Elrod v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

LAURA A. ELROD PLAINTIFF

vs. Civil No. 5:22-cv-05222

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION DEFENDANT

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Laura A. Elrod (“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 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 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:

On July 30, 2018, Plaintiff protectively filed her disability application. (Tr. 151). 1 In this

application, Plaintiff alleges being disabled encephalopathy and cirrhosis of liver. (Tr. 392).

Plaintiff originally alleged an onset date of October 9, 2017. (Tr. 12). This 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. 13. These references are to the page number of the transcript itself not the ECF

page number.

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initially on November 9, 2018, and this application was denied again on reconsideration on

February 12, 2019. (Tr. 151).

Plaintiff had three administrative hearings. (Tr. 40-106). On March 24, 2022, after the

third administrative hearing, the ALJ entered a partially favorable decision denying Plaintiff’s

application in part. (Tr. 12-29). The ALJ found Plaintiff met the insured status requirements of

the Act through September 30, 2022. (Tr. 15, Finding 1). The ALJ determined Plaintiff had not

engaged in Substantial Gainful Activity (“SGA”) since October 19, 2017, her alleged disability

onset date. (Tr. 15, Finding 2).

The ALJ determined that, since her alleged onset date, Plaintiff had the following severe

impairments: chronic liver disease, hypertension, obesity and hepatic encephalopathy. (Tr. 15,

Finding 3). The ALJ determined that beginning on October 6, 2020, the established disability

onset date, the claimant has had the following severe impairments: chronic liver disease,

hypertension, obesity and hepatic encephalopathy, depression and anxiety. Id. 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. 16-17, Finding 4).

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

Residual Functional Capacity (“RFC”). (Tr. 17-23, Finding 5). Specifically, the ALJ found

Plaintiff retained the following RFC:

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

beginning on October 6, 2020, the claimant has the residual functional capacity to

perform sedentary exertional level except that the claimant cannot climb ropes,

ladders or scaffolds. She must avoid all exposure to moving machinery and

unprotected heights. She can occasionally climb stairs and ramps, balance,

craw[al], kneel, stoop and crouch. She must avoid moderate work where

interpersonal contact is incidental to the work performed, the complexity of the

tasks is learned and performed by rote with few by rote with few variables and little

judgment involved. Supervision required is simple, direct and concrete.

Id.

The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 26, Finding 7). The VE

testified at the administrative hearing regarding this issue. Id. Based upon that testimony, the ALJ

found that before October 6, 2020, Plaintiff retained the capacity to perform her PRW as a traffic

freight clerk and as a travel agent. (Tr. 26, Finding 7). The ALJ also considered whether there

was other work Plaintiff could perform during the relevant time period. (Tr. 26, Finding 7). Based

upon the VE’s testimony, the ALJ found Plaintiff retained the capacity to perform other work prior

to October 6, 2020. (Tr. 27, Finding 12). After October 6, 2020, however, the ALJ found Plaintiff

was unable to perform other work and was disabled. (Tr. 27, Finding 13).

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

determination. On August 24, 2022, the Appeals Council declined to review the ALJ’s disability

determination. (Tr. 1-6). On October 27, 2022, Plaintiff filed the present appeal. ECF No. 1. The

Parties have filed appeal briefs. ECF Nos. 17, 19. 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

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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 four arguments for reversal: (A) the ALJ

erred in failing to fully and fairly develop the record; (B) the ALJ erred at Steps Two and Three of

the sequential evaluation; (C) the ALJ erred in assessing the credibility of her subjective

complaints; and (D) the ALJ erred in assessing her RFC. ECF No. 17 at 1-20. Upon review,

because the Court finds the ALJ erred in assessing Plaintiff’s subjective allegations and in

assessing her RFC, the Court will only address this issue.

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.

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

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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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

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 in the following manner:

In reaching the conclusion that the claimant can perform work at the sedentary

exertional level with additional conditions, the undersigned has considered the

claimant’s subjective complaints of pain, the objective medical evidence, and any

evidence relating to the claimant’s daily activities; the duration, frequency, and

intensity of the claimant’s pain; the dosage and effectiveness of medication;

precipitating and aggravating factors; and functional restrictions. While these

factors have not been set forth in methodical fashion, they have been considered

relative to the limitations that the claimant’s impairments cause.

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(Tr. 23).

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

subjective allegations without properly considering the Polaski factors and 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 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 24th day of May 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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