Dixon v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

JEFF A. DIXON PLAINTIFF

vs. Civil No. 2:16-cv-02186

NANCY A. BERRYHILL DEFENDANT

Acting Commissioner, Social Security Administration

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Jeff A. Dixon (“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

Disability Insurance Benefits (“DIB”) and a period of disability under Title II of the Act.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable P. K.

Holmes, III referred this case to this Court for the purpose of making a report and recommendation.

In accordance with that referral, and after reviewing the arguments in this case, this Court

recommends Plaintiff’s case be REVERSED AND REMANDED.

1. Background:

Plaintiff protectively filed his disability application on May 15, 2013. (Tr. 13, 135-138). In

his application, Plaintiff alleges being disabled due to right elbow synovitis, right wrist arthritis, left

arm pain, and neck pain. (Tr. 170). Plaintiff alleges an onset date of April 30, 2012. (Tr. 13). This

application was denied initially and again upon reconsideration. (Tr. 63-82).

Plaintiff requested an administrative hearing on his denied application, and this hearing

request was granted. (Tr. 25-47, 91-92). Plaintiff’s administrative hearing was held on October 29,

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2014 in Fort Smith, Arkansas. Id. At this hearing, Plaintiff was present and was represented by

Kristopher Ramsfield. Id. Plaintiff and Vocational Expert (“VE”) Larry Seifert testified at this

hearing. Id.

On May 6, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s application.

(Tr. 10-20). In this decision, the ALJ found Plaintiff met the insured status requirements of the Act

through December 31, 2017. (Tr. 15, Finding 1). The ALJ determined Plaintiff had not engaged in

Substantial Gainful Activity (“SGA”) since April 30, 2012, his alleged onset date. (Tr. 15, Finding

2). The ALJ found Plaintiff had the following severe impairments: status post left biceps tendon

rupture and repair; degenerative disc disease of the cervical spine; osteoarthritis of the right elbow;

and osteoarthritis of the bilateral wrists. (Tr. 15, Finding 3). Despite being severe, the ALJ

determined those impairments did not meet or medically equal the requirements of any of the

Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 15-16,

Finding 4).

In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.

(Tr. 16-19, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found his

claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained

the RFC to perform the following:

After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform the full range of sedentary

work as defined in 20 CFR 404.1567(a).

Id.

The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 19-20, Finding 6).

Specifically, the ALJ determined Plaintiff’s PRW included work as a checker II. Id. Considering

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his RFC, the ALJ found Plaintiff retained the capacity to perform this PRW. Id. As such, because

Plaintiff retained the capacity to perform his PRW, the ALJ determined Plaintiff had not been under

a disability, as defined by the Act, from April 30, 2012 through the date of the ALJ’s decision or

through May 6, 2015. (Tr. 20, Finding 7).

Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable

decision. (Tr. 7). On June 15, 2016, the Appeals Council denied this request for review. (Tr. 1-3).

On August 4, 2016, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal

briefs. ECF Nos. 10-11. 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

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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 his appeal brief, Plaintiff raises the following two arguments for reversal: (1) the ALJ erred

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in his RFC determination; and (2) the ALJ erred in relying on the testimony of the VE. ECF No. 10

at 1-15. Upon review, the Court finds the ALJ improperly evaluated Plaintiff’s subjective

complaints. Thus, the Court will only evaluate 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. § 416.929.1 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

1 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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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 perform a Polaski evaluation. Instead of evaluating the

Polaski factors outlined above and providing valid reasons for discounting Plaintiff’s subjective

complaints, the ALJ instead focused on Plaintiff’s medical records and discounted his subjective

complaints because they were not supported by those records. Indeed, the ALJ emphasized “[t]he

medical evidence of record does not entirely support the credibility of claimant’s allegations

regarding his impairment. The objective medical findings reveal some limitations, but not to the

extent alleged by the claimant.” (Tr. 18).

The ALJ’s decision to discount Plaintiff’s subjective complaints because the medical

evidence did not support those allegations was entirely improper under Polaski. See Polaski, 739

F.2d at 1322 (recognizing the ALJ cannot discount a claimant’s subjective complaints “solely

because the objective medical evidence does not fully support them [the subjective complaints]”).

Thus, because the ALJ did not comply with the requirements of Polaski, this case must be reversed

and remanded.2

2 This Court recommends this case be reversed and remanded only for the purpose of fully

considering the Polaski factors and supplying valid reasons for discounting Plaintiff’s subjective

complaints. This Report and Recommendation should not be interpreted as requiring Plaintiff be

awarded disability benefits upon remand.

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4. Conclusion:

Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits

to Plaintiff, is not supported by substantial evidence and recommends that it be REVERSED AND

REMANDED.

The Parties have fourteen (14) days from receipt of this Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The Parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).

ENTERED this 2nd day of January 2018.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

U.S. MAGISTRATE JUDGE