# Sizemore v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · August 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10011287

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** August 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10011287

## How later opinions describe it (automated extraction)

- holding a claimant’s subjective complaints cannot be discounted “solely because the objective medical evidence does not fully support them [the subjective complaints]”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

HEATHER SIZEMORE PLAINTIFF

vs. Civil No. 2:20-cv-02196

COMMISSIONER, SOCIAL DEFENDANT
SECURITY ADMINISTRATION

MEMORANDUM OPINION

Heather Sizemore (“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 all
proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and
conducting all post-judgment proceedings. ECF No. 4.1 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 6, 2016. (Tr. 10). In this
application, Plaintiff alleges being disabled due to depression, anxiety, hypothyroidism,
Hashimoto’s disease, pseudo seizures, insomnia, and Vitamin D deficiency. (Tr. 188). Plaintiff

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

1
alleges an onset date of April 1, 2010. (Tr. 10). This application was denied initially and again
upon reconsideration. Id.
After these denials, Plaintiff requested an administrative hearing, and this hearing request
was granted. (Tr. 24-48). Plaintiff’s administrative hearing was held in Fort Smith, Arkansas on
February 8, 2018. Id. Plaintiff was present and was represented by counsel, David Harp, at this
hearing. Id. Plaintiff and Vocational Expert (“VE”) Montie Lumpkin testified at this hearing. Id.

On May 2, 2018, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s application. (Tr. 10-18). The ALJ determined Plaintiff last met the
insured status requirements of the Act on December 31, 2015. (Tr. 12, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) during the period
from her alleged onset date of April 1, 2010, through her date last insured of December 31, 2015.
(Tr. 12, Finding 2).
The ALJ determined that through her date last insured, Plaintiff had the following severe
impairments: dysfunction of the major joints, curvature of the spine, disorder of the thyroid gland
and pseudo-seizures. (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”). Specifically, the ALJ found Plaintiff retained the following
RFC:
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the residual functional capacity (RFC) to
perform less than the full range of light work as defined in 20 CFR 404.1567(b)
except the claimant is limited to lifting/carrying up to 20 pounds occasionally and up
2
to ten pounds frequently, sitting, standing or walking for approximately six hours per
eight hour workday, with normal breaks. The claimant is limited to pushing/pulling
as much as the claimant can lift/carry. The claimant is limited to avoiding even
moderate exposure [to] hazardous machinery and unprotected heights. The claimant
is limited to using a handheld assistive device for stability in cold weather.

Id.
The ALJ found Plaintiff was thirty-seven (37) years old, which is defined as a “younger
individual” under 20 C.F.R. § 404.1563(c) (2008). (Tr. 16, Finding 7). The ALJ determined
Plaintiff had at least a high school education and was able to communicate in English. (Tr. 16,
Finding 8).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was unable
to perform any PRW. (Tr. 16, Finding 6). The ALJ then considered whether Plaintiff retained the
capacity to perform other work existing in significant numbers in the national economy. (Tr. 16-
17, Finding 10). Plaintiff and the VE testified at the administrative hearing regarding this issue. Id.
Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform
work as a call-out operator (sedentary, unskilled) with 6,672 jobs in the nation; addressing clerk
(sedentary, unskilled) with 6,113 jobs in the nation; and tile table worker (sedentary, unskilled) with
2,892 jobs in the nation. (Tr. 17). 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, at any time from
April 1, 2010 (alleged onset date) through December 31, 2015 (date last insured). (Tr. 17, Finding
11).
Plaintiff requested the Appeals Council’s review of the ALJ unfavorable disability
determination. On September 10, 2018, the Appeals Council declined to review the ALJ’s disability
determination. (Tr. 1-3). On November 2, 2020, Plaintiff filed the present appeal. ECF No. 1. The
3
Parties consented to the jurisdiction of this Court on November 3, 2020. ECF No. 4. 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).

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

4
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 her appeal brief, Plaintiff raises the following two arguments for reversal: (1) the ALJ’s

RFC finding (including his evaluation of her subjective complaints) is inconsistent with the record;
and (2) the ALJ improperly evaluated the opinions of her treating physician. ECF No. 17 at 11-20.
Because the Court finds the ALJ erred in assessing Plaintiff’s subjective complaints, the Court will
only address her first 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
4
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 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

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.
6
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 subjective complaints. In his opinion, the ALJ merely summarized Plaintiff’s
medical records and discounted her subjective complaints because her medical records were not
consistent with those complaints: “The claimant’s symptoms are reasonably consistent with the

medical evidence and other evidence in the record. The medical evidence establishes dysfunction
of the major joints, curvature of the spine, disorder of the thyroid gland and pseudoseizures. For the
aforementioned reasons, the claimant is limited to less than the full range of light exertion, with
nonexertional limitations.” (Tr. 16) (emphasis added). Indeed, although the ALJ mentions “other
evidence in the record,” the ALJ does not specifically provide what “other evidence” (apart from
her medical evidence) was inconsistent with her subjective complaints.
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 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

7
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 2nd day of August 2021.

Barry A. Bryant
/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

8

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10011287. Public record. Not legal advice.