Scott v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 18, 2013. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
ROBERT E. SCOTT, JR.
Civil No. 1:12-cv-01006
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Robert E. Scott, Jr. (“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 his
applications for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental
Security Income (“SSI”) under Titles II and XVI 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. 5.1 Pursuant to this authority, the Court issues this memorandum opinion and
orders the entry of a final judgment in this matter.
Plaintiff filed his DIB and SSI applications on August 3, 2010. (Tr. 13, 113-123). In his
applications, Plaintiff claims to be disabled due to degenerative disc disease, severe back pain, leg
numbness, two heart attacks, angina, cyclothymia, anxiety attacks, ADHD, depression, kidney
stones, and a mild stroke. (Tr. 135). Plaintiff alleges an onset date of September 1, 2005. (Tr.
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.”
13, 113, 120). These applications were denied initially and again upon reconsideration. (Tr. 50-53).
Thereafter, Plaintiff requested an administrative hearing on his applications, and this hearing
request was granted. (Tr. 69-85). Plaintiff’s administrative hearing was held on July 5, 2011 in El
Dorado, Arkansas. (Tr. 29-49). Plaintiff was present and was represented by Denver Thornton at
this hearing. Id. Plaintiff and Vocational Expert (“VE”) Dwight Turner testified at this hearing. Id.
As of the date 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) (2008) (DIB) and 20 C.F.R. § 416.963(c) (2008) (SSI). (Tr.
31-32). As for his level of education, Plaintiff testified he had completed high school and obtained
his CDL license. (Tr. 32).
On November 15, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s
applications for DIB and SSI. (Tr. 10-23). In this decision, the ALJ determined Plaintiff met the
insured status requirements of the Act through December 31, 2008. (Tr. 15, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since his alleged onset
date of September 1, 2005. (Tr. 15, Finding 2). The ALJ determined Plaintiff had the following
severe impairments: hypertension, coronary artery disease (CAD) with status post myocardial
infarction; degenerative changes of the lower thoracic and lumbar spine; obesity; mood disorder; and
a cyclothymic disorder. (Tr. 15-16, Finding 3). The ALJ also determined Plaintiff’s 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. 16-17, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 17-21, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found his
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
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b), reduced by the ability to perform work where
interpersonal contact is incidental to the work performed; where complexity of tasks
is learned and performed by rote, with few variables and little judgment; and where
the supervision required is simple, direct and concrete.
Id. Pursuant to 20 C.F.R. § 404.1567(b) (DIB) and 20 C.F.R. § 416.967(b) (SSI), “light work”
includes the following:
(b) Light work. Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or she can also
do sedentary work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
See 20 C.F.R. § 404.1567(b) (2012), 20 C.F.R. § 416.967(b) (2010).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 21, Finding 6). Based
upon the VE’s testimony at the administrative hearing in this matter, the ALJ determined Plaintiff’s
PRW was performed “at the medium exertional level, or higher.” (Tr. 21). Because the ALJ
determined Plaintiff only retained the RFC for light work, the ALJ found Plaintiff was precluded
from performing any of his PRW. Id. The ALJ then determined whether Plaintiff retained the
capacity to perform other work existing in significant numbers in the national economy. (Tr. 22-23).
The VE testified at the administrative hearing regarding this issue. (Tr. 22-23, 45-49). Based upon
that testimony, the ALJ determined Plaintiff retained the capacity to perform representative
occupations such as machine tender or light bulb assembler with 90,000 such jobs in Arkansas and
1,000,000 such jobs in the nation and plumbing hardware assembler with 200,000 such jobs in
Arkansas and 1,000,000 such jobs in the nation. (Tr. 22). Because Plaintiff retained the capacity
to perform this other work, the ALJ determined Plaintiff had not be under a disability as defined in
the Act from September 1, 2005 through the date of the ALJ’s decision or through November 15,
2011. (Tr. 23, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 7-8). On January 25, 2012, the Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On February 3, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on February 7, 2012. ECF No. 5. Both Parties have filed
appeal briefs. ECF Nos. 7,9. This case is now ready for decision.
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 his appeal brief, Plaintiff claims the following: (1) the ALJ did not appreciate the nature
and extent of his impairments; (2) the ALJ did not consider his impairments in combination; (3) the
ALJ performed an inadequate Polaski evaluation; (4) the ALJ improperly determined he retained the
RFC for light work with modification; and (5) the ALJ provided an improper hypothetical to the VE.
ECF No. 7. Because this Court agrees with Plaintiff’s third argument and finds the ALJ improperly
performed a Polaski evaluation and improperly discounted his subjective complaints, this Court will
only address the third 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. § 416.929.2 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
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.
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 Polaski and did not give sufficient reasons
for discounting Plaintiff’s subjective complaints. (Tr. 17-21). In his opinion, the ALJ properly
stated the Polaski factors and provided a concise summary of Plaintiff’s subjective complaints. Id.
However, upon review of the ALJ’s analysis, the ALJ actually only discounted Plaintiff’s subjective
complaints because they were not supported by his medical records. Id. Indeed, the ALJ provided
no meaningful consideration of any of the Polaski factors and instead stated the following:
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 credible only to the extent they
are consistent with the medical evidence and the residual functional capacity set forth
above, in finding number 5.
The ALJ’s failure to actually consider the Polaski factors, failure to provide any
inconsistencies between Plaintiff’s subjective complaints and the record, and his reliance on
Plaintiff’s medical records alone was in error. See Polaski, 739 F.2d at 1322. Accordingly, this case
must be reversed and remanded for further consideration of Plaintiff’s subjective complaints in
accordance with Polaski.
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 18th day of February 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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.
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