Pierce v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on December 18, 2013. (lw)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION PATRICIA ANN PIERCE vs. PLAINTIFF Civil No. 2:12-cv-02261 CAROLYN W. COLVIN Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION Patricia Ann Pierce (“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 Disability Insurance Benefits (“DIB”) and a period of disability under Title II 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 an application for DIB on February 22, 2010. (Tr. 11, 96-102). Plaintiff alleged she was disabled due to herniated disc in back, fluid retention, joint inflammation, and high blood pressure. (Tr. 135). Plaintiff alleged an onset date of January 14, 2008. (Tr. 136). This application was denied initially and again upon reconsideration. (Tr. 46-47). Thereafter, Plaintiff requested an administrative hearing on her application and this hearing request was granted. 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 (Tr. 57). Plaintiff’s administrative hearing was held on June 16, 2011. (Tr. 22-45). Plaintiff was present and was represented by counsel, David Harp, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Sarah Moore testified at this hearing. Id. At the time of this hearing, Plaintiff was fifty-five (55) years old, which is defined as a “person of advanced age” under 20 C.F.R. § 404.1563(e), and had a high school education with a GED. (Tr. 26). On October 26, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s application for DIB. (Tr. 11-18). In this decision, the ALJ determined Plaintiff met the insured status requirements of the Act through December 31, 2012. (Tr. 13, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since January 15, 2008. (Tr. 13, Finding 2). The ALJ determined Plaintiff had the severe impairment of degenerative disc disease of the cervical spine, osteoarthritis/torn meniscus of the right knee, chronic low back pain, obesity, peripheral edema and essential hypertension. (Tr. 13, Finding 3). The ALJ then 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. 13-14, Finding 4). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC. (Tr. 14-17). 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 light work except she can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, cannot climb ladders, ropes and scaffolds, and cannot perform overhead work. (Tr. 14, Finding 5). 2 The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17, Finding 6). The ALJ found Plaintiff able to perform her PRW as a sorter and assembler. Id. Given this, the ALJ determined Plaintiff had not been under a disability as defined in the Act from January 15, 2008 through the date of his decision. (Tr. 18, Finding 7). Thereafter, Plaintiff requested the Appeals Council review 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 November 2, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on November 9, 2012. ECF No. 7. Both Parties have filed appeal briefs. ECF Nos. 14, 15. 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). 3 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 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). 4 3. Discussion: In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by substantial evidence in the record. ECF No. 14, Pg. 7-13. Specifically, Plaintiff claims the ALJ erred: (1) by failing to fully developing the record, (2) in the credibility determination of Plaintiff, (3) in the RFC determination of Plaintiff, (4) in failing to give proper treatment to the opinions of Plaintiff’s treating physician, and (5) in finding Plaintiff could perform her PRW. Id. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 15. A. Credibility Determination In assessing the credibility of a claimant, the ALJ is required to examine and to apply the five factors from Polaski v. Heckler 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 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 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 perform a proper Polaski analysis. While the ALJ indicated the factors from Polaski had been considered (Tr. 17), a review of the ALJ’s opinion shows that instead of evaluating these factors and noting inconsistencies between Plaintiff’s subjective complaints and the evidence in the record, the ALJ merely reviewed the medical records and recognized the proper legal standard for assessing credibility. In his opinion, the ALJ only made the following perfunctory statement regarding 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, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment. (Tr. 15). In briefing this matter, Defendant references several factors that could have been significant and that do support the ALJ’s credibility determination. ECF No. 15 at 9-12. The only problem is 6 that the ALJ did not actually state those factors in his decision. This analysis and these factors only appear in Defendant’s briefing in this matter. Such an attempt to bolster the ALJ’s credibility determination after-the-fact is improper. Instead, the ALJ has the responsibility to state those factors and inconsistencies in his opinion. See Baker, 159 F.3d at 1144. The ALJ made no specific findings regarding the inconsistencies between Plaintiff’s claimed subjective complaints and the record evidence. The ALJ must make a specific credibility determination, articulate the reasons for discrediting the Plaintiff’s testimony, and address any inconsistencies between the testimony and the record. The ALJ failed to perform this analysis. This lack of analysis is insufficient under Polaski, and this case should be reversed and remanded for further consideration consistent with Polaski. Upon remand, the ALJ may still find Plaintiff not disabled, however a proper and complete analysis pursuant to Polaski should be performed. B. ALJ’s Treatment of Treating Physician Opinions Social Security Regulations and case law state that a treating physician's opinion will be granted “controlling weight,” provided it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” See SSR 96-2p; Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000)(citing 20 C.F.R. § 404.1527(d)(2)). An ALJ is required to give good reasons for the particular weight given to a treating physician’s evaluation. See Prosch, 201 F.3d at1013 (citing 20 C.F.R § 404.1527(d)(2), and SSR 96-2p). An ALJ may disregard the opinion of a treating physician only where other medical assessments “are supported by better or more thorough medical evidence,” or where a treating physician renders inconsistent opinions that undermine the credibility of such opinions. Id. at 1013 (quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), and Cruze v. Chater, 85 F.3d 1320, 1324-25 (8th Cir. 1996)). 7 Dr. Wendell Ross has been treating Plaintiff since 2008. (Tr. 197-198). On March 11, 2010, Plaintiff was seen by Dr. Ross with complaints of back and neck pain. (Tr. 189-190). Plaintiff indicated she stopped work due to the pain. Id. Plaintiff had limited range of motion in her neck and back with pain and tenderness and a positive straight leg raise. Id. Plaintiff returned to Dr. Ross on April 19, 2010. (Tr. 185-186). Plaintiff continued to have neck and back pain. Id. Dr. Ross ordered an MRI exam which showed a central disc protrusion at C4-5 and small protrusion at C5-6. (Tr. 233). On September 8, 2010, Dr. Ross prepared a medical source statement. (Tr. 244-246). Dr. Ross indicated Plaintiff had severe limitations and was unable to work. Id. Dr. Ross found Plaintiff could lift and carry less than five pounds, stand and walk less than two hours and sit for less than six hours during an eight-hour workday. Id. Dr. Ross also indicated Plaintiff was limited in her ability to push and pull with upper and lower extremities, and could not climb, balance, kneel, crouch, or crawl. Id. The ALJ stated he did not give significant weight to the opinions of Dr. Ross because his conclusions were inconsistent with the medical record. (Tr. 16). Instead, the ALJ relied upon the opinions of a one time medical examiner. (Tr. 17). The ALJ has the responsibility to determine which findings are inconsistent and which opinions should be given greater weight than other opinions. See Brown v. Astrue, 611 F.3d 941, 951-52. However, when an ALJ determines that a treating physician’s opinion should be discounted, “he should give good reasons for doing so.” Id. (internal quotation and citation omitted). In this matter, the ALJ’s complete lack of analysis and review certainly does not amount to “good reasons” for discounting Dr. Ross’s findings. See Brown, 611 F.3d at 951-52. The ALJ has completely failed to discuss and analyze the opinions of Dr. Ross other than to say they are inconsistent with the 8 medical record. Substantial evidence does not support the ALJ’s decision of Plaintiff being not disabled because the ALJ failed to properly analyze the opinions of Plaintiff’s treating physician, Dr. Ross. Because the ALJ did not properly review the opinions of Plaintiff’s treating physician, this case should be reversed and remanded for proper review and analysis of these opinions. 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 18th day of December 2013. /s/ Barry A. Bryant HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE 9

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