Posey v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 23, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
GLEN P. POSEY
Civil No. 2:11-cv-02100
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Glen P. Posey (“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 protectively filed his disability applications on November 14, 2008. (Tr. 9, 125-
132). Plaintiff claims to be disabled due to lower back problems, “nerves,” depression, ulcers, and
fatigue. (Tr. 155). Plaintiff alleges these illnesses, injuries, and conditions limit him the following
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.”
Because of my lower back I can’t stand very long, my legs hurt if I stand too long.
Because of not being able to get a job my nerves are real bad, I have problems with
ulcers–made me pass out at the wheel. I get depressed real easy.
(Tr. 155). Plaintiff alleges an onset date of October 22, 2008. (Tr. 125, 129, 155). These
applications were denied initially and again upon reconsideration. (Tr. 64-67).
Thereafter, Plaintiff requested an administrative hearing on his applications, and this hearing
request was granted. (Tr. 82-84, 87-120). Plaintiff’s administrative hearing was held on December
2, 2009 in Fort Smith, Arkansas. (Tr. 23-63). Plaintiff was present and was represented by Matthew
Ketcham at the hearing in this matter. Id. Plaintiff and Vocational Expert (“VE”) Dale Thomas
testified at this hearing. Id.
On March 25, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s applications
for DIB and SSI. (Tr. 9-18). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2013. (Tr. 11, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since October 22, 2008, his
alleged onset date. (Tr. 11, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: back disorder and mood disorder. (Tr. 11, 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. 11-13, Finding 4).
The ALJ determined Plaintiff was forty-six (46) years old on his alleged disability onset date.
(Tr. 16, Finding 7). Such an individual is defined as a “younger person” under 20 C.F.R. §
404.1563(c) (2012) (DIB) and 20 C.F.R. § 416.963(c) (2010) (SSI). Id. Further, the ALJ determined
Plaintiff had a marginal education but was able to communicate in English. (Tr. 16, Finding 8).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 13-16, 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) except that he can occasionally climb, balance,
stoop, kneel, crouch, and crawl. The claimant can understand, remember, and carry
out simple, routine, and repetitive tasks. He can respond appropriately to
supervision, co-workers, and usual work situations, but he can have only occasional
contact with the general public.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was unable
to return to any of his PRW. (Tr. 16, Finding 6). The ALJ, however, also evaluated whether there
was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr.
16-17, Finding 10). The VE testified at the administrative hearing regarding this issue. (Tr. 59-62).
Based upon that testimony, the ALJ determined a hypothetical person with Plaintiff’s limitations
could perform representative occupations such as a bench assembler with 300,000 such jobs in the
national economy and 6,300 such jobs in Arkansas; maid with 280,000 such jobs in the national
economy and 2,500 such jobs in Arkansas; and meat cutter with 44,000 such jobs in the national
economy and 5,000 such jobs in Arkansas. (Tr. 17). Because Plaintiff could perform other work,
the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from October
22, 2008 through the date of his decision or through March 25, 2010. (Tr. 17, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 4-5). See 20 C.F.R. § 404.968 (2011). The Appeals Council declined to review this
unfavorable decision. (Tr. 1-3). On June 1, 2011, Plaintiff filed the present appeal. ECF No. 1. The
Parties consented to the jurisdiction of this Court on June 8, 2011. ECF No. 5. Both Parties have
filed appeal briefs. ECF Nos. 11-12. 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 raises the following four claims: (1) the ALJ erred in evaluating
his severe impairments; (2) the ALJ failed to develop the record as to his RFC; (3) the ALJ erred in
assessing his credibility; and (4) the ALJ failed to fairly and adequately develop the record in this
case. ECF No. 11. Because this Court agrees with Plaintiff’s third argument and finds the ALJ
improperly evaluated his subjective complaints, this Court will only address the third issue Plaintiff
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 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.
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. Instead of
evaluating the Polaski factors and noting inconsistencies between Plaintiff’s subjective complaints
and the evidence in the record, the ALJ merely summarized the medical records and stated the
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 credible to the extent they
are inconsistent with the above residual functional capacity assessment.
(Tr. 13-14). In discounting Plaintiff’s subjective complaints, the ALJ should have considered more
than the medical evidence. The ALJ should have also evaluated the Polaski factors. See Polaski,
739 F.2d at 1322. Thus, this case must be reversed and remanded for further consideration
consistent with the requirements of Polaski.3
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 23rd day of May 2012.
/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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