Parker v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 29, 2016. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
ANGELIA DEWEYCE PARKER
vs.

PLAINTIFF
Civil No. 1:15-cv-01044

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Angelia Deweyce Parker (“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 a period of disability, 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. 3.1 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 September 12, 2012. (Tr. 199, 360-

368). In her applications, Plaintiff alleges being disabled due to degenerative disc disease and nerve
damage. (Tr. 382).

Plaintiff alleges an onset date of December 28, 2011. (Tr. 199). These

applications were denied initially and again upon reconsideration. (Tr. 247-282).

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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.”

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Thereafter, Plaintiff requested an administrative hearing on her denied applications, and this
hearing request was granted. (Tr. 213-246). Plaintiff’s administrative hearing was held on
September 3, 2013 in El Dorado, Arkansas. Id. Plaintiff was present and was represented by
counsel, Mr. Throne.2 Plaintiff and Vocational Expert (“VE”) Elizabeth Clem testified at this
hearing. Id. At this hearing, Plaintiff testified she was forty-one (41) years old, which is defined as
a “younger person” under 20 C.F.R. § 416.963(c). (Tr. 218). As for her level of education, Plaintiff
testified she had completed two years in college. Id.
After this hearing, on January 15, 2014, the ALJ entered an unfavorable decision denying
Plaintiff’s applications. (Tr. 196-207). The ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2016. (Tr. 201, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since December 28, 2011, her
alleged onset date. (Tr. 201, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: degenerative disc disease of the lumbar spine. (Tr. 201-202, 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. 202, Finding 4).
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (Tr. 202-206,
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 the
2

Mr. Thorne’s first name was not included in the transcript in this matter. (Tr. 213).

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claimant has the residual functional capacity to perform most light work as defined
in 20 CFR 404.1567(b) and 416.967(b). She can occasionally lift/carry 20 lbs and
frequently lift/carry 10 lbs; she can stand and/or walk, with normal breaks, a total of
no more than 6 hours of an 8 hour day, and sit, with normal breaks, up to 6 hours per
day. She can only occasionally stoop and crouch.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 206, Finding 6). The VE
testified at the administrative hearing regarding this issue. Id. Based upon that testimony, the ALJ
determined Plaintiff retained the capacity to perform her PRW as a childcare worker, production line
worker, and shift supervisor. Id. Because Plaintiff retained the capacity to perform her PRW, the
ALJ determined she had not been under a disability, as defined by the Act, from December 28, 2011
through the date of his decision or through January 15, 2014. (Tr. 206, Finding 7). Thereafter, on
June 23, 2015, Plaintiff filed the present appeal with this Court. ECF No. 1. The Parties consented
to the jurisdiction of this Court on June 23, 2015. ECF No. 3. 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

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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
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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 pro se appeal brief, Plaintiff claims the ALJ’s disability determination is not supported

by substantial evidence in the record. ECF No. 7. Upon review of this claim, the Court finds
Plaintiff is correct. Notably, the ALJ’s evaluation of Plaintiff’s credibility is not supported by
substantial evidence in the record, and this case must be reversed and remanded. Accordingly, the
Court will only address 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. § 416.929.3 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

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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.

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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. 202-206). The ALJ summarized his findings as follows:
. . . the undersigned must determine the issue of disability based on the credible
medical evidence and the degree to which the claimant’s subjective complaints are
consistent with the objective medical evidence. In this case, evidence establishes the
claimant is limited, but it does establish she is disabled. The intensity and
persistence of the claimant’s pain and other symptoms are not consistent with the
medical record signs and the medical record as a whole. . . .
In sum, the above residual functional capacity assessment is supported by the medical
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evidence of record. The undersigned finds that the claimant is able to perform light
exertional level work with the additional restrictions noted above.
(Tr. 206) (emphasis added).
Notably, the only Polaski factor the ALJ fully considered was Plaintiff’s daily activities, but
that analysis was also incomplete. The ALJ found the following: “Her daily activities further belie
her allegations. She is raising a very active teenage daughter by herself. She assists with taking care
of a 20-pound grandchild. She drives, attends church and bible study.” (Tr. 205). However, in
making this assessment, the ALJ completely omitted the fact that Plaintiff’s other daughter also lives
with her, and she reported this older daughter helps her with everything around the house. Notably,
her older daughter cooks, does the laundry, and drives her around. (Tr. 402-403). Further, Plaintiff
also reported she does not regularly attend church and only attends when she is “not in a lot of pain”
which is “hardly ever.” (Tr. 403). Thus, the ALJ’s assessment that Plaintiff “attends church and
bible study” was certainly not complete.
The Court finds the ALJ’s decision to discount Plaintiff’s subjective complaints 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
reason 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

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to Plaintiff, is not supported by substantial evidence and should be reversed and remanded.4 A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 29th day of April 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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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.

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