Morris v. Social Security Administration Commissioner, No. 3:2014cv03059 - Document 12 (W.D. Ark. 2015)
Court Description: MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 26, 2015. (jn)
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Morris v. Social Security Administration Commissioner Doc. 12 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION DARREN D. MORRIS PLAINTIFF vs. Civil No. 3:14-cv-03059 CAROLYN W. COLVIN Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION Darren Morris (“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 his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act. The Parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 7.1 Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter. 1. Background: Plaintiff protectively filed his disability applications on March 11, 2011. (Tr. 11, 141-154). In his applications, Plaintiff alleges being disabled due to a nerve injury, diabetes, depression, knee and leg problems, and circulation problems. (Tr. 196). Plaintiff alleged an onset date of November 30, 2009. (Tr. 11, 155, 196). These applications were denied initially and again upon 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.” 1 Dockets.Justia.com reconsideration. (Tr. 11, 76-82, 89-93). Thereafter, Plaintiff requested an administrative hearing on his denied applications, and this hearing request was granted. (Tr. 94-96). On January 8, 2013, the ALJ held an administrative hearing to address Plaintiff’s applications. (Tr. 30-71). Plaintiff was present at this hearing and was represented by counsel, Frederick Spencer. Id. Plaintiff and Vocational Expert (“VE”) Jim Spragins testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-three (43) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c), and had an eighth grade education. (Tr. 36). After this hearing, on March 1, 2013, the ALJ entered an unfavorable decision denying Plaintiff’s application for DIB and SSI. (Tr. 11-24). In this decision, the ALJ found Plaintiff met the insured status of the Act through March 1, 2013. (Tr. 14, Finding 2). The ALJ also found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) for a continuous 12 month period. (Tr. 15, Finding 4). The ALJ determined Plaintiff had the following severe impairments: degenerative joint disease of the cervical spine, hypertension, insulin dependent diabetes mellitus with neuropathy, and mood disorder. (Tr. 15, Finding 5). However, the ALJ also determined Plaintiff’s impairments did not meet or medically equal the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 16, Finding 6). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC. (Tr. 19-22, Finding7). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found his claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC to perform light work except he can use his dominant right upper extremity frequently, but not repetitively, and can only do work with simple tasks and simple instructions. Id. 2 The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was able to perform his PRW as an office helper and mail clerk. (Tr. 23, Finding 8). Based upon this finding, the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from November 30, 2009 through the date of his decision. (Tr. 23, Finding 9). Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable decision. (Tr. 5). On April 8, 2014, the Appeals Council denied this request for review. (Tr. 1-4). Plaintiff then filed the present appeal on June 2, 2014. ECF No. 1. The Parties consented to the jurisdiction of this Court on June 10, 2014. ECF No. 7. Both Parties have filed appeal briefs. ECF Nos. 10, 11. 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) (2006); 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 3 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 his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by substantial evidence in the record. ECF No. 10, Pg. 9-13. Specifically, Plaintiff claims the ALJ 4 erred (1) in the credibility determination of Plaintiff, and (2) in dismissing the opinions of the consultative physician’s opinions. Id. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 11. Because this Court finds the ALJ erred in the credibility determination of Plaintiff, this Court will only address this issue. 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. § 416.929.2 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 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 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 [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). Plaintiff argues the ALJ erred in failing to consider the side effects of his medication as part of the credibility determination. This Court agrees the ALJ failed to consider Plaintiff’s medication side effects. The ALJ must properly consider the claimant’s testimony regarding significant medication side effects. Porch v. Chater, 115 F.3d 567, 572 (8th Cir. 1997). This requires an express examination of the dosage, effectiveness, and side effects of all medication. Polaski, 739 F. 2d at 1322. Failure to include medication side effects in the hypothetical to the VE, “at a minimum,” requires the case to be remanded. Mitchell v. Sullivan, 925 F.2d 247, 250 (8th Cir. 1991). Regarding Plaintiff’s medication side effects, he testified he took Metformin which caused him stomach problems, specifically constipation. (Tr. 55-56). Plaintiff also stated he used Flexeril and Tramadol which made him dizzy, tired, caused dry mouth and caused difficulty swallowing. Id. Plaintiff also used Metropolol which made him “real tired.” (Tr. 56). On remand, the ALJ is directed to expressly evaluate each of the Polaski credibility factors as to Plaintiff’s impairments. Specifically the ALJ shall evaluate and determine what drugs Plaintiff is currently taking and to consider the side effects of those medications. Once this is completed, any 6 changes that might result in his overall RFC must be addressed to the VE, either in person or by interrogatory. 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 should be reversed and remanded. A judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58. ENTERED this 26th day of May 2015. /s/ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE 7
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