Morris v. Social Security Administration Commissioner
Filing
12
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 26, 2015. (jn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
DARREN D. MORRIS
PLAINTIFF
vs.
Civil No. 3:14-cv-03059
CAROLYN W. COLVIN
Commissioner, Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Darren Morris (“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 application for
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. 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 his disability applications on March 11, 2011. (Tr. 11, 141-154).
In his applications, Plaintiff alleges being disabled due to a nerve injury, diabetes, depression, knee
and leg problems, and circulation problems. (Tr. 196). Plaintiff alleged an onset date of November
30, 2009.
(Tr. 11, 155, 196).
These applications were denied initially and again upon
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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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reconsideration. (Tr. 11, 76-82, 89-93).
Thereafter, Plaintiff requested an administrative hearing on his denied applications, and this
hearing request was granted. (Tr. 94-96). On January 8, 2013, the ALJ held an administrative
hearing to address Plaintiff’s applications. (Tr. 30-71). Plaintiff was present at this hearing and was
represented by counsel, Frederick Spencer. Id. Plaintiff and Vocational Expert (“VE”) Jim Spragins
testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-three (43) years old,
which is defined as a “younger person” under 20 C.F.R. § 404.1563(c), and had an eighth grade
education. (Tr. 36).
After this hearing, on March 1, 2013, the ALJ entered an unfavorable decision denying
Plaintiff’s application for DIB and SSI. (Tr. 11-24). In this decision, the ALJ found Plaintiff met
the insured status of the Act through March 1, 2013. (Tr. 14, Finding 2). The ALJ also found
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) for a continuous 12 month period.
(Tr. 15, Finding 4).
The ALJ determined Plaintiff had the following severe impairments: degenerative joint
disease of the cervical spine, hypertension, insulin dependent diabetes mellitus with neuropathy, and
mood disorder. (Tr. 15, Finding 5). 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 6).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 19-22, Finding7). First, the ALJ indicated he 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 light work except he can use his dominant right upper extremity
frequently, but not repetitively, and can only do work with simple tasks and simple instructions. Id.
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The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was able to
perform his PRW as an office helper and mail clerk. (Tr. 23, Finding 8). Based upon this finding,
the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from November
30, 2009 through the date of his decision. (Tr. 23, Finding 9).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 5). On April 8, 2014, the Appeals Council denied this request for review. (Tr. 1-4).
Plaintiff then filed the present appeal on June 2, 2014. ECF No. 1. The Parties consented to the
jurisdiction of this Court on June 10, 2014. ECF No. 7. Both Parties have filed appeal briefs. ECF
Nos. 10, 11. 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
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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 claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 10, Pg. 9-13. Specifically, Plaintiff claims the ALJ
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erred (1) in the credibility determination of Plaintiff, and (2) in dismissing the opinions of the
consultative physician’s opinions. Id. In response, the Defendant argues the ALJ did not err in any
of his findings. ECF No. 11. 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
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
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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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[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).
Plaintiff argues the ALJ erred in failing to consider the side effects of his medication as part
of the credibility determination. This Court agrees the ALJ failed to consider Plaintiff’s medication
side effects.
The ALJ must properly consider the claimant’s testimony regarding significant medication
side effects. Porch v. Chater, 115 F.3d 567, 572 (8th Cir. 1997). This requires an express
examination of the dosage, effectiveness, and side effects of all medication. Polaski, 739 F. 2d at
1322. Failure to include medication side effects in the hypothetical to the VE, “at a minimum,”
requires the case to be remanded. Mitchell v. Sullivan, 925 F.2d 247, 250 (8th Cir. 1991).
Regarding Plaintiff’s medication side effects, he testified he took Metformin which caused
him stomach problems, specifically constipation. (Tr. 55-56). Plaintiff also stated he used Flexeril
and Tramadol which made him dizzy, tired, caused dry mouth and caused difficulty swallowing. Id.
Plaintiff also used Metropolol which made him “real tired.” (Tr. 56).
On remand, the ALJ is directed to expressly evaluate each of the Polaski credibility factors
as to Plaintiff’s impairments. Specifically the ALJ shall evaluate and determine what drugs Plaintiff
is currently taking and to consider the side effects of those medications. Once this is completed, any
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changes that might result in his overall RFC must be addressed to the VE, either in person or by
interrogatory.
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 26th day of May 2015.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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