Clark v. Social Security Administration Commissioner
Filing
10
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 23, 2015. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BECKY CLARK
vs.
PLAINTIFF
Civil No. 2:14-cv-02150
CAROLYN W. COLVIN
Commissioner, Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Becky Clark (“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. 6.1 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 November 14, 2011. (Tr. 28). In her
application, Plaintiff alleges being disabled due to diabetes, residuals from a stroke, shoulder pain,
depression, carpal tunnel syndrome, and heart problems. (Tr. 117). Plaintiff alleges an onset date
of March 9, 2010. (Tr. 28). This application was denied initially and again upon reconsideration.
(Tr. 123-125).
Thereafter, Plaintiff requested an administrative hearing on her denied application, and this
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.”
hearing request was granted. (Tr. 134-144). On February 8, 2013, the ALJ held this administrative
hearing. (Tr. 84-122). This hearing was held in Fort Smith, Arkansas. Id. Plaintiff was present and
was represented by Fred Caddell at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Donna
Humphries testified at this hearing. Id.
After this hearing, on February 8, 2013, the ALJ entered an unfavorable decision denying
Plaintiff’s application for DIB. (Tr. 25-37). In this decision, the ALJ found Plaintiff met the insured
status requirements of the Act on June 30, 2012. (Tr. 30, Finding 1). The ALJ determined Plaintiff
had not engaged in Substantial Gainful Activity (“SGA”) from her alleged onset date of March 9,
2010 through her date last insured of June 30, 2012. (Tr. 30, Finding 2). The ALJ determined
Plaintiff had the following severe impairments through her date last insured: insulin dependent
diabetes mellitus, cerebral vascular accident (“CVA”), a bilateral shoulder surgery, pain in her left
leg, pain in her knees, medication side effects, gastroesophageal reflux disease (“GERD”),
fibromyalgia, and depression. (Tr. 30, 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. 30-32, Finding 4).
The ALJ determined Plaintiff was fifty-three (53) years old, which is defined as a “person
closely approaching advanced age” under 20 C.F.R. § 404.1563(d) (2008). (Tr. 35, Finding 7). As
far as her education, the ALJ also determined Plaintiff had at least a high school education and was
able to communicate in English. (Tr. 36, Finding 8).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 32-35, 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, through
the date last insured, the claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except she could occasionally reach
(including overhead reach) on a bilateral basis. She could operate foot controls
frequently on the left. She must avoid even moderate exposure to hazardous
machinery. She was able to perform work where interpersonal contact is incidental
to the work performed; the complexity of tasks is learned and performed by rote, with
few variables and little judgment; and the supervision required is simple, direct, and
concrete. Due to the side effects of medication in combination with medical
conditions and mental impairments, she would have one (1) unexcused/unscheduled
absence per month on a consistent basis.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff had no PRW
she could perform. (Tr. 35, Finding 6). The ALJ then determined whether Plaintiff retained the
capacity to perform other work existing in significant numbers in the national economy. (Tr. 36-37,
Finding 10). The VE testified at the administrative hearing regarding this issue. Id. Considering
her age, education, work experience, and RFC, the ALJ determined Plaintiff retained the capacity
to perform the following representative occupation: machine tender with 1,500 such jobs in Arkansas
and 75,000 such jobs in the national economy. (Tr. 36). Because Plaintiff retained the capacity to
perform this other work, the ALJ determined Plaintiff had not been under a disability, as defined in
the Act, from her amended alleged onset date of March 9, 2010 through her date last insured of June
30, 2012. (Tr. 37, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 23). On June 4, 2014, the Appeals Council denied this request for review. (Tr. 1-3).
Plaintiff then filed the present appeal on July 3, 2014. ECF No. 1. The Parties consented to the
jurisdiction of this Court on July 10, 2014. ECF No. 6. 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).
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).
3.
Discussion:
In his appeal brief, Plaintiff raises the following three arguments for reversal: (1) the ALJ
erred by failing to fully and fairly develop the record; (2) the ALJ erred in assessing her credibility;
(3) the ALJ erred in assessing her RFC; and (4) the ALJ erred in evaluating her treating physician’s
medical source statement. ECF No. 8 at 1-20. Because the ALJ improperly evaluated her subjective
complaints, the Court will only address Plaintiff’s second 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. § 416.929.2 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to consider 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
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).
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.
In the present action, the ALJ did not comply with the requirements of Polaski. (Tr. 32-35).
Instead of complying with its requirements, the ALJ did what is specifically prohibited by Polaski
and discounted Plaintiff’s subjective complaints because they were not supported by her objective
medical records:
In sum, the above residual functional capacity assessment is supported by the medical
record as a whole. As for the claimant’s testimony, the undesigned finds it is not
consistent with the medical evidence as a whole and is discounted to that extent.
(Tr. 35) (emphasis added). This was entirely 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]”). Indeed, Polaski
prohibits this exact practice of evaluating a claimant’s RFC based upon the medical evidence alone.
Accordingly, because the ALJ provided no valid reasons 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.3 A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 23rd day of April 2015.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
3
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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