Pierce v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on December 18, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
PATRICIA ANN PIERCE
vs.

PLAINTIFF
Civil No. 2:12-cv-02261

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Patricia Ann Pierce (“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 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. 7.1 Pursuant to this authority, the Court issues this
memorandum opinion and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff protectively filed an application for DIB on February 22, 2010. (Tr. 11, 96-102).
Plaintiff alleged she was disabled due to herniated disc in back, fluid retention, joint inflammation,
and high blood pressure. (Tr. 135). Plaintiff alleged an onset date of January 14, 2008. (Tr. 136).
This application was denied initially and again upon reconsideration. (Tr. 46-47). Thereafter,
Plaintiff requested an administrative hearing on her application and this hearing request was granted.

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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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(Tr. 57).
Plaintiff’s administrative hearing was held on June 16, 2011. (Tr. 22-45). Plaintiff was
present and was represented by counsel, David Harp, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Sarah Moore testified at this hearing. Id. At the time of this hearing, Plaintiff was
fifty-five (55) years old, which is defined as a “person of advanced age” under 20 C.F.R. §
404.1563(e), and had a high school education with a GED. (Tr. 26).
On October 26, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 11-18). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2012. (Tr. 13, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since January 15, 2008. (Tr. 13,
Finding 2).
The ALJ determined Plaintiff had the severe impairment of degenerative disc disease of the
cervical spine, osteoarthritis/torn meniscus of the right knee, chronic low back pain, obesity,
peripheral edema and essential hypertension. (Tr. 13, Finding 3). The ALJ then determined
Plaintiff’s impairments did not meet or medically equal the requirements of any of the Listing of
Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 13-14, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 14-17). First, the ALJ indicated he 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 light work except she can only occasionally climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl, cannot climb ladders, ropes and scaffolds, and cannot perform
overhead work. (Tr. 14, Finding 5).

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The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17, Finding 6). The
ALJ found Plaintiff able to perform her PRW as a sorter and assembler. Id. Given this, the ALJ
determined Plaintiff had not been under a disability as defined in the Act from January 15, 2008
through the date of his decision. (Tr. 18, Finding 7).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 6). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On November 2, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on November 9, 2012. ECF No. 7. Both Parties have filed
appeal briefs. ECF Nos. 14, 15. 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)
(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).

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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).

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3. Discussion:
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 14, Pg. 7-13. Specifically, Plaintiff claims the ALJ
erred: (1) by failing to fully developing the record, (2) in the credibility determination of Plaintiff,
(3) in the RFC determination of Plaintiff, (4) in failing to give proper treatment to the opinions of
Plaintiff’s treating physician, and (5) in finding Plaintiff could perform her PRW. Id. In response,
the Defendant argues the ALJ did not err in any of his findings. ECF No. 15.
A. Credibility Determination
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
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

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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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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 Polaski had been considered (Tr. 17), 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. In his opinion, the ALJ only made the
following perfunctory statement regarding 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 credible to the extent they
are inconsistent with the above residual functional capacity assessment.
(Tr. 15).
In briefing this matter, Defendant references several factors that could have been significant
and that do support the ALJ’s credibility determination. ECF No. 15 at 9-12. The only problem is
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that the ALJ did not actually state those factors in his decision. This analysis and these factors only
appear in Defendant’s briefing in this matter. Such an attempt to bolster the ALJ’s credibility
determination after-the-fact is improper. Instead, the ALJ has the responsibility to state those factors
and inconsistencies in his opinion. See Baker, 159 F.3d at 1144.
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.
B. ALJ’s Treatment of Treating Physician Opinions
Social Security Regulations and case law state that a treating physician's opinion will be
granted “controlling weight,” provided it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
record.” See SSR 96-2p; Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000)(citing 20 C.F.R.
§ 404.1527(d)(2)). An ALJ is required to give good reasons for the particular weight given to a
treating physician’s evaluation. See Prosch, 201 F.3d at1013 (citing 20 C.F.R § 404.1527(d)(2), and
SSR 96-2p). An ALJ may disregard the opinion of a treating physician only where other medical
assessments “are supported by better or more thorough medical evidence,” or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions. Id. at 1013
(quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), and Cruze v. Chater, 85 F.3d 1320,
1324-25 (8th Cir. 1996)).
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Dr. Wendell Ross has been treating Plaintiff since 2008. (Tr. 197-198). On March 11, 2010,
Plaintiff was seen by Dr. Ross with complaints of back and neck pain. (Tr. 189-190). Plaintiff
indicated she stopped work due to the pain. Id. Plaintiff had limited range of motion in her neck and
back with pain and tenderness and a positive straight leg raise. Id. Plaintiff returned to Dr. Ross on
April 19, 2010. (Tr. 185-186). Plaintiff continued to have neck and back pain. Id. Dr. Ross ordered
an MRI exam which showed a central disc protrusion at C4-5 and small protrusion at C5-6. (Tr.
233).
On September 8, 2010, Dr. Ross prepared a medical source statement. (Tr. 244-246). Dr.
Ross indicated Plaintiff had severe limitations and was unable to work. Id. Dr. Ross found Plaintiff
could lift and carry less than five pounds, stand and walk less than two hours and sit for less than six
hours during an eight-hour workday. Id. Dr. Ross also indicated Plaintiff was limited in her ability
to push and pull with upper and lower extremities, and could not climb, balance, kneel, crouch, or
crawl. Id.
The ALJ stated he did not give significant weight to the opinions of Dr. Ross because his
conclusions were inconsistent with the medical record. (Tr. 16). Instead, the ALJ relied upon the
opinions of a one time medical examiner. (Tr. 17).
The ALJ has the responsibility to determine which findings are inconsistent and which
opinions should be given greater weight than other opinions. See Brown v. Astrue, 611 F.3d 941,
951-52. However, when an ALJ determines that a treating physician’s opinion should be discounted,
“he should give good reasons for doing so.” Id. (internal quotation and citation omitted). In this
matter, the ALJ’s complete lack of analysis and review certainly does not amount to “good reasons”
for discounting Dr. Ross’s findings. See Brown, 611 F.3d at 951-52. The ALJ has completely failed
to discuss and analyze the opinions of Dr. Ross other than to say they are inconsistent with the
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medical record.
Substantial evidence does not support the ALJ’s decision of Plaintiff being not disabled
because the ALJ failed to properly analyze the opinions of Plaintiff’s treating physician, Dr. Ross.
Because the ALJ did not properly review the opinions of Plaintiff’s treating physician, this case
should be reversed and remanded for proper review and analysis of these opinions.
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 18th day of December 2013.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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