Castleberry v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION Signed by Honorable Barry A. Bryant on December 16, 2011. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
LISA M. CASTLEBERRY
vs.

PLAINTIFF
Civil No. 3:10-cv-03116

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Lisa M. Castleberry (“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. 5.1 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 her disability applications on December 26, 2007. (Tr. 47, 102-113). Plaintiff

alleged she was disabled due to chronic back pain, degenerative disc disease, and scoliosis. (Tr.
134). Plaintiff alleged an onset date of October 14, 2007. (Tr. 134). These applications were denied
initially and again upon reconsideration. (Tr. 40-43).

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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, on May 23, 2008, Plaintiff requested an administrative hearing on her
applications, and this hearing request was granted. (Tr. 73-95). Plaintiff’s administrative hearing
was held on March 4, 2009 in Harrison, Arkansas. (Tr. 7-39). Plaintiff was present and was
represented by counsel, Donald E. Bishop, at this hearing. Id. Plaintiff, a witness for Plaintiff, and
Vocational Expert (“VE”) Floyd John Massey testified at this hearing. Id. At the time of this
hearing, Plaintiff was forty-one (41) years old, which is defined as a “younger person” under 20
C.F.R. § 404.1563(c), and had obtained a four-year college degree in graphic design. (Tr. 12-14).
On July 1, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s applications
for DIB and SSI. (Tr. 47-57). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2011. (Tr. 49, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since October 14, 2007, her
alleged onset date. (Tr. 49, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: degenerative disc disease, scoliosis, and a mood disorder (depression). Id. 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. 5051, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 51-55, 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
claimant has the residual functional capacity to lift and carry ten pounds occasionally
and less than ten pounds frequently. The claimant can sit for about 6 hours during
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an 8 hour workday and can stand and walk for at least 2 hours during an 8 hour
workday. The claimant can occasionally climb, balance, stoop, kneel, crouch, and
crawl. The claimant can perform unskilled work where interpersonal contact is
incidental to the work performed.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 55, Finding 6). The ALJ
determined Plaintiff’s PRW included work as a home health aide (medium, semi-skilled); retail sales
clerk (light, semi-skilled); head gardener (medium, semi-skilled); assistant restaurant manager (light,
skilled); and waitress (light, semi-skilled). Id. The VE testified at the administrative hearing
regarding this issue. (Tr. 34-39). Based upon her RFC and the VE’s testimony, the ALJ determined
Plaintiff was unable to perform any of her PRW. (Tr. 55, Finding 6). The ALJ, however, also
evaluated whether there was other work existing in significant numbers in the national economy that
she could perform. (Tr. 55-56, Finding 10). The VE also testified on this issue. (Tr. 34-39).
Based upon that testimony, the ALJ determined that a hypothetical person with Plaintiff’s
limitations would be able to perform representative occupations such as assembly worker (sedentary,
unskilled) with approximately 453 such jobs in the regional economy and 13,264 such jobs in the
national economy; bench assembler (sedentary, unskilled) with approximately 196 such jobs in the
regional economy and 10,967 such jobs in the national economy; and packaging machine operator
(sedentary, unskilled) with approximately 1,001 such jobs in the regional economy and 6,000 such
jobs in the national economy. (Tr. 56). The ALJ then determined Plaintiff had not been under a
disability, as defined by the Act, from October 14, 2007 through the date of his decision or through
July 1, 2009. (Tr. 56, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable

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decision. (Tr. 6).

See 20 C.F.R. § 404.968. The Appeals Council declined to review this

unfavorable decision. (Tr. 1-3). On December 1, 2010, Plaintiff filed the present appeal. ECF No.
1. The Parties consented to the jurisdiction of this Court on December 6, 2010. ECF No. 5. Both
Parties have filed appeal briefs. ECF Nos. 7-8. 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,
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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 her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by

substantial evidence in the record. ECF No. 7. Specifically, Plaintiff claims the ALJ erred by
improperly discrediting her testimony regarding her impairments. Id. Because this Court agrees
with Plaintiff’s argument and finds the ALJ improperly evaluated her subjective complaints, this
Court will only address that issue.
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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
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

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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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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. Instead of
evaluating the Polaski factors and noting inconsistencies between Plaintiff’s subjective complaints
and the evidence in the record, the ALJ merely summarized the medical records and recited the
following:
In sum, the above residual functional capacity assessment is consistent with and
supported by the record as whole. Due to the lack of supporting objective medical
evidence, the undersigned finds the claimant’s subjective complaints and alleged
limitations not fully persuasive and, therefore, she is able to perform basic work
activities at the residual functional capacity outlined above.
(Tr. 55) (emphasis added). Discounting Plaintiff’s subjective complaints based upon the medical
evidence alone was improper. See Polaski, 739 F.2d at 1322 (holding the ALJ cannot discount
Plaintiff’s subjective complaints “solely because the objective medical evidence does not fully
support them [the subjective complaints]”).
Indeed, particularly telling in this case is that fact that Plaintiff is required to take a number
of strong prescription pain relievers throughout the day. (Tr. 53). The ALJ noted Plaintiff takes
alternating doses of 50 to 100 milligrams of Morphine every 4 hours throughout the day as well as
150 mg of Trazodone (sedative), 4 mg of Tizanidine (muscle relaxant), and 350 mg of Soma (muscle
relaxant, pain reliever) four times per day. Id. All of these medications were taken at the direction
of a pain management specialist. Id. Even despite these medications, the ALJ still found Plaintiff’s
subjective complaints of disabling pain were entirely inconsistent with her medical treatment and
the medical records. Thus, upon remand, the ALJ should more fully address Plaintif’s medications
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as well as consider the other Polaski factors.3
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 16th day of December, 2011.
/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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