Richards v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

ERIC RICHARDS PLAINTIFF

vs. Civil No. 6:21-cv-06011

KILOLO KIJAKAZI, Acting Commissioner,1

Social Security Administration DEFENDANT

MEMORANDUM OPINION

Eric Richards (“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 a

period of disability and Disability Insurance Benefits (“DIB”) under Title II of the Act, 42 U.S.C.

§ 423(d)(1)(A). In this judicial review, the Court must determine whether there is substantial

evidence in the administrative record to support the Commissioner’s decision. See 42 U.S.C. §

405(g).

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 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. 13. These

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

1. Background:

Plaintiff protectively filed his disability application on July 20, 2018, alleging an onset date

of September 1, 2014. (Tr. 15, 46, 65). In his application, Plaintiff alleges being disabled due to

a fractured spine with degenerative disc disorder, anal dermatitis with bleeding, patella femoral

syndrome in both knees, missing cartilage, impinged left shoulder with limited movement, tinnitus

in both ears, sleep apnea, chronic ear infection in right ear, and major incontinence with bowels.

(Tr. 46, 65). His application was denied initially on April 29, 2019, and was denied again upon

reconsideration on July 18, 2019. (Tr. 106-108, 112-113). Plaintiff subsequently requested an

administrative hearing, and this hearing request was granted. (Tr. 114-121). Plaintiff’s

administrative hearing was held on August 10, 2020, via telephone in Little Rock, Arkansas. (Tr.

34-44). At this hearing, Plaintiff was present and represented by counsel. Id. Plaintiff and

Vocational Expert (“VE”), Dianne Smith, testified at this administrative hearing. (Tr. 34-44, 259).

On October 15, 2020, the ALJ entered a fully unfavorable decision denying Plaintiff’s

application. (Tr. 12-30). In this decision, the ALJ found Plaintiff met the insured status of the Act

through December 31, 2019. (Tr. 18, Finding 1). The ALJ also found Plaintiff had not engaged

in substantial gainful activity (“SGA”) since September 1, 2014, his alleged onset date. (Tr. 18,

Finding 2). The ALJ determined Plaintiff was forty-five (45) years old on his date last insured,

which is defined as a “younger person” under 20 C.F.R. § 404.1563(c) (2008). (Tr. 28, Finding

7). The ALJ also determined Plaintiff had at least a high school education. (Tr. 28, Finding 8).

The ALJ then determined Plaintiff had the following severe impairments: degenerative disc

disease, degenerative joint disease of the knees, shoulder, and foot, obstructive sleep apnea,

obesity, post-traumatic stress disorder (“PTSD”), and excoriation disorder. (Tr. 18, Finding 3).

Despite being severe, the ALJ determined those impairments did not meet or medically equal the

requirements of any of the Listing of Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

(Tr. 18, Finding 4).

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

Residual Functional Capacity (“RFC”). (Tr. 21-28, Finding 5). 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 to perform

sedentary work as defined in 20 CFR 404.1567(a) except he requires use of a cane

in the dominant upper extremity to ambulate away from the work station. He can

occasionally stoop and kneel. He cannot crouch or crawl. He cannot do overhead

reaching with the left upper extremity; cannot use foot controls with the left lower

extremity; and cannot climb. He can alternate between sitting and standing every

30 minutes. He is able to perform work where interpersonal contact is incidental

to the work performed (incidental defined as interpersonal contact, requiring a

limited degree of interaction, such as meeting and greeting the public, answering

simple questions, accepting payment, and making change). The complexity of

tasks can be learned by demonstration or repetition within 30 days, with few

variables, and little judgment. The supervision required is simple, direct, and

concrete.

Id.

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

unable to perform any of his PRW. (Tr. 28, Finding 6). The ALJ then considered whether Plaintiff

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

economy. (Tr. 28-29, Finding 10). Based on the testimony of the VE, the ALJ found Plaintiff

could perform the representative occupations of (1) document preparer with approximately 29,000

such jobs available in the national economy, and (2) table worker with approximately 8,800 such

jobs available in the national economy. Id.

Because Plaintiff retained the capacity to perform this other work existing in significant

numbers in the national economy, the ALJ determined Plaintiff had not been under a disability, as

defined by the Act, at any time from his alleged onset date of September 1, 2014, through the date

last insured of December 31, 2019. (Tr. 30, Finding 11).

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

determination. On December 7, 2020, the Appeals Council declined to review the ALJ’s disability

determination. (Tr. 1-6). On January 22, 2021, Plaintiff filed the present appeal. ECF No. 1. The

Parties consented to the jurisdiction of this Court on January 22, 2021. ECF No. 5. 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). 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). A claimant 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. She 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 (2003).

3. Discussion:

In his appeal brief, Plaintiff raises the following four arguments for reversal: (1) whether

the ALJ properly evaluated Plaintiff’s subjective allegations; (2) whether the ALJ erred in finding

Plaintiff’s impairments did not meet or equal a Listing; (3) whether substantial evidence supports

the ALJ’s RFC determination; and (4) whether substantial evidence supports the ALJ’s Step Five

finding. ECF No. 15. Because the Court finds the ALJ erred in assessing Plaintiff’s subjective

allegations, the Court will only address this issue for reversal.

The Court notes that in assessing the subjective allegations 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 pain; (3) the precipitating and aggravating factors; (4) the

dosage, effectiveness, and side effects of medication; and (5) the functional restrictions. See

Polaski, 739 F.2d at 1322.

The factors must be analyzed and considered in light of the claimant’s subjective

allegations 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

allegations. 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

allegations are not entirely reliable, the ALJ’s determination of subjective allegations 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 allegations “solely because the objective medical evidence does not

fully support them [the subjective allegations].” Polaski, 739 F.2d at 1322.

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.

When discounting a claimant’s subjective allegations of pain, the ALJ must make a specific

determination regarding that claimant’s subjective allegations, 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 subjective allegations. 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:

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 this decision.

(Tr. 22).

Indeed, in this opinion, the only non-medical evidence the ALJ considered was Plaintiff’s

daily activities. Id. Further, the ALJ’s consideration involved only a limited discussion of

Plaintiff’s daily activities. Id.

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

subjective allegations based upon his medical records. See Polaski, 739 F.2d at 1322 (holding a

claimant’s subjective allegations cannot be discounted “solely because the objective medical

evidence does not fully support them [the subjective allegations]”). Accordingly, because the ALJ

provided an insufficient basis for discounting Plaintiff’s subjective allegations, this case must be

reversed and remanded.

4. Conclusion:

Based on the foregoing, the undersigned finds the ALJ’s RFC determination and analysis

of his subjective allegations 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 11th day of July 2022.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE