IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION

KATHY MARSHALL PLAINTIFF

vs. Civil No. 2:21-cv-02104

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION DEFENDANT

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Kathy Marshall (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social Security Act (“The Act”),

(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. Pursuant to the provisions of

(b)(1) and (3) (2009), the Honorable P. K. Holmes, III 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 protectively filed her disability application on August 8, 2017. (Tr. 115).1 In her application, Plaintiff alleges being disabled due to fibromyalgia and degenerative disc disease. (Tr. 297). Plaintiff alleges an onset date of April 8, 2016. (Tr. 14). Her application was denied initially and again upon reconsideration. (Tr. 79-110).

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. 10. These references are to the page number of the transcript itself not the ECF page number.

1 Plaintiff requested an administrative hearing on her denied application, and this hearing request was granted. The ALJ held two administrative hearings, one on January 28, 2019, and one on March 26, 2020. (Tr. 30-78). At the more recent hearing held on March 26, 2020, in Hot Springs, Arkansas, Plaintiff was present and was represented by Vicki L. Bosch. (Tr. 55-78).

Plaintiff and Vocational Expert (“VE”) Larry L. Seifert, Ed.D. testified at this hearing.

At this hearing, Plaintiff testified she was fifty-eight (58) years old, which is defined as a “person of advanced age” under

(e) (2008). (Tr. 58). As for her education, Plaintiff testified she completed high school.

On September 14, 2020, after the administrative hearing, the ALJ entered an unfavorable decision denying Plaintiff’s disability application. (Tr. 11-24). The ALJ determined Plaintiff met the insured status requirements of Act through March 31, 2021. (Tr. 16, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 8, 2016, her alleged onset date. (Tr. 16, Finding 2). The ALJ determined Plaintiff had the following severe impairments: fibromyalgia, lumbar degenerative changes, arthritis, right middle trigger finger, and

obesity. (Tr. 17-18, Finding 3). The ALJ also determined 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. 18-19, Finding 4). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her Residual Functional Capacity (“RFC”). (Tr. 19-23, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found they were not entirely credible.

Second, the ALJ determined Plaintiff had the following RFC:

2 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 can occasionally climb ramps and stairs; can occasionally balance, stoop, kneel, crouch, and crawl; can occasionally be exposed to extreme cold and vibration; can frequently reach, handle, and finger; can never climb ladders, ropes or scaffolds; can never be exposed to unprotected heights or dangerous moving machinery.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 23, Finding 6). The AL determined that PRW included work as a retail salesperson and office clerk.

Considering her RFC, the ALJ determined Plaintiff retained the capacity to perform her PRW.

Because Plaintiff retained the capacity to perform her PRW, the ALJ determined Plaintiff had not been under a disability, as defined in the Act, at any time from her alleged onset date, April 8, 2016, through the date of his decision or through September 14, 2020. (Tr. 23, Finding 7). Plaintiff sought review with the Appeals Council. (Tr. 1-4). On March 31, 2021, the Appeals Council denied this request for review.

On May 27, 2021, Plaintiff filed a Complaint in this case. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 12, 15. 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

(g) (2010); Ramirez v. Barnhart,

(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,

(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 3 wouldhave supported a contrary outcome or because the Court would have decided the case differently. See Haley v. Massanari,

(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,

(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,

(8th Cir. 1998);

(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.”

(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

(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 4 can perform. See Cox,

;

(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

, 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. 12 at 1-20. In making this claim, Plaintiff raises four issues for reversal: (A) the ALJ erred by failing to fully and fairly develop the record; (B) the ALJ erred at Step Two of the Analysis; (C) the ALJ erred in assessing the credibility of her subjective complaints; and (D) the ALJ erred in the RFC assessment.

Upon review, the Court finds the ALJ’s credibility determination as a part of his RFC determination is not supported by substantial evidence in the record; thus, the Court will only consider Plaintiff’s third 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,

(8th Cir. 1984) or from

and

See Shultz v. Astrue,

(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

The ALJ is not required to methodically discuss each factor as long

2 Social Security Regulations

and

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,

(2007). Thus, this Court will not require the analysis of these additional factors in this case. 5 as the ALJ acknowledges and examines these factors prior to discounting the claimant’s subjective complaints. See Lowe v. Apfel,

(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,

(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,

. 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,

(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,

(8th Cir. 1991). In the present action, the ALJ did not comply with the requirements of Polaski. Instead, the ALJ based his credibility determination upon the fact Plaintiff’s subjective complaints were not supported by her medical records. (Tr. 19-23). In his opinion, the ALJ 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.

(Tr. 20). 6 The ALJ went even further to reinforce this finding by stating the following: After considering the evidence of record, including objective medical evidence, other medical evidence, and evidence from nonmedical sources, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to produce the alleged symptoms, but when considering the opinion evidence discussed above, as well as the combined effect of the severe impairments, the undersigned finds the claimant is able to perform fulltime work at the light exertional level with additional non-exertional limitations as described in the residual functional capacity above.

(Tr. 23) (emphasis added). Although he states he considered “evidence of record,” it is unclear what “evidence of record” he considered.3 Based upon this review, the Court finds the ALJ discounted Plaintiff’s subjective complaints based upon her medical records. See Polaski,

(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 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

(b)(1). The failure to file timely

3 Indeed, the Court has also reviewed Defendant’s appeal brief in this matter. See ECF No. 15. While Defendant claims the ALJ did properly consider the Polaski factors, Defendant was unable to provide any inconsistencies or findings from the ALJ’s actual opinion—apart from the medical records—that support a finding to discount Plaintiff’s allegations.

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,

(8th Cir. 1990). ENTERED this 1st day of November 2021.

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

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