Payne v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

CARL JOSEPH PAYNE PLAINTIFF

vs. Civil No. 2:19-cv-02149-PKH-MEF

ANDREW M. SAUL, Commissioner, DEFENDANT

Social Security Administration

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, Carl Joseph Payne, brings this action pursuant to 42 U.S.C. § 405(g), seeking

judicial review of a decision of the Commissioner of Social Security Administration (the

“Commissioner”) denying his claim for a period of disability, disability insurance benefits

(“DIB”), and supplemental security income (“SSI”) benefits under Titles II and XVI of the Social

Security Act (hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial

review, the Court must determine whether there is substantial evidence in the administrative record

to support the Commissioner’s decision. 42 U.S.C. § 405(g).

I. Procedural Background

Plaintiff protectively filed his current applications for DIB and SSI on July 7, 2016. (ECF

No. 11, p. 48). Plaintiff alleges disability since April 13, 2016, due to a broken back, nerve

damage, difficulty voiding, balance issues, post-traumatic stress disorder (PTSD), depression, and

anxiety. (Id., pp. 48, 261).

Plaintiff’s applications were denied initially and upon reconsideration. (Id., pp. 48, 150-

56, 161-66). An administrative hearing was held on January 3, 2019, before the Hon. Edward M.

Starr, Administrative Law Judge (“ALJ”). (Id., pp. 17-44). Plaintiff was represented by counsel,

Russell Harper. (Id.). Plaintiff and a vocational expert (“VE”), Larry Seifert, testified at the

hearing. (Id.).

By written decision dated February 4, 2019, the ALJ found Plaintiff had the following

severe impairments: back injury, anxiety/trauma related, and affective disorder. (Id., pp. 45, 50).

The ALJ next determined that Plaintiff does not have an impairment or combination of

impairments that meets or medically equals the severity of any impairment in the Listing of

Impairments. (Id., pp. 50-52). The ALJ concluded that Plaintiff retained the residual functional

capacity (“RFC”) to:

“[P]erform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a),

except he can never climb ropes, ladders or scaffolds and no hazards, including

unprotected heights and moving machinery, occasionally climb ramps and stairs,

balance, crawl, kneel, sto[o]p, crouch and is limited to simple routine, repetitive

tasks in a setting where interpersonal contact is incidental to work performed and

he can respond to supervision that is simple, direct and concrete.”

(Id., pp. 52-57).

The ALJ found that Plaintiff was unable to perform any of his past relevant work (“PRW”),

but with the assistance of the VE the ALJ determined Plaintiff could perform the requirements of

the representative occupations of: eyeglass frame polisher (DOT # 713.684-038), with 6,436 jobs

in the national economy; printed circuit board checker (DOT # 726.684-110), with 2,000 jobs in

the national economy; and, nut sorter (DOT # 521.687-086), with 4,177 jobs in the national

economy. (Id., pp. 57-58). The ALJ concluded that Plaintiff had not been under a disability as

defined by the Act during the relevant period. (Id., p. 59).

Plaintiff subsequently filed this action on November 26, 2019. (ECF No. 2). This matter

is before the undersigned for report and recommendation. Both parties have filed appeal briefs

(ECF Nos. 16, 17), and the case is ready for decision.

II. Applicable Law

This Court’s role is to determine whether substantial evidence supports the

Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial

evidence is less than a preponderance, but it is enough that a reasonable mind would find it

adequate to support the Commissioner’s decision. Biestek Berryhill, 139 S.Ct. 1148, 1154 (2019).

We must affirm the ALJ’s decision if the record contains substantial evidence to support it.

Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477

(8th Cir. 2015). In other words, 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, we must

affirm the ALJ’s decision. Id.

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

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

him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217

(8th Cir. 2001); see also 42 U.S.C. §§ 423(d)(1)(A), 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. §§ 423(d)(3), 1382c(a)(3)(D). A Plaintiff must show

that his disability, not simply his impairment, has lasted for at least twelve consecutive months.

