Smith v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

SERENA L. SMITH PLAINTIFF

vs. Civil No. 2:22-cv-02194

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION DEFENDANT

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Serena L. Smith (“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

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:

On December 4, 2019, Plaintiff protectively filed her disability application. (Tr. 11).1 In

this application, Plaintiff alleges being disabled due to sciatica, arthritis, bipolar disorder,

depression, panic attacks, IBS, hemorrhoids, and a bulging disc. (Tr. 228). Plaintiff alleges an

onset date of December 1, 2019. (Tr. 11). This application was denied initially on April 8, 2020,

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

page number.

1

and it was denied again on reconsideration on June 18, 2020. (Tr. 11).

Plaintiff had two administrative hearings. (Tr. 27-66). After the second administrative

hearing, the ALJ entered a fully unfavorable decision denying Plaintiff’s application. (Tr. 8-26).

This decision was entered on December 23, 2021. In this decision, the ALJ found Plaintiff had

not engaged in Substantial Gainful Activity (“SGA”) since December 4, 2019, her application

date. (Tr. 13, Finding 1). The ALJ found Plaintiff had the following severe impairments: right

hip pain, spondylolisthesis, degenerative joint disease of the bilateral knees, and bipolar disorder.

(Tr. 13-14, Finding 2). 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. 14-16, Finding 3).

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

Residual Functional Capacity (“RFC”). (Tr. 16-19, Finding 4). Specifically, the ALJ found

Plaintiff retained 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 416.967(b) except occasionally climb, balance, stoop, kneel, crouch, or crawl,

can perform work where tasks are detailed but not complex, e.g. grocery checker,

complexity of tasks is learned by experience, several variables, judgment within

limits, and supervision that is little for routine but detailed for non-routine.

Id.

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

to perform her PRW. (Tr. 19-20, Finding 5). The ALJ also determined whether Plaintiff retained

the capacity to perform other work existing in significant numbers in the national economy. (Tr.

20-21). The VE testified at the administrative hearing regarding this issue. Id. Based upon that

testimony, the ALJ found Plaintiff retained the capacity to perform the following unskilled, light

occupations: (1) office helper with approximately 50,000 such jobs in the national economy; (2)

sales attendant with approximately 250,000 such jobs in the national economy; and (3) garment

sorter with approximately 55,000 such jobs in the national economy. (Tr. 20-21). Because

Plaintiff retained the capacity to perform this other work, the ALJ determined Plaintiff had not

been under a disability, as defined by the Act, from December 4, 2019, through the date of his

decision or through December 29, 2021. (Tr. 21, Finding 10).

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

determination. On October 21, 2022, the Appeals Council declined to review the ALJ’s disability

determination. (Tr. 1-5). On December 21, 2022, Plaintiff filed the present appeal. ECF No. 1.

The Parties have filed appeal briefs. ECF Nos. 9, 14. 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

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 by failing to fully and fairly develop the record; (B) the ALJ erred at Step Two of the

4

sequential analysis; (C) the ALJ erred in assessing the credibility of her subjective complaints; and

(D) the ALJ erred in addressing her severe impairments. ECF No. 9 at 1-18. 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 the third issue for reversal.

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

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

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.

5

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 cursory manner:

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

functional capacity assessment, which is supported by the objective medical

evidence and other evidence in the record as a whole, as well as the persuasiveness

of the hearing testimony and the opinion evidence. In reaching the conclusion that

the claimant can perform work at the light exertion level with the additional

limitations, the undersigned has considered the functional limitations from all the

claimant’s medically determinable impairments, including any impairments that

are not severe. Furthermore, the undersigned has considered the claimant’s

subjective complaints and statements about the intensity, persistence, and limiting

effects of their symptoms 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 a methodical

fashion, the undersigned considered these factors relative to the limitations caused

by the claimant’s impairments. Accordingly, the undersigned finds the claimant has

the above residual functional capacity.

(Tr. 19).

6

Based upon this review, and in light of this limited assessment, 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 7th day of June 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

7