Campbell v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 12, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 2:11-cv-02167
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Robert Campbell (“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 Disability
Insurance Benefits (“DIB”) and a period of disability 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. 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 an application for disability benefits on January 26, 2010. (Tr. 12, 121-127). Plaintiff
alleged he was disabled due to arthritis, fibromyalgia, depression, and hypertension. (Tr. 165). Plaintiff
alleged an onset date of November 30, 2008, which was later amended to July 1, 2009. (Tr. 12). This
application was denied initially and again on reconsideration. (Tr. 64-72).
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.”
Thereafter, Plaintiff requested an administrative hearing on his application, and this hearing request
was granted. (Tr. 73-74). This hearing was held on April 28, 2011 in Fort Smith, Arkansas. (Tr. 23-54).
Plaintiff was present and was represented by counsel, Fred Caddell, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Monty Lumpkin, testified at this hearing. Id. On the date of this hearing,
Plaintiff was forty-six (46) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c)
(2008), and had an eleventh grade education. (Tr. 30).
On May 20, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s application for DIB.
(Tr. 12-21). In this decision, the ALJ determined Plaintiff had not engaged in Substantial Gainful Activity
(“SGA”) since July 1, 2009, his alleged onset date. (Tr. 14, Finding 2). The ALJ determined Plaintiff had
the severe impairments of fibromyalgia, arthritis, chronic obstructive pulmonary disease (“COPD”),
essential hypertension, diabetic peripheral neuropathy, depression, anxiety, and substance abuse disorder
(alcoholism). (Tr. 14, Finding 3). 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. 14, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC. (Tr.
16-20, Finding 5). The ALJ indicated she evaluated Plaintiff’s subjective complaints and found his claimed
limitations were not fully credible. (Tr. 17). The ALJ also determined, based upon his review of Plaintiff’s
subjective complaints, the hearing testimony, and the evidence in the record, that Plaintiff retained the RFC
to perform range of sedentary work activity. (Tr. 16-20). The ALJ found Plaintiff limited to lifting and
carrying less than 10 pounds frequently and 10 pounds occasionally, sit for at least six hours, stand and
walk for two hours, occasionally climb stairs and ramps, balance, stoop, kneel, crouch and crawl, with no
climbing of ropes or ladders. The ALJ further found Plaintiff restricted from work with exposure to dust,
odors, chemicals and other pulmonary irritants or temperature extremes. The ALJ found Plaintiff could
perform work in which interpersonal contact is incidental to the work performed; complexity of tasks is
learned and performed by rote with few variables and use of little judgement; and the supervision required
is simple, direct and concrete. Finally, the ALJ found Plaintiff could have no contact with the general
public. (Tr. 16-20, Finding 5).2
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 20). The ALJ found Plaintiff was
unable to perform his PRW. (Tr. 20, Finding 6). The ALJ did, however, find Plaintiff retained the ability
to perform other work existing in significant numbers in the national economy. (Tr. 20-21, Finding 10).
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 lamp shade assembler, compact assembler, shoe buckler and lacer with 1,227 such jobs
in the Arkansas and 79,000 in the national economy, nut sorter, hand zipper trimmer, and ordinance check
weigher with 166 such jobs in the Arkansas and 13,063 in the national economy, and escort vehicle driver
with 664 such jobs in the Arkansas and 77,000 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. 21, Finding 11).
Thereafter, Plaintiff requested that the Appeals Council review the ALJ’s unfavorable decision. (Tr.
7-8). See 20 C.F.R. § 404.968. On August 26, 2011, the Appeals Council declined to review this
unfavorable decision. (Tr. 1-6). On September 9, 2011, Plaintiff filed the present appeal. ECF No. 1.
While the ALJ stated this as light work, this appears to be a typographical error based on the specific
limitations described. Also, the ALJ later described this correctly as sedentary work. (Tr. 19).
Both parties have filed appeal briefs. ECF Nos. 11, 12. 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 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 disability determination is not supported by substantial
evidence in the record. ECF No. 11. Specifically, Plaintiff claims the following: (1) the ALJ erred in his
RFC determination, and (3) the ALJ improperly discounted his subjective complaints. ECF No. 11 at 7-16.
In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 12.
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. § 416.929.3 See Shultz v.
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
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
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
In the present action, the ALJ did not perform a proper Polaski analysis. While the ALJ indicated
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.
the factors from 20 C.F.R. § 404.1529 had been considered (Tr. 16), a review of the ALJ’s opinion shows
that instead of evaluating these factors and noting inconsistencies between Plaintiff’s subjective complaints
and the evidence in the record, the ALJ merely reviewed the medical records and recognized the proper
legal standard for assessing credibility.4 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.5
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 12th day of July 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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).
Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
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