IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION LISA DELAINE AMERSON PLAINTIFF vs. Civil No. 1:16-cv-01090 NANCY A. BERRYHILL DEFENDANT Acting Commissioner, Social Security Administration MEMORANDUM OPINION Lisa Delaine Amerson (“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 protectively filed her disability application on December 14, 2013. (Tr. 13). In her application, Plaintiff alleges being disabled due to back problems, diabetes, sleep disorders, restless leg syndrome, depression, high blood pressure, high cholesterol, and bladder problems. Id. Plaintiff alleges an onset date of June 15, 2013. (Tr. 13, 151-158). This application was denied initially and again upon reconsideration. (Tr. 58-85). 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 Thereafter, Plaintiff requested an administrative hearing on August 5, 2014. (Tr. 95-96). The ALJ granted that request and held an administrative hearing on October 15, 2015 in El Dorado, Arkansas. (Tr. 30-57). At this hearing, Plaintiff was present and was represented by Mary Thomason. Id. Plaintiff and Vocational Expert (“VE”) Leonard Francois testified at this hearing. Id. At this administrative hearing, Plaintiff testified she was fifty-four (54) years old, which is defined as a “younger individual” under 20 C.F.R. § 404.1563(d) (2008). (Tr. 33). As for her level of education, the ALJ determined Plaintiff graduated from high school and went to vocational technical school. (Tr. 34). After this hearing, on November 30, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s disability application. (Tr. 10-25). In this decision, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2017. (Tr. 15, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since June 15, 2013, her alleged onset date. (Tr. 15, Finding 2). The ALJ determined Plaintiff had the following severe impairments: degenerative joint disease, diabetes, restless leg syndrome, and sleep disorders. (Tr. 15-18, Finding 3). Despite being severe, the ALJ determined these 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. 18, Finding 4). The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (Tr. 18-24, 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 2 claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except the need to work indoors in a climate controlled environment; no climbing, balancing, or even heights; the need to periodically change positions briefly for comfort (due to restless leg syndrome) but while do so was able to remain within the work area. Id. The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was unable to perform her PRW. (Tr. 24, Finding 6). The ALJ also determined whether Plaintiff retained the capacity to perform other work existing in significant numbers in the national economy. (Tr. 24-25, Finding 10). The VE testified at the administrative hearing regarding this issue. Id. Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform occupations such as the following: (1) telephone solicitor (sedentary, semi-skilled) with 170,000 such jobs in the national economy and 1,300 such jobs in the state economy; (2) appointment clerk (sedentary, semi-skilled) with 121,000 such jobs in the national economy and 1,000 such jobs in the state economy; and (3) information clerk (sedentary, semi-skilled) with 96,000 such jobs in the national economy and 11,000 such jobs in the state economy. (Tr. 25). Because Plaintiff retained the capacity to perform this other work, the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from June 15, 2013 (alleged onset date) through the date of her decision or through November 30, 2015. (Tr. 25, Finding 11). Thereafter, Plaintiff requested a review by the Appeals Council. (Tr. 7). On October 7, 2016, the Appeals Council denied this request. (Tr. 1-3). On November 1, 2016, Plaintiff filed the present appeal with the Court. ECF No. 1. The Parties consented to the jurisdiction of this Court on November 9, 2016. ECF No. 7. Both Parties have filed appeal briefs. ECF Nos. 12, 15. This case is now ripe for determination. 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 her appeal brief, Plaintiff raises three arguments for reversal: (1) the ALJ erred in not considering the opinion of her treating physician; (2) the ALJ erred by failing to follow the “complete hypothetical” posed to the VE; and (3) the ALJ erred by failing to properly evaluate her credibility. ECF No. 12 at 1-20. Because the Court finds the ALJ erred in evaluating Plaintiff’s subjective complaints, the Court will only consider Plaintiff’s third 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 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 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. 18-24). Indeed, although the ALJ recited she had properly evaluated Plaintiff’s subjective allegations, the ALJ truly only discounted Plaintiff’s subjective complaints because they were not supported by her 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 credible for the reasons explained in this decision. In terms of the claimant’s alleged severe impairments of degenerative joint disease, diabetes, and sleep disorders, the undersigned concludes that the objective medical evidence fails to support the claimant’s subjective complaints. . . . (Tr. 23) (emphasis added). Indeed, although the ALJ also referenced Plaintiff’s daily activities, those activities were not as extensive as the ALJ indicates. Those activities included doing normal household activities, but Plaintiff also reported she could not perform all the chores at once. (Tr. 22). Plaintiff reported she generally needed assistance at the grocery store and was only able to stand for about five minutes before having to sit down. (Tr. 22). These activities are certainly not extensive nor do they justify discounting Plaintiff’s alleged limitations resulting from degenerative joint disease, diabetes, restless leg syndrome, and sleep disorders. The Court finds the ALJ’s decision to discount Plaintiff’s subjective complaints without a 7 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 reasons 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 judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58. ENTERED this 31st day of October 2017. /s/ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE 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 disability determination, subject to this Court’s later review. 8