Burns-Bolton v. Social Security Administration Commissioner

• Court: District Court, W.D. Arkansas
• Decided: February 4, 2022
• Docket: 5:20-cv-05127
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTVILLE DIVISION

AMBER BURNS-BOLTON PLAINTIFF

vs. Civil No. 5:20-cv-05127

KILOLO KIJAKAZI DEFENDANT Acting Commissioner, Social Security Administration

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Amber Burns-Bolton (“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 Supplemental Security Income (“SSI”) under Title XVI of the Act. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Timothy L. Brooks referred this case to this Court for the purpose of making a report and recommendation. In accordance with that referral, and after reviewing the arguments in this case, this Court recommends Plaintiff’s case be REVERSED AND REMANDED. 1. Background: Plaintiff filed her disability application on February 20, 2017. (Tr. 253). Plaintiff alleged disability due to Systemic lupus erythematosus, PTSD, Borderline personality disorder, general anxiety disorder, C1Q nephropathy, gastroporisis, Interstitial cystitis, chronic kidney stones, 1 bleeding of kidneys, and migraines with auras. (Tr. 535).1 Her application was denied initially and again upon reconsideration. (Tr. 253). Plaintiff requested an administrative hearing on her denied application, and this hearing request was granted. (Tr. 434-451). A hearing was held on March 13, 2019, and September 5,

2019. (Tr. 273-324). At this hearing, Plaintiff was present and represented by counsel, Meghan Gallo. Id. Plaintiff, her father John Burns and Vocational Expert, (“VE”) Barbara Hubbard testified at this hearing. Id. On September 26, 2019, after the administrative hearing, the ALJ entered a fully unfavorable decision denying Plaintiff’s disability application. (Tr. 253-264). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) from her alleged date of onset date of September 20, 2017. (Tr. 255, Finding 1). The ALJ also determined Plaintiff had the following severe impairments: Sjorgen’s syndrome, lupus, agoraphobia, anxiety, and depression. (Tr. 255, Finding 2). The ALJ also determined Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of any of the

Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 256, Finding 3). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her Residual Functional Capacity (“RFC”). (Tr. 258, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and found they were not entirely credible. Id. Second, the ALJ determined Plaintiff had the RFC to perform sedentary work except she was restricted to work where

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.” and refer to the document filed at ECF No. 18. These references are to the page number of the transcript itself and not the ECF page number. 2 interpersonal contact is incidental to work performed, complexity of tasks is learned and performed by rote, few variables, little judgment; and the supervision required is simple, direct, and concrete. Id. The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 262, Finding 5).

The ALJ determined Plaintiff was unable to perform her PRW. Id. However, the ALJ found there were jobs in the significant numbers in the national economy that Plaintiff could perform. (Tr. 262, Finding 9). With the help of the VE, the ALJ found Plaintiff could perform the representative occupations of (1) document preparer with approximately 46,000 jobs in the nation, (2) addresser with approximately 4,600 jobs in the nation, (3) toy stuffer with approximately 4,100 jobs in the nation, (4) table worker with approximately 3,000 jobs in the nation, and (5) Paramutual ticket checker with approximately 4,000 jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff had not been disabled at any time since September 20, 2017. (Tr. 263, Finding 10).

Plaintiff sought review with the Appeals Council. (Tr. 1-6). The Appeals Council denied this request. Id. On July 27, 2020, Plaintiff filed a Complaint in this case. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 24-25. This matter is now ripe for consideration. 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). 3 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). 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

4 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 decision is not supported by substantial evidence in the record. ECF No. 24 at 3-17. Specifically, Plaintiff raises the following arguments for reversal: (1) the ALJ failed to identity jobs that currently exist in significant numbers in the

national economy and (2) the ALJ erred in considering her subjective complaints of pain. Id. Upon review, the Court finds the ALJ did not fully consider her subjective complaints when evaluating her disability. According, the Court will only address this issue 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 20 C.F.R. § 416.929.1 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

1 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. 5 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. 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, the ALJ based his credibility determination almost entirely upon the fact that Plaintiff’s subjective

complaints were not supported by her medical records. (Tr. 258-262). In his opinion, the ALJ

6 summarized Plaintiff’s medical records and discounted Plaintiff’s subjective complaints because they were not supported by the objective medical records:

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 consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. (Tr. 259). Indeed, in this opinion, the only non-medical evidence the ALJ considered was Plaintiff’s daily activities. (Tr. 259). The ALJ’s consideration involved only a limited discussion of Plaintiff’s daily activities. Id. Based upon this review, the Court finds the ALJ’s assessment of Plaintiff’s subjective complaints was improper. 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 an insufficient basis for discounting Plaintiff’s subjective complaints during the relevant time-period, 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 recommends it be REVERSED AND REMANDED. The Parties have fourteen (14) days from receipt of this Report and Recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely 7 objections may result in waiver of the right to appeal questions of fact. The Parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).

ENTERED this 4th day of February 2022.

Barry A. Bryant /s/ HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE