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

CALVIN L. SAMPLEY PLAINTIFF

vs. Civil No. 2:21-cv-02157

KILOLO KIJAKAZI DEFENDANT Acting Commissioner, Social Security Administration

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Calvin L. Sampley (“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 his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI 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 filed his disability applications on March 27, 2019. (Tr. 10). Plaintiff alleged disability due to seizures, anxiety, heart condition, neuropathy, and memory loss. (Tr. 250).1 His applications were denied initially and again upon reconsideration. (Tr. 10).

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. 11. These references are to the page number of the transcript itself and not the ECF page number. 1 Plaintiff requested an administrative hearing on his denied applications, and this hearing request was granted. (Tr. 161-177). A hearing was held on August 21, 2020. (Tr. 37-69). At this hearing, Plaintiff was present and represented by counsel, Laura McKinnon.

Plaintiff and Vocational Expert, (“VE”) Jim Spragins testified at this hearing.

On December 7, 2020, after the administrative hearing, the ALJ entered a fully unfavorable decision denying Plaintiff’s disability applications. (Tr. 10-25). In this decision, the ALJ determined Plaintiff last met the insured status requirements of the Act through December 31, 2018. (Tr. 13, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since February 22, 2018. (Tr. 13, Finding 2). The ALJ determined Plaintiff had the following severe impairments: epilepsy, peripheral neuropathy, cardiac dysrhythmias, degenerative disc disease, depressive disorder, and anxiety disorder. (Tr. 13, Finding 3). The ALJ then 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. 14, Finding 4).

In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his Residual Functional Capacity (“RFC”). (Tr. 16-23, Finding 5). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found they were not entirely credible.

Second, the ALJ determined Plaintiff had the RFC to perform a reduced range of sedentary work.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 23, Finding 6). The ALJ determined Plaintiff was unable to perform his PRW.

However, the ALJ found there were jobs in the significant numbers in the national economy that Plaintiff could perform. (Tr. 24, Finding 10). With the help of the VE, the ALJ found Plaintiff could perform the representative

2 occupations of (1) document preparer with approximately 18,900 jobs in the nation, (2) copy examiner with approximately 8,500 jobs in the nation, and (3) cutter/paster with approximately 11,700 jobs in the nation.

Based upon this finding, the ALJ determined Plaintiff had not been disabled from February 22, 2018, through the date of the decision. (Tr. 25, Finding 11).

Plaintiff sought review with the Appeals Council. (Tr. 1-6). The Appeals Council denied this request.

On September 29, 2021, Plaintiff filed a Complaint in this case. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 13, 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 would have 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 3 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 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 his appeal brief, Plaintiff claims the ALJ’s decision is not supported by substantial evidence in the record. ECF No. 13 at 5-18. Specifically, Plaintiff raises the following arguments 4 for reversal: (1) the ALJ failed to fully and fairly develop the record, (2) the ALJ erred in considering his subjective complaints of pain, (3) the ALJ erred at Step 2, and (4) the ALJ erred in the RFC determination.

Upon review, the Court finds the ALJ did not fully consider his subjective complaints when evaluating his disability. Accordingly, 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,

(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 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.

1 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 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 almost entirely upon the fact that Plaintiff’s subjective

complaints were not supported by his medical records. (Tr. 17-23). 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 for the reasons explained in this decision. (Tr. 18). Indeed, although the ALJ referenced “other evidence,” he did not provide what that “other evidence” was, apart from Plaintiff’s medical records. 6 Based upon this review, the Court finds the ALJ’s assessment of Plaintiff’s subjective complaints was improper. 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 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

(b)(1). The failure to file timely 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 11th day of January 2023.

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

7