Hart v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 18, 2012. (dmc)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION DEBBIE HART vs. PLAINTIFF Civil No. 6:10-cv-06081 MICHAEL J. ASTRUE Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION Debbie Hart (“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 Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), 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. 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 applications for disability benefits on October 19, 2006. (Tr. 15, 96-105). Plaintiff alleged she was disabled due to sleep apnea, degenerative disc disease, skin cancer, headaches, depression, reflux with esophageal hernia, arthritis, carpal tunnel syndrome, and restless 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 leg syndrome. (Tr. 113). Plaintiff alleged an onset date of April 28, 2006. (Tr. 77). These applications were denied initially and again on reconsideration. (Tr. 57-67, 71-74). Thereafter, Plaintiff requested an administrative hearing on her applications, and this hearing request was granted. (Tr. 75). This hearing was held on October 27, 2008 in Hot Springs, Arkansas. (Tr. 21-56). Plaintiff was present and was represented by counsel, Greg Giles, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Mack Welch testified at this hearing. Id. On the date of this hearing, 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), and had completed the 11th grade. (Tr. 27-28). On December 15, 2008, the ALJ entered an unfavorable decision denying Plaintiff’s applications for DIB and SSI. (Tr. 15-20). In this decision, the ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 28, 2006, her alleged onset date. (Tr. 19, Finding 2). The ALJ determined Plaintiff had the severe impairments of dysthymia, social anxiety history of anemia, obstructive sleep apnea, left carpal tunnel syndrome, and degenerative disc disease of the cervical spine. (Tr. 19, Finding 3). The ALJ also determined, however, that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled one of the listed impairments in the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 and No. 16 (“Listings”). (Tr. 19, Finding 4). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC. (Tr. 17-19, Findings 5,6). The ALJ indicated he evaluated Plaintiff’s subjective complaints and found her claimed limitations were not fully credible. (Tr. 20, Finding 5). The ALJ also determined, based upon his review of Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record, that Plaintiff retained the RFC for light work with the ability to lift and carry 20 pounds 2 occasionally and 10 pounds frequently, stand and walk for six hours, and sit with some pushing and pulling leg controls, but no working around machinery, heights, or with firearms. The ALJ further found Plaintiff was unable to climb ladders, drive, and perform repetitive movements with her non-dominant hand, was able to perform work where interpersonal contact is routine but superficial, complex tasks with several variables are learned by experience, supervision is little for routine work but detailed for nonroutine work, and where Plaintiff could use her judgment within limits. (Tr. 1718, Finding 6). The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18-19). The ALJ found Plaintiff was unable to perform her PRW. (Tr. 20, Finding 7). The ALJ did, however, find Plaintiff retained the ability to perform other work existing in significant numbers in the national economy. (Tr. 20, Finding 10). The ALJ based this finding upon the testimony of the VE. Id. Specifically, the VE testified in response to a question from the ALJ that a hypothetical individual with Plaintiff’s limitations retained the ability to perform work as an industrial order clerk with 160,000 such jobs in the Region and 800,000 in the national economy. Id. The ALJ then determined Plaintiff had not been under a disability, as defined by the Act, at anytime through the date of his decision. (Tr. 20, Finding 11). Thereafter, Plaintiff requested that the Appeals Council review the ALJ’s unfavorable decision. (Tr. 9-11). See 20 C.F.R. § 404.968. On September 11, 2010, the Appeals Council declined to review this unfavorable decision. (Tr. 1-4). On October 26, 2010, Plaintiff filed the present appeal. ECF No. 1. Both parties have filed appeal briefs. ECF Nos. 10, 11. 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) (2010); 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 her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by substantial evidence in the record. ECF No. 10. Specifically, Plaintiff claims the following: (1) the ALJ improperly discounted her subjective complaints and (2) the ALJ failed to evaluate the severity of her impairments. ECF No. 10 at 9-20. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 11. After reviewing Plaintiff’s argument in the briefing and the opinion by the ALJ, this Court finds the ALJ did not fully consider Plaintiff’s subjective complaints as required by Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). Thus, 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 5 factors from Polaski v. Heckler 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 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. 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 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 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. While the ALJ indicated the factors from Polaski, 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 had been considered (Tr. 17), a review of the ALJ’s opinion shows that instead of evaluating these factors and noting inconsistencies between Plaintiff’s subjective complaints and the evidence in the record, the ALJ merely reviewed the medical records and recognized the proper legal standard for assessing credibility. Other than mentioning some of Plaintiff’s medications and stating that she did not have any side-effects, the ALJ made no other specific findings regarding the inconsistencies between Plaintiff’s claimed subjective complaints and the record evidence.3 The ALJ must make a specific credibility determination, articulate the reasons for discrediting the Plaintiff’s testimony, and address any inconsistencies between the testimony and the record. The ALJ failed to perform this analysis. This lack of analysis is insufficient under Polaski, and this case should be reversed and remanded for further consideration consistent with Polaski. Upon remand, the ALJ may still find Plaintiff not disabled, however a proper and complete analysis pursuant to Polaski should be performed.4 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 3 The ALJ also found Plaintiff “self prescribed” medication because she took some old antibiotics when she thought she had a urinary tract infection. (Tr. 17). Given that this seems to be an isolated instance and only involved antibiotics, the Court questions the ALJ’s reliance on this in assessing Plaintiff’s credibility. 4 Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in this appeal. 7 52 and 58. ENTERED this 18th day of January, 2012. /s/ Barry A. Bryant HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE 8

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