# Gossett v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · June 1, 2023

URL: https://www.frixlaw.com/law-library/cases/10632704

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** June 1, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10632704

## 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
FORT SMITH DIVISION

HEATHER NICOLE GOSSETT PLAINTIFF

vs. Civil No. 2:22-cv-02139

KILOLO KIJAKAZI DEFENDANT
Acting Commissioner, Social Security Administration

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE

Heather Nicole Gossett, (“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 Supplemental Security Income (“SSI”) under Title XVI
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 August 16, 2018. (Tr. 11). Plaintiff alleged
disability due to degenerative bone disease in left knee and osteoarthritis. (Tr. 164). Plaintiff’s
application was denied initially and again upon reconsideration. (Tr. 11).
Plaintiff requested an administrative hearing on her denied application, and this hearing
request was granted. (Tr. 82-98, 104-132). A hearing was held on June 3, 2020. (Tr. 28-52). At
this hearing, Plaintiff was present and represented by counsel, Laura McKinnon. Id. Plaintiff and
Vocational Expert, (“VE”) Jim Spragins testified at this hearing. Id.
On July 14, 2021, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s disability application. (Tr. 11-22). The ALJ determined Plaintiff had

not engaged in Substantial Gainful Activity (“SGA”) since August 16, 2018. (Tr. 14, Finding 1).
The ALJ then determined Plaintiff had the following severe impairments: anxiety, depression,
post-traumatic stress disorder, pain disorder, borderline intelligence, obesity, and left knee
osteoarthritis. (Tr. 14, Finding 2). 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. 15,
Finding 3).
In this decision, the ALJ determined her Residual Functional Capacity (“RFC”). (Tr. 17-
21, Finding 4). The ALJ determined Plaintiff had the RFC to perform sedentary work except could
only occasionally climb ramps or stairs; never climb ladders, ropes, or scaffolds; and only

occasionally balance, stoop, kneel, crouch, or crawl; needs to use a cane to ambulate; limited to
simple, routine, and repetitive tasks, involving only simple work-related decisions, with few, if
any, workplace changes, and no more than incidental contact with co-workers, supervisors, and
the general public. Id.
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 21, Finding 5). The
ALJ determined Plaintiff was unable to perform her PRW. Id. However, the ALJ found there
were jobs in the significant numbers in the national economy that Plaintiff could perform. (Tr. 21-
22, Finding 9). With the help of the VE, the ALJ found Plaintiff could perform the representative
occupations of (1) cutter/paster with approximately 11,000 jobs in the nation, (2) toy stuffing
machine operator with approximately 6,200 jobs in the nation, and (3) eyeglass frame polisher
with approximately 1,800 jobs in the nation. Id. Based upon this finding, the ALJ determined
Plaintiff had not been disabled at any time since August 16, 2018. (Tr. 22, Finding 10).

Plaintiff sought review with the Appeals Council. (Tr. 1-5). The Appeals Council denied
this request. Id. On August 26, 2022, Plaintiff filed a Complaint in this case. ECF No. 1. Both
Parties have filed appeal briefs. ECF Nos. 13, 17. 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
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 her appeal brief, Plaintiff claims the ALJ’s decision is not supported by substantial
evidence in the record. ECF No. 13, Pgs. 5-14. Specifically, Plaintiff raises the following
arguments for reversal: (1) the ALJ failed to fully and fairly develop the record, (2) the ALJ erred
in considering her subjective complaints of pain, and (3) the ALJ erred in the RFC determination.
Id. Upon review, the Court finds the ALJ did not fully consider her subjective complaints when
evaluating his disability. Accordingly, 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
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.

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.
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. 18-22). 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, the undersigned finds 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. 18).
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 1st day of June 2023.

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/10632704. Public record. Not legal advice.