Grayson v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on September 23, 2016. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
ROSA ZENOBIA GRAYSON
vs.

PLAINTIFF
Civil No. 1:15-cv-01065

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Rosa Zenobia Grayson (“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 and 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. 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 her disability application on May 3, 2012. (Tr. 13, 144-149). In

her application, Plaintiff alleges being disabled due to asthma, arthritis in both knees, back pain,
obesity, and anxiety. (Tr. 167). Plaintiff alleges an onset date of June 20, 2007. (Tr. 167). This
application was denied initially and again upon reconsideration. (Tr. 13). Thereafter, Plaintiff

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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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requested an administrative hearing on her denied application, and this hearing request was granted.
(Tr. 98-100).
Plaintiff’s administrative hearing was held on September 23, 2013. (Tr. 58-78). Plaintiff was
present and was represented by counsel, Mary Thomason, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Charles Turner testified at this hearing. Id. At this hearing, Plaintiff
testified he was forty-two (42) years old, which is defined as a “younger person” under 20 C.F.R.
§ 416.963(c) (2008) (SSI) and under 20 C.F.R. § 404.1563(c) (2008) (DIB) and had a GED. (Tr.
60).
After this hearing, on May 30, 2014, the ALJ entered an unfavorable decision denying
Plaintiff’s SSI application. (Tr. 13-21). In this decision, the ALJ determined Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”) since May 3, 2002. (Tr. 15, Finding 1). The ALJ
then determined Plaintiff had the following severe impairments: osteoarthritis in the knees, asthma,
and morbid obesity. (Tr. 15, Finding 2). 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 3).
In his decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her
Residual Functional Capacity (“RFC”). (Tr. 17-19, Finding 4). First, the ALJ indicated he 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 sedentary work except can
occasionally climb, balance, stoop, and bend; cannot crouch, kneel, or crawl; and should avoid
excessive exposure to humidity, fumes, dust, temperature extremes, gases, and other pulmonary
irritants. Id.
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The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff had no PRW.
(Tr. 19, Finding 5). The ALJ then considered whether Plaintiff retained the capacity to perform other
work existing in significant numbers in the national economy. (Tr. 19, Finding 9). The VE testified
at the administrative hearing on this issue. Id. Based upon that testimony, the ALJ determined
Plaintiff retained the capacity to perform the following occupations: (1) lampshade assembler with
160,000 such jobs in the nation and 15,000 to 17,000 such jobs in the region, and (2) table worker
with 200,000 such jobs in the nation and 15,000 to 16,000 such jobs in the region Id. 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, since May 3, 2012. (Tr. 20, Finding 10).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 7-9). On August 28, 2015, the Appeals Council denied this request for review. (Tr.
1-6). Plaintiff then filed the present appeal on October 22, 2015. ECF No. 1. The Parties consented
to the jurisdiction of this Court on November 4, 2015. ECF No. 7. Both parties have field appeal
briefs. ECF Nos. 11, 12. 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
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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
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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 ALJ’s disability determination is not supported by

substantial evidence in the record. ECF No. 11, Pgs. 7-11. Specifically, Plaintiff claims the ALJ
erred: (1) in the credibility determination of Plaintiff, (2) in the hypothetical asked of the VE, and
(3) in failing to properly consider the opinions of Plaintiff’s treating physician. Id. In response, the
Defendant argues the ALJ did not err in any of his findings. ECF No. 12. 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
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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.

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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 and the opinions of Plaintiff’s treating physicians. (Tr. 17-19). First, the ALJ
summarized Plaintiff’s medical records. Id. After summarizing those records, the ALJ then
provided an entirely unhelpful and conclusory reason for discounting Plaintiff’s subjective
complaints:
After careful consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning the intensity,
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persistence and limiting effects of these symptoms are not entirely credible for the
reasons explained in this decision.
(Tr. 18).
Notably, the only Polaski factor the ALJ even referenced was Plaintiff’s daily activities. (Tr.
18). Accordingly, 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

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 23rd day of September 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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