Bickham v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on December 21, 2015. (mll)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION DAVID E. BICKHAM vs. PLAINTIFF Civil No. 4:14-cv-04161 CAROLYN W. COLVIN Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION David E. Bickham (“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 a period of disability and Disability Insurance Benefits (“DIB”) 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. 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 protectively filed his disability application on June 4, 2012. (Tr. 9, 101-107). In his application, Plaintiff alleges being disabled due to diabetes with complications, neuropathy, kidney failure, dementia, high blood pressure, COPD and emphysema, osteoarthritis, calcaneal spur, hypercholesterolemia, anemia and fatigue, muscle spasms, edema in feet and legs, severe nosebleeds, 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 GERD, severebilateral carpal tunnel, vericose veins, ADD and ADHD, and cataracts and blood spots in eyes. (Tr. 183). Plaintiff alleges an onset date of June 11, 2012. (Tr. 101). This application was denied initially and again upon reconsideration. (Tr. 45-46). Thereafter, Plaintiff requested an administrative hearing on his denied application, and this hearing request was granted. (Tr. 55-64). Plaintiff’s administrative hearing was held on November 6, 2013 in Texarkana, Arkansas. (Tr. 25-44). Plaintiff was present and was represented by counsel, Greg Giles, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Tammie C. Donaldson testified at this hearing. Id. At this hearing, Plaintiff testified he sixty-two (62) years old, which is defined as a “person of advanced age” under 20 C.F.R. § 404.1563(c) (2008). (Tr. 29). As for his level of education, Plaintiff also testified he had completed high school. (Tr. 31). After this hearing, on December 18, 2013, the ALJ entered an unfavorable decision denying Plaintiff’s application for DIB. (Tr. 6-19). In this decision, the ALJ determined Plaintiff met the insured status requirements of the Act through December 31, 2016. (Tr. 11, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since June 2, 2012, his alleged onset date. (Tr. 11, Finding 2). The ALJ determined Plaintiff had the following severe impairments: chronic kidney disease stage III and diabetes mellitus type II with neuropathy status post history of wounds. (Tr. 11-12, 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. 12, Finding 4). In his decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his Residual Functional Capacity (“RFC”). (Tr. 13-18, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found his claimed limitations were not entirely credible. Id. Second, the 2 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 perform the full range of light work, as defined in 20 CFR 404.1567(b). Id. The “full range of light work” includes the following: (b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. § 404.1567(b) (2015). The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, Finding 6). Considering Plaintiff’s limitations, the ALJ determined Plaintiff retained the capacity to perform his PRW as a poultry machine tender (light, unskilled). (Tr. 18, Finding 6). Because Plaintiff retained the capacity to perform this PRW, the ALJ also determined Plaintiff had not been under a disability, as defined by the Act, from June 2, 2012 through the date of his decision or through December 18, 2013. (Tr. 18, Finding 7). Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable decision. (Tr. 5). On November 17, 2014, the Appeals Council denied this request for review. (Tr. 1-3). Plaintiff then filed the present appeal on December 5, 2014. ECF No. 1. The Parties consented to the jurisdiction of this Court on December 5, 2014. ECF No. 5. This case is now ready for decision. 3 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). 4 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 four arguments for reversal: (1) the ALJ erred in assessing the Listings; (2) the ALJ erred by finding his subjective complaints were not credible; (3) the ALJ erred by ignoring the opinions of his physician; and (4) the ALJ erred by failing to develop his vocational profile. ECF No. 10 at 1-20. Upon review of these claims, the Court agrees with Plaintiff’s second argument and finds the ALJ improperly evaluated his subjective complaints. Accordingly, the Court will only address this 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 5 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 a Plaintiff disabled within the strict definition of the Act. The issue is not the existence of pain, but 2 Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 r equire 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. 6 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 of Polaski. Instead of complying with Polaski and considering the Polaski factors, the ALJ only focused on Plaintiff’s medical records. (Tr. 13-18). Indeed, the ALJ stated the following in his decision to discount 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 entirely credible for the reasons explained in this decision. The undersigned finds the claimant’s allegations partially credible as they are not supported by the objective findings and the history [of] medical treatment. . . . (Tr. 24) (emphasis added). Accordingly, the Court finds the ALJ’s decision to discount Plaintiff’s subjective complaints without a sufficient basis was 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]”). Accordingly, because the ALJ provided no valid reason 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 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 7 judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58. ENTERED this 21st day of December 2015. /s/ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE disability determination, subject to this Court’s later review. 8

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