Furgerson v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

SARA FURGERSON PLAINTIFF

vs. Civil No. 6:22-cv-06080

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION DEFENDANT

MEMORANDUM OPINION

Sara Furgerson (“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 applications for

Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), and period of

disability under Titles II and XVI 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. 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 applications on July 22, 2020. (Tr. 804). In these

applications, Plaintiff alleges being disabled due to bipolar disorder, PTSD, depression, anxiety

disorder, panic disorder, knee problems, insomnia, degenerative disc disease, and high blood

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. 11. These

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

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pressure. (Tr. 1161). Plaintiff originally alleged an onset date of September 14, 2019, but she

later amended this alleged onset date to September 30, 2019. (Tr. 804). These applications were

denied initially on December 8, 2020, and these applications were denied again upon

reconsideration on March 16, 2021. Id.

After these denials, Plaintiff requested an administrative hearing, and this hearing request

was granted. (Tr. 826-866). Plaintiff’s administrative hearing was held on September 8, 2021,

and this hearing was held in Little Rock, Arkansas. Id. Plaintiff was present and was represented

by Tisha Martin at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Joyce Brumbaugh

testified at this hearing. Id.

On January 21, 2022, after the administrative hearing, the ALJ entered a fully unfavorable

denying Plaintiff’s applications. (Tr. 801-825). The ALJ found Plaintiff met the insured status

requirements of the Act through June 30, 2021. (Tr. 807, Finding 1). The ALJ determined Plaintiff

had not engaged in Substantial Gainful Activity (“SGA”) since September 30, 2019, her amended

alleged onset date. (Tr. 807, Finding 2). The ALJ determined Plaintiff had the following severe

impairments: degenerative joint disease status post total knee arthroplasty, degenerative disc

disease, morbid obesity, bipolar II disorder, and post-traumatic stress disorder and anxiety. (Tr.

808, 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 (“Listings”). (Tr. 808-811, Finding 5).

The ALJ determined Plaintiff was thirty-nine (39) years old on her alleged disability onset

date. (Tr. 816, Finding 7). Such an individual is defined as a “younger individual” under 20 C.F.R

§ 404.1563(c) and 20 C.F.R. § 416.963(c). (Tr. 816, Finding 7). The ALJ determined Plaintiff

had at least a high school education. (Tr. 816, Finding 8).

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

Residual Functional Capacity (“RFC”). (Tr. 811-816, 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 sedentary work. She can

occasionally use stairs, stoop, crouch, bend, kneel and crawl. Nonexertionally, the

claimant can perform tasks which are simple, routine and repetitive. These tasks

would be consistent with unskilled work as characterized in the Dictionary of

Occupational Titles (DOT). The claimant occasionally interact with coworkers,

supervisors and the public (20 CFR 404.1567(a) and 416.967(a)).

Id.

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

unable to perform any of her PRW. (Tr. 816, Finding 6). The ALJ then considered whether

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

economy. (Tr. 817, Finding 10). In making this determination, the ALJ relied upon the testimony

of the VE. Id. Based upon the VE’s testimony, the ALJ determined Plaintiff retained the capacity

to perform the following occupations: (1) document preparer (unskilled, sedentary) with

approximately 17,000 such jobs in the national economy; (2) addresser (unskilled, sedentary) with

approximately 2,100 such jobs in the national economy; and (3) surveillance system monitor

(unskilled, sedentary) with approximately 2,500 such jobs in the national economy. (Tr. 817).

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 September 30, 2019 through the date

of his decision or through January 21, 2022. (Tr. 817, Finding 11).

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

determination. On June 13, 2022, the Appeals Council declined to review the ALJ’s disability

determination. (Tr. 1-6). On July 15, 2022, Plaintiff filed the present appeal. ECF No. 1. The

Parties consented to the jurisdiction of this Court on July 18, 2022. 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).

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).

3. Discussion:

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

erred in assessing her impairments under the Listings; and (2) the ALJ erred in assessing her

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

subjective allegations and in assessing her RFC, the Court will only address Plaintiff’s second

argument 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.

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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

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.

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

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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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 discounted Plaintiff’s

subjective complains for the following reasons:

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. 812). Indeed, although the ALJ referenced “other evidence,” he did not provide what that

“other evidence” was, apart from Plaintiff’s medical records. The ALJ instead found the

following: “In regard to any other alleged disabling conditions and/or symptoms as alleged by the

claimant, there is no objective medical evidence from which to conclude the claimant has required

any more than intermittent evaluation and treatment at most.” (Tr. 815).

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

subjective allegations based upon her 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

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of her 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 27th day of March 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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