Neitzel v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 16, 2015. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
IRMA NEITZEL
vs.

PLAINTIFF
Civil No. 6:14-cv-06048

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Irma Neitzel (“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 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. 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 filed her disability application on September 20, 2011. (Tr. 14, 113-114). In this

application, Plaintiff alleges being disabled due to nerve damage in her right arm and hand. (Tr.
135). Plaintiff alleges an onset date of September 14, 2011. (Tr. 14). This application was denied
initially and again upon reconsideration. (Tr. 45-46).
Thereafter, Plaintiff requested an administrative hearing on her denied application, and this

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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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hearing request was granted. (Tr. 56-80). On October 25, 2012, the ALJ held an administrative
hearing to address Plaintiff’s application. (Tr. 26-44). This hearing was held in Hot Springs,
Arkansas. Id. Plaintiff was present at this hearing and was represented by counsel, Hans Pullen.
Id. Plaintiff and Vocational Expert (“VE”) Elizabeth Clem testified at this hearing. Id.
After this hearing, on January 23, 2013, the ALJ entered an unfavorable decision denying
Plaintiff’s application for DIB. (Tr. 11-21). In this decision, the ALJ found Plaintiff met the insured
status requirements of the Act through June 30, 2016. (Tr. 16, Finding 1). The ALJ found Plaintiff
had not engaged in Substantial Gainful Activity (“SGA”) since September 14, 2011, her alleged
onset date. (Tr. 16, Finding 2). The ALJ determined Plaintiff had the following severe impairments:
status post fracture of the right humerus and joint dysfunction. (Tr. 16, 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.
16-17, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 17-19, 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 perform light work as defined in 20
CFR 404.1567(b) except she is to have no rapid, repetitive, flexion or extension of
the hands.
Id. The “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 objects weighing up to 10 pounds. Even though the
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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 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) (2012). The ALJ determined Plaintiff was fifty-four (54) years old on her
alleged disability onset date. (Tr. 20, Finding 7). Such a person is characterized as an individual
“closely approaching advanced age” under 20 C.F.R. § 404.1563(d) (2008). Id. The ALJ also
determined Plaintiff had at least a high school education and was able to communicate in English.
(Tr. 20, Finding 8).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was unable
to perform any of her PRW. (Tr. 20, Finding 6). The ALJ then determined whether Plaintiff
retained the capacity to perform other work existing in significant numbers in the national economy.
(Tr. 20-21, Finding 10). The VE testified at the administrative hearing regarding this issue. Id.
Based upon that testimony, the VE determined Plaintiff retained the capacity to perform work as a
personal care assistant with approximately 3,400 such jobs in Arkansas and 350,000 such jobs in the
national economy. Id. 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 September 14, 2011
through the date of her decision or through January 23, 2013. (Tr. 21, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 8). On March 12, 2014, the Appeals Council denied this request for review. (Tr. 1-4).
Plaintiff then filed the present appeal on April 10, 2014. ECF No. 1. The Parties consented to the

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jurisdiction of this Court on April 11, 2014. ECF No. 7. 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
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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 raises two points: (1) the ALJ erred in finding her impairments

do not meet the requirements of the Listings; and (2) the ALJ erred in concluding she retained the
RFC to perform light work. ECF No. 10. In response, Defendant argues the ALJ properly found
Plaintiff’s impairments did not meet or equal one of the Listings, and the ALJ properly considered
the combined effects of Plaintiff’s impairments. ECF No. 11. Upon review, the Court finds the ALJ
did not properly consider Plaintiff’s subjective complaints when assessing her RFC. Thus, 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
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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 comply with the requirements from Polaski or from 20
C.F.R. § 404.1529 and 20 C.F.R. § 416.929. (Tr. 11-21). Instead of evaluating Plaintiff’s subjective
complaints and providing reasons for discounting those subjective complaints, the ALJ provided
the following cursory statement justifying her decision to discount Plaintiff’s subjective complaints
of disabling limitations:
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.
(Tr. 18). Later in her opinion, the ALJ also stated the following:
In sum, the above residual functional capacity assessment is supported by a
comprehensive assessment of the medical record from multiple medical sources that
have given the undersigned a full picture of the claimant’s residual functional
capacity assessment. The record reflects the claimant’s longitudinal history, both
negative and positive progress notes, and a comprehensive summary of her treatment.
Additionally, the claimant’s credibility has been taken into account and weighed
against the medical opinions. In that respect, while the claimant has suffered some
injuries there are no injuries that exclude her from working at all levels prescribed
in the residual functional capacity above. The undersigned has considered the
claimant’s impairments and included them in the residual functional capacity.
(Tr. 19) (emphasis added). Accordingly, because the ALJ relied entirely upon Plaintiff’s medical
records in discounting her subjective complaints and provided no valid reasons for discounting
Plaintiff’s subjective complaints, this case must be reversed and remanded. See Polaski, 739 F.2d
at 1322 (recognizing the ALJ cannot discount a claimant’s subjective complaints of disabling
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limitations “solely because the objective medical evidence does not fully support them [the
subjective complaints]).”
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 16th day of March 2015.
/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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