May 25, 2018. (Tr. 11, 81). This application was denied initially and again upon

reconsideration. (Tr. 150-153, 159-161). Thereafter, Plaintiff requested an administrative hearing,

and this hearing request was granted. (Tr. 163-172).

On November 13, 2019, the ALJ held an administrative hearing. (Tr. 31-78). At this

hearing, Plaintiff was present and was represented by Sherri A. McDonough. Id. Plaintiff and

Vocational Expert (“VE”) Elizabeth R. Clem testified at this hearing. Id. During this hearing,

Plaintiff testified she was forty-three (43) years old, which is defined as a “younger individual.”

See 20 C.F.R. § 416.963(c). (Tr. 35). The ALJ found Plaintiff had a least a high school education

and was able to communicate in English. (Tr. 22). At the hearing, Plaintiff testified, “I have some

college, about a semester of college in my background. I am a high school graduate as well.” (Tr.

36).

On January 21, 2020, after the administrative hearing, the ALJ entered a fully unfavorable

decision denying Plaintiff’s application. (Tr. 8-24). The ALJ determined Plaintiff had not engaged

in Substantial Gainful Activity (“SGA”) since July 23, 2018, her application date. (Tr. 13). The

ALJ determined Plaintiff had the following severe impairments: degenerative disc disease; history

of diverticulitis; fibromyalgia; obesity; status post bilateral foot fractures; PTSD; and bipolar

disorder. Id. Despite being severe, the ALJ 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. 14-16, Finding 3).

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

Residual Functional Capacity (“RFC”). (Tr. 16-21, Finding 4). 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 sedentary work as defined

in 20 C.F.R. 416.967(a) except the claimant can occasionally stoop, crouch, bend,

kneel, crawl, and balance; occasionally reach overhead; frequently finger and

handle; and occasionally use her lower extremities for foot controls and pedals.

The claimant can perform work that is simple, routine, and repetitive with

supervision that is simple, direct, and concrete. The claimant can occasionally

interact with co-workers, supervisors, and the public. The claimant requires a

workplace with access to restroom facilities.

(Tr. 16, Finding 4).

The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was unable

to perform any of her PRW. (Tr. 22, Finding 5). The ALJ then considered whether Plaintiff

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

economy. (Tr. 22-23, Finding 9). In making this determination, the ALJ relied upon the testimony

of the VE. Id. Specifically, the VE testified Plaintiff retained the capacity to perform work as a

machine tender (sedentary) with 180,000 jobs available in the national economy, and an assembler

(sedentary) with 150,000 jobs available in the national economy. (Tr. 23). Because Plaintiff

retained the capacity to perform this other work, the ALJ determined Plaintiff had not been under

a disability, as defined by the Act, from July 23, 2018, or through January 21, 2020, the date of his

decision. (Tr. 23, Finding 10).

Plaintiff requested the Appeal’s Council’s review of this unfavorable disability

determination. The Appeals Council denied this request on August 10, 2020. (Tr. 1-7).

Thereafter, on September 18, 2020, Plaintiff appealed her administrative case to this Court. ECF

No. 1. The parties consented to the jurisdiction of this Court on September 18, 2020. ECF No. 5.

Both Parties have filed their appeal briefs, and this matter is now ripe for consideration. ECF Nos.

16, 17.

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).

A claimant for Social Security disability benefits has the burden of proving her disability

by establishing a physical or mental disability that has lasted at least one year and that prevents

her from engaging in any substantial gainful activity. See Pearsall v. Massanari, 274 F.3d 1211,

1217 (8th Cir. 2001); see also 42 U.S.C. § 1382c(a)(3)(A). The Act defines “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. § 1382c(a)(3)(D). A Plaintiff must show that his or her disability, not

simply his or her impairment, has lasted for at least twelve consecutive months.

The Commissioner’s regulations require her to apply a five-step sequential evaluation

process to each claim for disability benefits: (1) whether the claimant has engaged in substantial

gainful activity since filing his or her claim; (2) whether the claimant has a severe physical and/or

mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal

an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past

relevant work; and, (5) whether the claimant is able to perform other work in the national economy

given his or her age, education, and experience. 20 C.F.R. § 416.920(a)(4). The fact finder only

considers Plaintiff’s age, education, and work experience in light of his or her residual functional

capacity if the final stage of the analysis is reached. 20 C.F.R. § 416.920(a)(4)(v).

3. Discussion:

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

erred in evaluating Plaintiff’s subjective complaints; and (2) the ALJ erred in assessing Plaintiff’s

RFC. ECF No. 16. Because the Court finds the ALJ erred in assessing her subjective complaints,

the Court will only address Plaintiff’s first argument for reversal.

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. § 416.929.3 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

3 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.

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 ALJ based his credibility determination almost entirely upon the fact that Plaintiff’s subjective

complaints were not supported by her medical records. (Tr. 17-21). In his opinion, the ALJ

summarized Plaintiff’s medical records and discounted Plaintiff’s subjective complaints because

they were not supported by the objective medical records. Indeed, in this opinion, the only non-

medical evidence the ALJ considered was Plaintiff’s daily activities. (Tr. 17-18). This involved

only a limited discussion of Plaintiff’s daily activities. Id.

Based upon this review, the Court finds the ALJ’s assessment of Plaintiff’s subjective

complaints 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 during the relevant time-period,

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 15th day of July 2021.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE