Johnson v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on August 16, 2016. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CHARLES LEWIS JOHNSON
Civil No. 1:16-cv-01006
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Charles Johnson (“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. 8.1 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 applications on July 27, 2010. (Tr. 11, 113-126).
In his applications, Plaintiff alleges being disabled due to low back problems. (Tr. 152). Plaintiff
alleges an onset date of April 30, 2008. (Tr. 214). These applications were denied initially and again
upon reconsideration. (Tr. 11, 42-61). Thereafter, Plaintiff requested an administrative hearing on
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.”
his denied applications, and this hearing request was granted. (Tr. 62).
Plaintiff’s initial administrative hearing was held on September 12, 2011. (Tr. 23-41). After
this hearing, on October 24, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s DIB
and SSI applications. (Tr. 11-18). Following this, on November 26, 2013, The United States
District Court for the Western District of Arkansas, Texarkana Division, remanded the case back to
the agency for further administrative proceedings. (Tr. 399-412).
Plaintiff’s second administrative hearing was held on May 8, 2014. (Tr. 345-379). Plaintiff
was present and was represented by counsel, Matt Golden, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Diane Smith testified at this hearing. Id. At this hearing, Plaintiff
testified he was forty-two (42) years old and graduated from high school. (Tr. 350).
After this hearing, on July 28, 2014, the ALJ entered an unfavorable decision denying
Plaintiff’s DIB and SSI applications. (Tr. 330-339). In this decision, the ALJ found Plaintiff met
the insured status requirements of the Act through December 31, 2012. (Tr. 332, Finding 1). The
ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 30,
2008, his alleged onset date. (Tr. 332, Finding 2).
The ALJ determined Plaintiff had the following severe impairments: degenerative changes
to the lumbar spine with radiculopathy and obesity. (Tr. 333, Finding 3). However, 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. 333,
In his decision, the ALJ indicated he evaluated Plaintiff’s subjective complaints and
determined his Residual Functional Capacity (“RFC”). (Tr. 333-337, Finding 5). First, the ALJ
indicated he evaluated Plaintiff’s subjective complaints and found his claimed limitations were not
entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC for sedentary work,
except he requires the ability to stand for ten minutes in his immediate work area without interfering
with the work process after sitting for 45 minutes; cannot engage in more than occasional stooping,
bending, crouching, crawling, kneeling, or balancing; could not perform work that required climbing
of ropes, ladders, or scaffolds; and is limited to work that is simple, routine, repetitive, and with
supervision that is simple direct and concrete. (Tr. 333-334).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff unable to
perform any PRW. (Tr. 337, Finding 6). The ALJ, however, also determined there was other work
existing in significant numbers in the national economy Plaintiff could perform. (Tr. 338, Finding
10). The ALJ based this 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 table worker with 2,500 such jobs
in the region and 300,000 such jobs in the nation and bonder with 2,500 such jobs in the region and
20,000 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 April 30, 2008, through the date of the decision.
(Tr. 338, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 326). On December 2, 2015, the Appeals Council denied this request for review. (Tr.
1-4). Plaintiff then filed the present appeal on February 1, 2016. ECF No. 1. The Parties consented
to the jurisdiction of this Court on February 24, 2016. ECF No. 8. This case is now ready for
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 argues the ALJ erred by (1) failing to give proper weight to the
opinions of his treating physician, and (2) failing to give credibility to his allegations of pain. ECF
No. 13 at 9-11. Upon review of this claim, the Court agrees with Plaintiff and finds the ALJ
improperly evaluated Plaintiff’s subjective complaints. Accordingly, the Court will only address this
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;
(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
Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 r equire 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.
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. Instead of
complying with Polaski and considering the Polaski factors, the ALJ only focused on Plaintiff’s
medical records and the opinions of Plaintiff’s treating physicians. (Tr. 334-337). First, the ALJ
summarized Plaintiff’s medical records. Id. In summarizing those records, the ALJ then found the
following: “Medically, the claimant’s physical impairments do not appear to prevent him from
working“ (Tr. 336), and “Additionally, the objective findings in his medical records do not support
the alleged severity of his impairments . . . ” (Tr. 337). The ALJ also provided an entirely unhelpful
and conclusory reason for discounting Plaintiff’s subjective complaints:
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 credible for the
reasons explained in this decision.
Notably, the only Polaski factor the ALJ even referenced was Plaintiff’s daily activities. (Tr.
336). The ALJ discounted Plaintiff’s physical impairments because he found Plaintiff could tend
to personal care, wash laundry, prepare meals, and ride in a car. Id. These hardly seem to be
inconsistent with Plaintiff’s alleged impairments.
Accordingly, the Court finds the ALJ’s decision to discount Plaintiff’s subjective complaints
without a sufficient basis was improper under Polaski. See Polaski, 739 F.2d at 1322 (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 no valid reason for discounting Plaintiff’s subjective complaints, this case must be reversed
Also, on remand the ALJ and Plaintiff should make additional effort to authenticate and
explain the deposition testimony of Dr. Shailesh Vora to determine how it relates to medical
evidence of record.
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 16th day of August 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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