Geren v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

SUE E. GEREN PLAINTIFF

vs. Civil No. 2:21-cv-02116

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION DEFENDANT

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Sue E. Geren (“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

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 filed her disability application on July 14, 2018, alleging a disability beginning on

June 17, 2018. (Tr. 19).1 In her application, Plaintiff alleges being disabled due to blindness or

“low vision,” depression, anxiety, and a right wrist injury. (Tr. 269). Her application was denied

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. 8. These

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

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initially on January 3, 2019, and her application was denied again upon consideration on June 6,

2019. (Tr. 19).

Plaintiff requested an administrative hearing, and this hearing request was granted. (Tr. 100-

139). This hearing was held in Fort Smith, Arkansas on August 5, 2020. Id. At this hearing,

Plaintiff was present and was represented by Michael Hamby. Id. Plaintiff and Vocational Expert

(“VE”) Marquita Miller testified at this hearing. Id.

On October 21, 2020, after the administrative hearing, the ALJ entered an unfavorable

decision denying Plaintiff’s DIB application. (Tr. 16-33). In this decision, the ALJ found Plaintiff

met the insured status requirements of the Act through September 30, 2022. (Tr. 21, Finding 1).

The ALJ found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since her alleged

onset date of June 17, 2018. (Tr. 21-22, Finding 2).

The ALJ determined Plaintiff had the following severe impairments: right eye vision loss,

retinal edema, inflammation of choroid, panuveitis, depression, PTSD, migraines, fibromyalgia, and

obesity. (Tr. 22, Finding 3). The ALJ also determined Plaintiff did not have an impairment or

combination of impairments that met or medically equaled the requirements of any of the Listings

of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 22-24, Finding

4).

The ALJ determined Plaintiff was thirty-nine (39) years old, which is defined as a “younger

person” under 20 C.F.R. § 404.1563(c), on her date last insured. (Tr. 28, Finding 7). As for her

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

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

Residual Functional Capacity (“RFC”). (Tr. 24-27, Finding 5). First, the ALJ evaluated Plaintiff’s

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subjective complaints and found they were not entirely valid. Id. Second, the ALJ determined

Plaintiff had the following RFC:

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

claimant has the residual functional capacity to perform light work as defined in 20

CFR 404.1567(b) except the claimant can occasionally climb ramps and stairs,

balance, stoop, kneel, crouch, and crawl. The claimant must avoid hazards such as

motor vehicles, no ladders, ropes, or scaffolds, and moving mechanical parts. Due

to vision loss in the right eye, nothing comes from the right side. The claimant can

perform simple, routine, repetitive tasks with supervision that is simple, direct, and

concrete, and social interaction that is incidental to the work performed.

Id.

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

unable to perform any of her PRW. (Tr. 27-28, 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). The VE testified at the administrative hearing regarding this

issue. Id. Based upon that testimony, the ALJ determined a hypothetical person with Plaintiff’s

limitations retained the capacity to work as a marker (light, unskilled) with 120,000 such jobs

nationally; housekeeping cleaner (light, unskilled) with 200,000 such jobs nationally; and a routing

clerk (light, unskilled) with 90,000 such jobs nationally. (Tr. 28). In accordance with this finding,

the ALJ determined Plaintiff was not under a disability, as defined by the Act, at any time from June

17, 2018, her alleged onset date, through the date of her decision or through October 21, 2020. (Tr.

29, Finding 11).

Plaintiff sought review with the Appeals Council. (Tr. 1-10). On June 21, 2021, the Appeals

Council denied this request for review. Id. On June 23, 2021, Plaintiff filed a Complaint in this

case. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 10-11. This matter is now ripe

for consideration.

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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 wouldhave

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

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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:

With her appeal brief, Plaintiff raises one claim for reversal: The ALJ’s decision is not

supported by substantial evidence as it relates to the Plaintiff’s physical limitations as set forth in

the Step Four and Five Analysis of her RFC. ECF No. 10. Upon review of this claim, the Court

finds the ALJ’s Step Four evaluation and her evaluation of Plaintiff’s subjective complaints is not

supported by substantial evidence in the record; thus, the Court will only consider this issue.

In assessing the subjective complaints 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. § 416.929.2 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to

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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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 valid, the ALJ’s 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

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 comply with the requirements of Polaski. Instead, the

ALJ based her evaluation of Plaintiff’s subjective complaints upon the fact Plaintiff’s subjective

complaints were not supported by her medical records. (Tr. 24-27). In her opinion, the ALJ

summarized Plaintiff’s medical records and discounted Plaintiff’s subjective complaints because

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they were not supported by the objective medical records:

Based on the foregoing, the undersigned fins the claimant has the above residual

functional capacity assessment, which is supported by the objective evidence and the

medical findings established in the record. To the extent that the claimant alleged

being unable to work within the residual functional capacity, the undersigned finds

the allegations no fully consistent with the evidence based upon the above

discussions.

(Tr. 27).

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

based upon her medical records. 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 that the decision of the ALJ, denying benefits

to Plaintiff, is not supported by substantial evidence and recommends 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 21st day of January 2022.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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