Crosby v. Social Security Administration Commissioner, No. 6:2016cv06092 - Document 13 (W.D. Ark. 2017)

Court Description: MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on August 18, 2017. (hnc)
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Crosby v. Social Security Administration Commissioner Doc. 13 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION PAMELA A. CROSBY vs. PLAINTIFF Civil No. 6:16-cv-06092 NANCY A. BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION Pamela A. Crosby (“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 applications for Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and a period of disability 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. 5.1 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 her disability applications on February 10, 2014. (Tr. 11). In her applications, Plaintiff alleges being disabled due to anxiety, depression, “early warning signs of COPD,” arthritis, social anxiety, possible bipolar disorder, chronic foot pain, chronic back pain, obesity, and paranoia. (Tr. 203). Plaintiff alleges an onset date of May 14, 2010. (Tr. 11). These 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 applications were denied initially and again upon reconsideration. (Tr. 67-103). Thereafter, Plaintiff requested an administrative hearing on September 24, 2014. (Tr. 131). The ALJ granted that request and held an administrative hearing on July 14, 2015 in Hot Springs, Arkansas. (Tr. 27-66). At this hearing, Plaintiff was present and was represented by counsel. Id. Plaintiff and Vocational Expert (“VE”) Diane Smith testified at this hearing. Id. At this hearing, Plaintiff testified she was thirty-five (35) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c) (DIB) and 20 C.F.R. § 416.965(c) (SSI). (Tr. 32). As for her education, Plaintiff also testified she had obtained her GED. (Tr. 34). After this hearing, on September 14, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s disability applications. (Tr. 8-22). In this decision, the ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 14, 2010, her alleged onset date. (Tr. 13, Finding 2). The ALJ determined Plaintiff had the following severe impairments: morbid obesity, anxiety, depression, and cannabis abuse. (Tr. 13, Finding 3). Despite being severe, the ALJ determined these 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. 14-15, Finding 4). The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (Tr. 15-20, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC to perform the following: After careful consideration of the entire record, the undersigned finds that from the claimant’s alleged onset date of May 14, 2010 through her date last insured of March 31, 2011 the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she was limited to occasional 2 climbing, stooping, kneeling, crouching, and crawling and no jobs requiring balance such as climbing ladders, working with scaffolding, or working at unrestricted heights. She was limited to simple unskilled or semiskilled work, much as she has done in the past, involving limited contact with the public and superficial contact with supervisors and co-workers. However, from February 10, 2014, the supplemental security income application date, and continuing the claimant has the same residual functional capacity in terms of non-exertional limitations but has been further reduced to sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). Id. The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 20-21, Finding 6). The VE testified at administrative hearing regarding this issue. Id. Based upon that testimony, the ALJ determined that Plaintiff retained the capacity to perform her PRW as a data entry clerk (sedentary, semis-skilled). Id. Because she retained the capacity to perform this PRW, the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from May 14, 2010 through the date of his decision or through September 14, 2015. (Tr. 21, Finding 7). Thereafter, Plaintiff requested a review by the Appeals Council. (Tr. 1-3). On August 16, 2016, the Appeals Council denied this request. Id. On September 22, 2016, Plaintiff filed the present appeal with the Court. ECF No. 1. The Parties consented to the jurisdiction of this Court on September 22, 2016. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 11-12. This case is now ripe for determination. 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 3 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 4 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 raises one argument for reversal: the ALJ’s decision is not supported by substantial evidence because of his failure to “consider the combination of Plaintiff’s impairments as a whole.” ECF No. 11 at 1-13. In making this argument, Plaintiff alleges the ALJ erred in evaluating her subjective complaints. Id. Because the Court finds the ALJ erred in evaluating Plaintiff’s subjective complaints, the Court will only consider this argument 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. § 416.929.2 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 2 Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 r equire 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 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. 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 of complying with Polaski and considering the Polaski factors, the ALJ only focused on Plaintiff’s medical records. (Tr. 15-20). Indeed, although the ALJ recited he had properly evaluated Plaintiff’s subjective allegations, the ALJ truly only discounted Plaintiff’s subjective complaints because they were not supported by her medical records: 6 In sum, the above residual functional capacity assessment is supported by the objective medical evidence contained in the record. Treatment notes in the record do not sustain the claimant’s allegations of disabling symptoms and limitations. The consultative examinations of the claimant support the residual functional capacity as described above. The credibility of the claimant’s allegations is weakened by the reasons as previously addressed above. The claimant experiences some symptoms and limitations; however, the record does not fully support the severity of the claimant’s allegations. (Tr. 20) (emphasis added). The Court finds the ALJ’s decision to discount Plaintiff’s subjective complaints based upon her medical records and without a sufficient basis was improper under Polaski. 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 no valid reasons for discounting Plaintiff’s subjective complaints, 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 should be reversed and remanded.3 A judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58. ENTERED this 18th day of August 2017. /s/ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE 3 This remand is ordered solely for the purpose of permitting the ALJ the opportunity to comply with the requirements of Polaski. No part of this remand should be interpreted as an instruction that disability benefits be awarded. Upon remand, the ALJ should further evaluate the evidence and make a disability determination, subject to this Court’s later review. 7