Moore v. Social Security Administration Commissioner

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION CARLA MOORE PLAINTIFF vs. Civil No. 1:18-cv-01010 NANCY A. BERRYHILL DEFENDANT Acting Commissioner, Social Security Administration

MEMORANDUM OPINION Carla Moore (“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 Disability Insurance Benefits (“DIB”) and a period of disability 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. 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 her DIB application on October 14, 2014. (Tr. 40). In this application, Plaintiff alleges being disabled due to anxiety, high blood pressure, lumbar spondylosis, facet arthropathy, disc disease, and breathing problems. (Tr. 220). Plaintiff alleges an onset date of December 1, 2010. (Tr. 40). Her DIB application was denied initially and again upon reconsideration. (Tr. 111-139). Plaintiff requested an administrative hearing on her denied application, and this hearing request was granted. (Tr. 156). Plaintiff’s administrative hearing was held on October 20, 2016 in

1 Alexandria, Louisiana. (Tr. 60-89). At this hearing, Plaintiff was present and was represented by Greg Giles. Id. Plaintiff and Medical Expert (“ME”) Dr. Kweli J. Amusa testified at this hearing. Id. On December 21, 2016, after the administrative hearing, the ALJ entered an unfavorable decision denying Plaintiff’s DIB application. (Tr. 37-50). The ALJ determined Plaintiff last met the

insured status requirements of the Act on December 31, 2015. (Tr. 42, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) during the period from her alleged onset date of December 1, 2010 through her date last insured of December 31, 2015. (Tr. 42, Finding 2). The ALJ determined Plaintiff had the following severe impairments: degenerative disc disease of the cervical and lumbar spine and hypertension. (Tr. 42-44, Finding 3). The ALJ also determined that Plaintiff did not have an impairment or combination of impairments that 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. 44-45, Finding 4).

In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her Residual Functional Capacity (“RFC”). (Tr. 45-49, Finding 5). First, the ALJ evaluated Plaintiff’ subjective complaints and found they were not entirely credible. Id. Second, the ALJ determined Plaintiff had the following RFC: After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant has the residual functional capacity to perform the full range of sedentary work as defined in 20 CFR 404.1567(a).

Id. The ALJ determined Plaintiff was forty-four (44) years old, which is defined as a “younger individual” under 20 C.F.R. § 404.1563(c) (2008), on her date last insured. (Tr. 49, Finding 7). The 2 ALJ determined Plaintiff had a limited education and was able to communicate in English. (Tr. 49, Finding 8). The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined that, through her date last insured, Plaintiff was unable to perform any PRW. (Tr. 49, Finding 6). The

ALJ also considered whether Plaintiff retained the capacity to perform other work existing in significant numbers in the national economy. (Tr. 49, Finding 10). The ALJ applied the Medical- Vocational Guidelines or “Grids” in making this determination. Id. Based upon Rule 201.25 of the Grids, the ALJ found Plaintiff was “not disabled.” Id. Accordingly, the ALJ found Plaintiff was not under a disability, as defined by the Act, at any time from December 1, 2010 (her alleged onset date) through December 31, 2015 (her date last insured). (Tr. 49, Finding 11).

Plaintiff sought review with the Appeals Council. On December 6, 2017, the Appeals Council denied this request for review. (Tr. 6-9). On January 30, 2018, Plaintiff filed a Complaint in this case. ECF No. 1. Both Parties have filed appeal briefs and have consented to the jurisdiction of this Court. ECF Nos. 5, 13-14. 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

3 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 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

4 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. 13 at 1-18. Specifically, Plaintiff raises the following two arguments for reversal: (1) the ALJ erred in her assessment of her chronic pain and non-exertional limitations; and (2) the ALJ erred in relying upon the Grids. Id. Upon review, the Court finds the ALJ has not a supplied a sufficient basis for discounting Plaintiff’s subjective complaints. Thus, the

Court will only address the first issue Plaintiff raised. 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 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 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 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 her credibility determination almost entirely upon the fact that Plaintiff’s subjective

complaints were not supported by her medical records. (Tr. 45-48). In her opinion, the ALJ summarized Plaintiff’s medical records and discounted Plaintiff’s subjective complaints because they were not supported by her objective medical records and supplied the following perfunctory statement: After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the 6 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. 45). The ALJ further stated the following regarding Plaintiff’s subjective complaints and again relied upon Plaintiff’s objective medical records in her decision to discount Plaintiff’s subjective complaints: After reviewing all the evidence, the undersigned finds the claimant retains the residual functional ability to perform sedentary work. Objective testing shows that she has pathology in the cervical and lumbar spine that would limit her ability to stand for long periods or lift more than ten pounds. No doctor has indicated that the claimant is unable to work or indicated that she is unable to perform sedentary work. In fact, in February 2016, Dr. Antoon recommended that the claimant should avoid “heavy” exertion and recommended a graduated exercise program. The undersigned gives Dr. Antoon’s opinion/recommendation significant weight because it is supported by the record and a finding that the claimant is limited to performing sedentary work. (Exhibit 22-F, page 5) (Tr. 48) (emphasis added). Based upon this review, the Court finds the ALJ discounted Plaintiff’s subjective complaints based upon her medical records. 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, 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. A 7 judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.

ENTERED this 31st day of January 2019. /s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE