Turner v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 8, 2013. (mfr)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
Civil No. 1:12-cv-01003
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Alice Turner (“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 postjudgment proceedings. ECF No. 5.1 Pursuant to this authority, the Court issues this memorandum
opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed an application for DIB on December 9, 2009. (Tr. 45, 126-127).
Plaintiff alleged she was disabled due to bleeding eyes, diabetes, high blood pressure, and shoulder
pain. (Tr. 140). Plaintiff alleged an onset date of December 31, 2001. (Tr. 140). This application
was denied initially and again upon reconsideration. (Tr. 77-86). Thereafter, Plaintiff requested an
administrative hearing on her application and this hearing request was granted. (Tr. 87).
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.”
Plaintiff’s administrative hearing was held on September 17, 2010. (Tr. 59-76). Plaintiff was
present and was represented by counsel, Greg Giles, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Mack Welch testified at this hearing. Id. At the time of this hearing, Plaintiff was
forty-eight (48) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c),
and had a ninth grade education and was a licensed home health aid. (Tr. 62).
On October 27, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 45-54). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2006. (Tr. 47, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since December 31, 2006, her date
last insured. (Tr. 47, Finding 2).
The ALJ determined Plaintiff had the severe impairment of diabetes mellitus with associated
diabetic retinopathy, anemia, and hypertension. (Tr. 47, Finding 3). The ALJ also determined
Plaintiff’s impairments did not meet or medically equal the requirements of any of the Listing of
Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 48, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 49-52, Finding 5). First, the ALJ indicated he 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 light work except she was unable to climb and should avoid exposure
to unprotected heights. Id. The ALJ further found Plaintiff was able to work at “near acuity” and
had no restriction in her depth perception. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 52, Finding 6). The ALJ
determined Plaintiff was unable to perform her PRW as a home health aid. Id. The ALJ, however,
also determined there was other work existing in significant numbers in the national economy
Plaintiff could perform. (Tr. 52, Finding 10). The ALJ based his determination upon the testimony
of the VE. Id. Specifically, the VE testified that given all Plaintiff’s vocational factors, a
hypothetical individual would be able to perform the requirements of a representative occupation
such as a production helper with approximately 9,000 such jobs in Arkansas and 500,000 such jobs
in the nation. Id. Based upon this finding, the ALJ determined Plaintiff had not been under a
disability as defined by the Act from December 30, 2001 through the date of last insured or
December 21, 2006. (Tr. 53, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 4). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On January 19, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on January 30, 2012. ECF No. 5. Both Parties have filed appeal
briefs. ECF Nos. 8, 9. This case is now ready for decision.
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).
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).
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 8, Pg. 11-19. Specifically, Plaintiff claims the ALJ
erred (1) in his finding that Plaintiff did not meet Listing 9.08, (2) in failing to evaluate Plaintiff’s
pain associated with diabetic retinopathy, (3) in failing to properly evaluate the opinions of Plaintiff’s
physicians, (4) in the credibility determination of Plaintiff, and (5) in failing to fully develop
Plaintiff’s vocational profile. In response, the Defendant argues the ALJ did not err in any of his
findings. ECF No. 9. Because this Court finds the ALJ erred in the credibility determination of
Plaintiff, this Court will only address this issue.
In assessing the credibility of a claimant, the ALJ is required to examine and to apply the five
factors from Polaski v. Heckler or from 20 C.F.R. § 404.1529 and 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.
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.
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 perform a proper Polaski analysis. While the ALJ
indicated the factors from Polaski had been considered (Tr. 50), a review of the ALJ’s opinion shows
that instead of evaluating these factors and noting inconsistencies between Plaintiff’s subjective
complaints and the evidence in the record, the ALJ merely reviewed the medical records and
recognized the proper legal standard for assessing credibility.
Other than stating there was nearly an eight year gap between Plaintiff’s onset date and filing
date, the ALJ made no other specific findings regarding the inconsistencies between Plaintiff’s
claimed subjective complaints and the record evidence. The ALJ must make a specific credibility
determination, articulate the reasons for discrediting the Plaintiff’s testimony, and address any
inconsistencies between the testimony and the record. The ALJ failed to perform this analysis.
This lack of analysis is insufficient under Polaski, and this case should be reversed and
remanded for further consideration consistent with Polaski. Upon remand, the ALJ may still find
Plaintiff not disabled, however a proper and complete analysis pursuant to Polaski should be
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
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 8th day of February 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
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