# Horton v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · February 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10632257

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** February 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10632257

## How later opinions describe it (automated extraction)

- holding a claimant’s subjective complaints cannot be discounted “solely because the objective medical evidence does not fully support them [the subjective complaints]”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

REGINA HORTON PLAINTIFF

vs. Civil No. 3:20-cv-03081

KILOLO KIJAKAZI DEFENDANT
Commissioner, Social Security Administration

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE

Regina Horton (“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 a
period of disability and Disability Income Benefits (“DIB”) under Title II of the Act.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Timothy
L. Brooks 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 October 30, 2018. (Tr. 15). Plaintiff alleged
disability due to fibromyalgia, herniated and bulging disc in neck and back, migraines, thyroid,
high blood pressure, high cholesterol, asthma, chronic arthritis, and chronic pain. (Tr. 195).1 Her
application was denied initially and again upon reconsideration. (Tr. 15).

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. 15.
These references are to the page number of the transcript itself and not the ECF page number.
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Plaintiff requested an administrative hearing on her denied application, and this hearing
request was granted. (Tr. 104-154). This hearing was held on May 5, 2020. (Tr. 31-62). At this
hearing, Plaintiff was present and represented by counsel, Kimberly McDonald. Id. Plaintiff and
Vocational Expert, (“VE”) Stacy McKisick testified at this hearing. Id.

On June 8, 2020, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s disability application. (Tr. 15-26). In his decision, the ALJ
determined Plaintiff last met the insured status requirements of the Act on September 30, 2018.
(Tr. 17, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since September 1, 2018. (Tr. 18, Finding 2).
The ALJ then determined Plaintiff had the following severe impairments: degenerative disc
disease of lumbar and cervical spine, spondylosis, lumbar radiculopathy, sacroiliitis, fibromyalgia,
headache, obesity, and degenerative joint disease of the right hip. (Tr. 18, 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. 18, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her
Residual Functional Capacity (“RFC”). (Tr. 18-24, Finding 5). First, the ALJ indicated he
evaluated Plaintiff’s subjective complaints and found they were not entirely credible. Id. Second,
the ALJ determined Plaintiff had the RFC to perform light work except was limited to frequently
reaching overhead; never climbing ropes, ladders, or scaffolds; and could occasionally tolerate
vibration. Id.

2
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was
capable of performing her PRW as a day care teacher. (Tr. 24-25, Finding 6). In accordance with
this finding, the ALJ determined Plaintiff was not under a disability, as defined by the Act, at any
time from her alleged onset date of September 1, 2018, through the date last insured of September

30, 2018. (Tr. 25, Finding 7).
Plaintiff sought review with the Appeals Council. (Tr. 1-7). The Appeals Council denied
this request. Id. On December 30, 2020, Plaintiff filed a Complaint in this case. ECF No. 1. Both
Parties have filed appeal briefs. ECF Nos. 21, 22. This matter is now ripe for consideration.
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
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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).

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3. Discussion:
In her appeal brief, Plaintiff claims the ALJ’s decision is not supported by substantial

evidence in the record. ECF No. 21 at 5-9. Specifically, Plaintiff raises the following arguments
for reversal: (1) the ALJ erred in considering her subjective complaints of pain and (2) the ALJ
erred in considering the opinions of the non-examining State Agency Physicians. Id. Upon review,
the Court finds the ALJ did not fully consider her subjective complaints when evaluating her
disability during the relevant time-period. According, the Court will only address this issue 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

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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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
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 his credibility determination almost entirely upon the fact that Plaintiff’s subjective
complaints were not supported by her medical records. (Tr. 18-24). 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, I find 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. 20).
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Based upon this review, the Court finds the ALJ’s assessment of Plaintiff’s subjective
complaints was improper. 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 during the relevant time-period,
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 25th day of February 2022.

Barry A. Bryant
/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632257. Public record. Not legal advice.