Daniels v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on December 2, 2013. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
JIMMY RAY DANIELS
Civil No. 1:13-cv-01012
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Jimmy Ray Daniels (“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 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.
Plaintiff protectively filed his disability application on April 4, 2011. (Tr. 13, 151-161). In
his application, Plaintiff claims to be disabled due to “[n]eck surgery pinched nerve numbness in
eg/right side,” a pinched nerve, and numbness in legs and right side. (Tr. 164). Plaintiff alleges an
onset date of April 1, 2011. (Tr. 151). This application was denied initially and again upon
reconsideration. (Tr. 59-60). Thereafter, on August 19, 2011, Plaintiff requested an administrative
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.”
hearing, and this hearing request was granted. (Tr. 71-92).
Plaintiff’s administrative hearing was held on February 8, 2012 in Pine Bluff, Arkansas. (Tr.
24-58). Plaintiff was present at this hearing and was represented by counsel. Id. Plaintiff, Medical
Expert (“ME”) Dr. Howard H. McClure, Jr., and Vocational Expert (“VE”) Cynthia Parker testified
at this hearing. Id. As of the date of this hearing, Plaintiff was fifty (50) years old, which is defined
as a “person closely approaching advanced age” under 20 C.F.R. § 404.1563(d) (2008) (DIB). (Tr.
27). As for his level of education, Plaintiff testified he had graduated from high school. (Tr. 28).
On March 9, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 10-19). In this decision, the ALJ found Plaintiff met the insured status requirements
of the Act through December 31, 2015. (Tr. 15, Finding 1). The ALJ determined Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”) since April 1, 2011, his alleged onset date. (Tr.
15, Finding 2). The ALJ determined Plaintiff had the following severe impairments: non-insulin
diabetes, hypertension, status post cervical fusion in 2008, and chronic low back pain. (Tr. 15,
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. 15-16, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 16-18, 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, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)
in that he can lift and/or carry 20 pounds occasionally and 10 pounds frequently. He
can sit, stand and/or walk 6 hours in an 8 hour workday. The claimant is not limited
in pushing or pulling (including the operation of foot and/or hand controls) with the
upper and lower extremities. He has no postural, manipulative, visual,
communicative, and environment limitations.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was
unable to perform any of his PRW. (Tr. 18, Finding 6). The ALJ then determined whether a
hypothetical individual with Plaintiff’s limitations retained the capacity to perform other work
existing in significant numbers in the national economy. (Tr. 18-19, Finding 10). The VE testified
at the administrative hearing regarding this issue. Id.
Based upon this testimony, the ALJ determined Plaintiff retained the capacity to perform
representative occupations such as a laundry press operator with 200,000 such jobs in the United
States and 900 such jobs in Arkansas; bottling line attendant with 185,000 such jobs in the United
States and 450 such jobs in Arkansas; and small product assembler with 205,000 such jobs in the
United States and 800 such jobs in Arkansas. (Tr. 19). Because Plaintiff retained the capacity to
perform this other work, the ALJ determined Plaintiff had not been under a disability as defined in
the Act from his alleged onset date of April 1, 2011 through the date of his decision or through
March 9, 2012. (Tr. 19, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 7). On January 28, 2013, the Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On February 13, 2013, Plaintiff filed the present appeal. ECF No. 1. The
Parties consented to the jurisdiction of this Court on February 25, 2013. ECF No. 7. Both Parties
have filed appeal briefs. ECF Nos. 10, 12. 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 ALJ’s decision is not supported by substantial
evidence in the record. ECF No. 10. Specifically, Plaintiff claims the following: (1) the ALJ erred
by improperly discounting his subjective complaints; and (2) the ALJ erred by not considering the
opinions of his treating physicians. Id. Because the ALJ improperly evaluated Plaintiff’s subjective
complaints, the Court will only address his first 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
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;
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.
(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
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. (Tr. 16-18).
Indeed, the ALJ specifically disregarded Polaski by discounting Plaintiff’s subjective complaints
because they were not supported by his medical records. (Tr. 17-18). To justify his decision, the
ALJ only provided the following canned language:
After careful consideration of the evidence, I find 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 credible to the extent they are
inconsistent with the above residual functional capacity assessment.
The ALJ’s focus upon Plaintiff’s medical records alone was entirely inappropriate and
improper under Polaski. The Polaski factors should be considered so that the ALJ does not discount
the claimant’s subjective complaints based upon the medical records alone. See Polaski, 739 F.2d
at 1322 (holding “[t]he adjudicator may not disregard a claimant’s subjective complaints solely
because the objective medical evidence does not fully support them”). Accordingly, this case must
be reversed and remanded for further consideration of Plaintiff’s subjective complaints in accordance
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 2nd day of December 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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