Coletta v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 17, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 2:12-cv-02178
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Thelma Coletta (“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 her 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. 3.1
Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final
judgment in this matter.
Plaintiff filed her disability applications on July 6, 2009. (Tr. 20, 127-135). In her
applications, Plaintiff claims to be disabled due to lupus, thyroid problems, and back problems. (Tr.
171). Specifically, Plaintiff claims these impairments impact her in the following ways: “I cannot
move, I am in pain due to swore [sore] joints and bones.” Id. Plaintiff alleges an onset date of April
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.”
(Tr. 172, 127-135).
These applications were denied initially and again upon
reconsideration. (Tr. 73-76). Thereafter, Plaintiff requested an administrative hearing on her
applications, and this hearing request was granted. (Tr. 91-112).
Plaintiff’s administrative hearing was held on June 29, 2010 in Fort Smith, Arkansas. (Tr.
32-72). Plaintiff was present at this hearing and was represented by Wayne Young. Id. Plaintiff and
Vocational Expert (“VE”) Dale Thomas testified at this hearing. Id. As of the date of this hearing,
Plaintiff was forty-seven (47) years old, which is defined as a “younger person” under 20 C.F.R. §
404.1563(c) (2008) (DIB) and 20 C.F.R. § 416.963(c) (2008) (SSI). (Tr. 37). As for her level of
education, Plaintiff testified she had completed the eleventh grade in school. Id.
On February 25, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s
applications for DIB and SSI. (Tr. 20-27). In this decision, the ALJ determined Plaintiff met the
insured status requirements of the Act through March 31, 2013. (Tr. 22, Finding 2). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 30, 2009,
her alleged onset date. (Tr. 22, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: degenerative disc disease of the lumbar spine status post two surgeries; systemic lupus
erythematosus; right carpal tunnel syndrome status post surgery; and hypothyroidism. (Tr. 22,
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. 22-23, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 23-25, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
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 sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a) except she may occasionally climb ramps and
stairs; she may not climb ladders, ropes, and scaffolds; she may only occasionally
balance, stoop, kneel, crouch, and crawl; she cannot perform overhead work with the
left dominant upper extremity; she can perform frequent but not constant reaching
in all other directions with the left dominate upper extremity; and she cannot perform
rapid repetitive flexion-extension of the right wrist.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was
unable to perform any of her PRW. (Tr. 25, Finding 6). The ALJ then determined whether a
hypothetical individual with Plaintiff’s limitations retains the capacity to perform other work existing
in significant numbers in the national economy. (Tr. 25-26, Finding 10). The VE testified at the
administrative hearing regarding this issue. (Tr. 26). Based upon this testimony, the ALJ determined
Plaintiff retained the capacity to perform representative occupations such as patcher (unskilled,
sedentary) with 1,500 such jobs in Arkansas and 15,500 such jobs in the national; call out operator
(unskilled, sedentary) with 75 such jobs in Arkansas and 16,000 such jobs in the nation; and charge
account clerk (unskilled, sedentary) with 500 such jobs in Arkansas and 37,000 such jobs in the
nation. (Tr. 26). 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 her alleged onset date
or from April 30, 2009 through the date of the ALJ’s decision or through February 25, 2011. (Tr.27,
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 16). On June 14, 2012, the Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On August 8, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on October 16, 2012. ECF No. 3. Both Parties have filed
appeal briefs. ECF Nos. 6-7. 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 her appeal brief, Plaintiff claims the ALJ’s decision is not supported by substantial
evidence in the record. ECF No. 6. Specifically, Plaintiff claims the ALJ erred by mischaracterizing
her medical evidence and by performing an improper Polaski evaluation. Id. Because the Court
agrees with Plaintiff’s argument that the ALJ improperly performed a Polaski evaluation, the 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, 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
whether the pain a Plaintiff experiences precludes the performance of substantial gainful activity.
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.
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. 23-25).
Specifically, the ALJ discussed Plaintiff’s subjective complaints and then discounted those
complaints because they were inconsistent with the “objective medical evidence.” Id. Notably, the
ALJ made the following finding:
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. 25). The ALJ’s decision to discount Plaintiff’s claims regarding her limitations based upon her
objective medical records alone was in error and in violation of Polaski. See Polaski, 739 F.2d at
1322. Accordingly, this case must be reversed and remanded for further consideration of Plaintiff’s
subjective complaints in accordance with Polaski.
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 17th day of May 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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