Cash v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 5, 2015. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TERRIL CASH
vs.

PLAINTIFF
Civil No. 2:14-cv-02046

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Terril Cash (“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 his applications for
Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), 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. 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 filed his disability applications on December 2, 2010. (Tr. 271-286). In his

applications, Plaintiff alleges being disabled due to high blood pressure, anxiety, traumatic brain
injury, and back pain. (Tr. 302). Plaintiff alleges an onset date of December 18, 2007. (Tr. 106).
These applications were denied initially and again upon reconsideration. (Tr. 149-198).

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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 his denied applications, and this
hearing request was granted. (Tr. 121-148). On November 28, 2012, the ALJ held an administrative
hearing to address Plaintiff’s applications. Id. This hearing was held in Charlotte, North Carolina.
Id. Plaintiff was present at this hearing and was represented by H. Kent Crowe. Id. Plaintiff and
Vocational Expert (“VE”) Katherine Mooney testified at this hearing. Id. At the time of this
hearing, Plaintiff testified he has a high school education. (Tr. 139).
After this hearing, on January 11, 2013, the ALJ entered an unfavorable decision denying
Plaintiff’s applications for DIB and SSI. (Tr. 103-116). In this decision, the ALJ found Plaintiff met
the insured status requirements of the Act through June 30, 2008. (Tr. 108, Finding 1). The ALJ
found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since December 18, 2007,
his alleged onset date. (Tr. 108, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: status post traumatic brain injury, degenerative disease of the lumbar spine,
hypertension, and generalized anxiety disorder. (Tr. 108-110, Finding 3). 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. 110-111,
Finding 4). The ALJ determined Plaintiff was forty-five (45) years old on his alleged onset date.
(Tr. 115, Finding 7). This is defined as a “younger person” under 20 C.F.R. § 416.963(c) (2008)
(SSI) and 20 C.F.R. § 404.1563(c) (2008) (DIB). Id.
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 111-114, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to perform the following:
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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 404.1567(b) and 416.967(b) except he is limited to occasional climbing of
ladders and he must avoid concentrated exposure to hazards. He is also limited to
simple, routine, repetitive tasks in a stable environment at a nonproduction pace.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff had no PRW
he could perform. (Tr. 114-115, Finding 6). The ALJ then determined whether Plaintiff retained
the capacity to perform other work existing in significant numbers in the national economy. (Tr.
115-116, Finding 10). The VE testified at the administrative hearing regarding this issue. Id.
Considering his age, education, work experience, and RFC, the ALJ determined Plaintiff retained
the capacity to perform the following representative occupations: (1) Storage Facility Rental Clerk
with 4,685 such jobs in North Carolina and 180,000 such jobs nationwide; (2) Sales Attendant with
5,100 such jobs in North Carolina and 556,000 such jobs nationwide; and (3) Parking Lot Cashier
with 1,300 such jobs in North Carolina and 42,500 such jobs nationwide. (Tr. 115-116, Finding 10).
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, from December 18, 2007 through the date of the
ALJ’s decision or through January 11, 2013. (Tr. 116, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. On February 24, 2014, the Appeals Council denied this request for review. (Tr. 1-3).
Plaintiff then filed the present appeal on March 13, 2014. ECF No. 1. The Parties consented to the
jurisdiction of this Court on March 19, 2014. ECF No. 7. This case is now ready for decision.
2.

Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
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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).
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
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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 his appeal brief, Plaintiff raises the following three arguments for reversal: (1) the ALJ

failed to fully develop the record; (2) the ALJ erred in assessing his credibility; and (3) the ALJ erred
in assessing his RFC. ECF No. 9. Because the ALJ improperly evaluated his subjective complaints,
the Court will only address Plaintiff’s second claim.
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

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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

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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.
See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
In the present action, the ALJ did not comply with the requirements from Polaski or from 20

require the analysis of these additional factors in this case.

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C.F.R. § 404.1529 and 20 C.F.R. § 416.929.3 (Tr. 111-114). Instead, the ALJ found Plaintiff’s RFC
was “appropriate in light of the objective medical evidence.” (Tr. 114). The ALJ also found that
Plaintiff’s “testimony and subjective statements regarding the intensity and limiting effects of his
pain and other symptoms . . . [were] . . . not credible because . . . [they were] . . . inconsistent with
the medical evidence and his activities of daily living.” (Tr. 113) (emphasis added).
Further, even though the ALJ also included a reference to “activities of daily living” when
discounting Plaintiff’s subjective complaints, the Court finds those activities are certainly not
extensive. As the ALJ noted, those activities included “caring for his own personal hygiene needs,
fixing light meals, shopping for personal items and groceries, handling his own finances, performing
most household chores, and walking a mile a day for exercise.” Id. Indeed, the only activity which
seems to demonstrate he is able to work is the finding that he can walk “a mile a day for exercise.”
Plaintiff, however, primarily alleges a mental impairment due to his “post traumatic brain injury.”
(Tr. 108, Finding 3). The fact he has a limited ability to exercise is not inconsistent with his alleged
disability.
Finally, according to his third party function report, Plaintiff’s daily activities are “much
slower,” and his wife has to assist him with many of those activities. (Tr. 310-317). This report is
further support for the finding that these activities are not as extensive as the ALJ indicated in his
opinion. Accordingly, because the ALJ provided no valid reasons for discounting Plaintiff’s
subjective complaints, this case must be reversed and remanded.

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This case was decide in North Carolina, where Polaski would not apply. However, the factors
from these social security regulations did apply.

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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.4 A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 5th day of March 2015.
/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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