West v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION Signed by Honorable Barry A. Bryant on June 28, 2012. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
EDWARD WEST
vs.

PLAINTIFF
Civil No. 2:11-cv-02099

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Edward West (“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
Supplemental Security Income (“SSI”) and a period of disability under Title 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 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.
1. Background:
Plaintiff filed an application for disability benefits on July 24, 2008. (Tr. 10, 103-105).
Plaintiff alleged he was disabled due to osteoporosis and back and hip pain. (Tr. 117). Plaintiff
alleged an onset date of July 1, 2008. (Tr. 118). This application was denied initially and again on
reconsideration. (Tr. 60-63, 69-70).

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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.”

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Thereafter, Plaintiff requested an administrative hearing on his application, and this hearing
request was granted. (Tr. 71-73). This hearing was held on November 24, 2009 in Fort Smith,
Arkansas. (Tr. 23-54). Plaintiff was present and was represented by counsel, Abby Rice, at this
hearing. Id. Plaintiff and Vocational Expert (“VE”) Dale Thomas, testified at this hearing. Id. On
the date of this hearing, Plaintiff was forty-two (42) years old, which is defined as a “younger person”
under 20 C.F.R. § 404.1563(c) (2008), and had an eighth grade education.

(Tr. 29).

On April 2, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application for
SSI. (Tr. 10-18). In this decision, the ALJ determined Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since July 24, 2008, his alleged onset date. (Tr. 12, Finding 1). The ALJ determined
Plaintiff had the severe impairments of degenerative disc disease, osteopenia, osteoarthritis, and a
tick-borne illness, either Rocky Mountain Spotted Fever or Lyme Disease. (Tr. 12, Finding 2). The
ALJ also determined, however, that Plaintiff did not have an impairment or a combination of
impairments that met or medically equaled one of the listed impairments in the Listing of Impairments
in Appendix 1 to Subpart P of Regulations No. 4 and No. 16 (“Listings”). (Tr. 12, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 13-17, Finding 4). The ALJ indicated she evaluated Plaintiff’s subjective complaints and found
his claimed limitations were not fully credible. (Tr. 14). The ALJ also determined, based upon her
review of Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record, that
Plaintiff retained the RFC to perform sedentary work except that he could not engage in sustained
driving as part of his work, could not climb ladders, ropes, or scaffolds and could not work near
unprotected heights and dangerous equipment or machines, could only occasionally stoop, bend,
crouch, crawl, kneel, balance, and climb ramps and stairs, and could only work in routine and

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repetitive jobs that have non-complex, simple instructions, that involve few variables and little
judgment, that are learned by rote, that have superficial contact incidental to the work involved with
coworkers and the public, and that have concrete, direct, and specific supervision. (Tr. 13, Finding
4).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17). The ALJ found Plaintiff
was unable to perform his PRW. (Tr. 17, Finding 5). The ALJ did, however, find Plaintiff retained
the ability to perform other work existing in significant numbers in the national economy. (Tr. 17-18,
Finding 9). The ALJ based this finding upon the testimony of the VE. Id. Specifically, the VE
testified in response to a question from the ALJ that a hypothetical individual with Plaintiff’s
limitations retained the ability to perform work as a production worker with 1,500 such jobs in the
Arkansas and 106,000 in the national economy and credit authorizer with 200 such jobs in the
Arkansas and 48,000 in the national economy. Id. The ALJ then determined Plaintiff had not been
under a disability, as defined by the Act, at anytime through the date of his decision. (Tr. 18, Finding
10).
Thereafter, Plaintiff requested that the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 6). See 20 C.F.R. § 404.968. On April 5, 2011, the Appeals Council declined to review this
unfavorable decision. (Tr. 1-5). On June 1, 2011, Plaintiff filed the present appeal. ECF No. 1. Both
parties have filed appeal briefs. ECF Nos. 7, 8. 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) (2010);
Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than a

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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
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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).
3. Discussion:
In his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 7. Specifically, Plaintiff claims the following: (1) the ALJ
erred in failing to find Plaintiff’s neuropathy to be severe, (2) the ALJ erred in her RFC determination,
and (3) the ALJ improperly discounted his subjective complaints. ECF No. 7 at 7-16. In response,
the Defendant argues the ALJ did not err in any of her findings. ECF No. 8.
After reviewing Plaintiff’s argument in the briefing and the opinion by the ALJ, this Court
finds the ALJ did not fully consider Plaintiff’s subjective complaints as required by Polaski v. Heckler,
739 F.2d 1320 (8th Cir. 1984). Thus, 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

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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.

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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 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 20 C.F.R. § 416.929 had been considered (Tr. 13), a review of the ALJ’s
opinion shows that instead of evaluating these factors and noting inconsistencies between Plaintiff’s
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subjective complaints and the evidence in the record, the ALJ merely reviewed the medical records
and recognized the proper legal standard for assessing credibility.3 The ALJ made no 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
performed.4
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 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 28th day of June 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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The ALJ also did not even specifically reference the Polaski factors which, although not required, is the
preferred practice. See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007).
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Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
this appeal.

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