Smith v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 4, 2011. (cap)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION ROSE M. SMITH vs. PLAINTIFF Civil No. 1:10-cv-01056 MICHAEL J. ASTRUE Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION Rose M. 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. 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 filed an application for SSI on September 13, 2007. (Tr. 13, 94-97). Plaintiff alleged she was disabled due to sarcoidosis.2 (Tr. 104). Plaintiff characterized her symptoms as dizziness, weakness, vomiting, and coughing. (Tr. 31). Plaintiff alleged an onset date of June 1, 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.” 2 “Sarcoidosis” is “characterized by noncaseating granulomas in one or more organs and tissues; etiology is unknown. The lungs and lymphatic system are most often affected, but sarcoidosis may affect any organ.” The Merck Manual 462 (18th ed. 2006). 1 2006. (Tr. 94). This application was denied initially and again on reconsideration. (Tr. 52-53). Thereafter, Plaintiff requested an administrative hearing on her application, and this hearing request was granted. (Tr. 90). Plaintiff’s administrative hearing was held on July 16, 2009 in El Dorado, Arkansas. (Tr. 27-51). Plaintiff was present and was represented by counsel, Denver Thornton, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Dr. Miller Sales testified at this hearing. Id. At the time of this hearing, Plaintiff was thirty-seven (37) years old, which is defined as a “younger person”under 20 C.F.R. § 404.1563(c) (2008), and had completed the eleventh grade in high school. (Tr. 30). On November 13, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s application for SSI. (Tr. 13-23). In this decision, the ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since September 13, 2007, her application date. (Tr. 16, Finding 1). The ALJ determined Plaintiff had the following severe impairments: sarcoidosis and gastritis. (Tr. 15, Finding 2). The ALJ also determined Plaintiff’s impairments did not meet or medically equal the requirements of any of the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 15, Finding 3). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC. (Tr. 16-21, Finding 4). 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 the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b). However, the claimant would be limited to work where she would be able to avoid being around excessive chemicals, noise, humidity, dust, fumes, temperature extremes, vibrations, gasses, and other pulmonary irritants. In addition, the claimant would have to work in a clean air environment, not purified air, but air 2 free from fumes, dust and industrial pollutants. (Tr. 16-21, Finding 4). The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”), and the ALJ found Plaintiff had no PRW she could perform. (Tr. 21, Finding 5). The ALJ also found, however, that considering her RFC, age, education, and work experience, Plaintiff would be able to perform other work existing in significant numbers in the national economy. (Tr. 22-23, Finding 9). It appears the ALJ based this finding upon the testimony of the VE, but the opinion is unclear. (Tr. 22-23). The ALJ may also have based this finding upon the Medical-Vocational Guidelines or the “Grids.”3 Id. Specifically, the VE testified that, given all Plaintiff’s vocational factors, a hypothetical person would be able to perform the requirements of a representative occupation such as a cleaner, housekeeper with approximately 3,700 such jobs in Arkansas and 445,000 in the national economy or fast food worker, kitchen helper with approximately 5,000 such jobs in Arkansas and 604,000 in the national economy. (Tr. 22). The ALJ then found Plaintiff had not been under a disability, as defined by the Act, at any time from her application date of September 13, 2007 through November 13, 2009. (Tr. 23, Finding 10). Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable decision. (Tr. 6). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-3). On May 20, 2010, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on September, 1, 2010. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 7-8. This case is now ready for decision. 3 Even though the ALJ’s finding on this issue is not entirely clear, because this case must be otherwise remanded for an evaluation of Polaski, this Court will presume the ALJ based this finding upon the testimony of the VE. 3 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 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). 4 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 following: (1) the ALJ did not understand her impairments; (2) the ALJ’s criticism of her “no shows” was unfounded; (3) the ALJ performed an improper Polaski analysis; (4) the ALJ erred by finding her disabling impairments were not medically documented; (5) the ALJ’s RFC determination is not supported by substantial evidence in the record; and (6) the ALJ posed a defective hypothetical to the VE. ECF No. 7 at 2-17. Because this Court finds the ALJ improperly evaluated Plaintiff’s subjective complaints, this Court will only address the third issue Plaintiff raised. 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 5 20 C.F.R. § 416.929.4 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. 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. 4 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. 6 See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991). In the present action, the ALJ did not perform a proper Polaski analysis. The ALJ stated the Polaski factors and recited that he had evaluated those factors, but he did not analyze those factors or note any inconsistencies as required by Polaski. Instead of evaluating the Polaski factors and noting inconsistencies between Plaintiff’s subjective complaints and the evidence in the record, the ALJ merely focused upon Plaintiff’s medical records and noted that her subjective complaints were not consistent with the findings in her medical records: It must be noted that proof of a disabling impairment must be supported by at least some medical evidence. However, the evidence of record in this claim does not support the allegation of the claimant regarding the nature, severity and duration of his medically determinable impairments. . . . (Tr. 18). Indeed, the only Polaski factor the ALJ did consider was Plaintiff’s allegation that she was limited in her daily activities. (Tr. 16-21). The ALJ summarized her daily activities as follows: In regard to her activities of daily living, she was currently living with a family friend and her adult son. During a typical day she stated that she would get up around 6:00 a.m. or 7:00 a.m. take her medication and try to clean up around the house. After about ten or fifteen minutes, she would have to lie down. She usually had problems with nausea and vomiting in the mornings. (Tr. 17). The ALJ then discounted her allegedly limited daily activities primarily because they were not consistent with her medical records: Although the claimant has described daily activities which are fairly limited, two factors weigh against considering these allegations to be strong evidence in favor of finding the claimant disabled. First, allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty. Secondly, even if the claimant’s daily activities are truly as limited as alleged, it is difficult to attribute that degree of limitation to the claimant’s medical condition, as opposed to other reasons, in view of the relatively weak medical evidence and other factors discussed in this decision. Overall, the claimant’s reported limited daily activities are considered to be outweighed by the other factors discussed in this decision. 7 (Tr. 20) (emphasis added). By discounting Plaintiff’s subjective complaints merely because they were not supported by the medical evidence, the ALJ failed to comply with the requirements of Polaski. Because the ALJ’s failed to follow the requirements of Polaski, this case must be reversed and remanded.5 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 4th day of May, 2011. /s/ Barry A. Bryant HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE 5 This Court recommends that this case be reversed and remanded only for the purpose of fully considering the Polaski factors and supplying valid reasons for discounting Plaintiff’s subjective complaints. This Order should not be interpreted as requiring that Plaintiff be awarded disability benefits. 8

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