The Commissioner’s regulations require him 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 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 age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Only

if he reaches the final stage does the fact finder consider the Plaintiff’s age, education, and work

experience in light of his residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,

1141-42 (8th Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th

Cir. 2000); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

III. Discussion

Plaintiff raises the following issues in this appeal: (1) whether the ALJ’s RFC

determination is inconsistent with the record; (2) whether the ALJ properly evaluated his

subjective complaints; and, (3) whether Plaintiff would be unable to perform the jobs identified at

Step Five. (ECF No. 16, pp. 13-18). After a thorough review of the record, the undersigned agrees

that the ALJ’s RFC assessment is not supported by substantial evidence.

Part of the RFC determination includes an assessment of the claimant’s credibility

regarding subjective complaints of symptoms. Using the Polaski factors, “[s]ubjective complaints

may be discounted if there are inconsistencies in the evidence as a whole.” Polaski v. Heckler,

739 F.2d 1320, 1322 (8th Cir. 1984); see also Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000)

(noting Polaski factors must be considered before discounting subjective complaints). In addition

to the claimant’s prior work record, the Polaski factors include (1) the claimant’s daily activities;

(2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4)

dosage, effectiveness, and side effects of medication; and, (5) functional restrictions. Polaski, 739

F.2d at 1322; see also 20 C.F.R. §§ 404.1529, 416.929.

In this case, the ALJ erred in his consideration of the fourth Polaski factor. The ALJ stated

that in making his findings he considered Plaintiff’s subjective complaints of pain, the objective

medical evidence, and any evidence relating to Plaintiff’s daily activities; the duration, frequency,

and intensity of Plaintiff’s pain; the dosage and effectiveness of medication; precipitating and

aggravating factors; and, functional restrictions, and he cited Polaski and 20 C.F.R. § 416.927 and

SSR 96-7p. (Id., p. 57). An examination of the record, however, reveals that to the extent the ALJ

discussed the Polaski factors he cited evidence that contradicted the statements they were meant

to support.

The ALJ explicitly found Plaintiff’s pain appeared to be well controlled with prescription

medications, and that Plaintiff stated he had no side effects from the medication. (Id. p. 55). The

ALJ cited only to Plaintiff’s pain and function reports to support this finding. (Id., pp. 279-80,

283, 297, 302, 304, 305-306, 318-19). These reports, however, did not show Plaintiff’s pain was

well controlled by medication and showed he had discontinued medication due to side effects.

(Id.). Plaintiff described his pain as constant, and he either listed no medications or stated he had

to discontinue the use of Lyrica due to side effects. (Id.). Plaintiff’s testimony at the administrative

hearing was that he was in constant pain and although several doctors had tried several different

medications for his bilateral lower extremity pain, “nothing touches it.” (Id., p. 28, 34, 35).

Plaintiff also testified that he quit taking pain medications because they did not really help with

the pain and made him feel sick. (Id., p. 33). Additionally, the Plaintiff’s two visits to the

emergency department in February and May of 2018 for bilateral lower extremity pain do not

support the ALJ’s assertion that his pain was well controlled by prescription medication. (Id., pp.

34, 55, 586-87, 590-97).

Considering the evidence as a whole, the undersigned concludes that the ALJ has not

properly evaluated Plaintiff’s credibility consistent with the Polaski and SSR 96–7P factors, and

remand is required. On remand, the ALJ should expressly acknowledge the Polaski and SSR 96–

7P factors and give specific reasons, supported by the record, for discrediting any of Plaintiff’s

subjective complaints.

The undersigned acknowledges that the ALJ’s decision may be the same after proper

analysis. Nonetheless, proper analysis must occur. Groeper v. Sullivan, 932 F.2d 1234, 1239 (8th

Cir. 1991).

IV. Conclusion

Based on the foregoing, it is recommended that the Commissioner’s final decision be

reversed, and the case remanded back to the Commissioner for further consideration pursuant to

sentence four of 42 U.S.C. § 405(g).

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. We remind the parties

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

Court.

DATED this 2nd day of October 2020.

/s/ Mark E. Ford

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE