McLemore v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 18, 2014. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
RODNEY D. MCLEMORE
vs.

PLAINTIFF
Civil No. 2:13-cv-02062

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Rodney D. McLemore (“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 a period of disability and Disability Insurance Benefits (“DIB”) 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 his disability application on December 22, 2010. (Tr. 127-128).

In his application, Plaintiff claims to be disabled due to the following: back injury, neck injury,
diabetes, high blood pressure, obesity, and depression. (Tr. 151). Plaintiff alleges an onset date of
January 24, 2010. (Tr. 127). This application was denied initially and again upon reconsideration.
(Tr. 71-72). Thereafter, on June 15, 2011, Plaintiff requested an administrative hearing on his

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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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application, and this hearing request was granted. (Tr. 81-92).
Plaintiff’s administrative hearing was held on November 22, 2011 in Fort Smith, Arkansas.
(Tr. 30-70). Plaintiff was present at this hearing and was represented by Davis Duty. Id. Plaintiff
and Vocational Expert (“VE”) Sarah Moore testified at this hearing. Id. As of the date of this
hearing, Plaintiff was forty-one (41) years old, which is defined as a “younger person” under 20
C.F.R. § 404.1563(c) (2008) (DIB). (Tr. 36). As for his level of education, Plaintiff also testified
he had only completed the seventh grade in school. (Tr. 38).
On December 15, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB. (Tr. 13-25). In this decision, the ALJ found Plaintiff met the insured status
requirements of the Act through December 31, 2013. (Tr. 17, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since January 24, 2010, his
alleged onset date. (Tr. 17, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: chronic back and neck pain (degenerative disc disease of the cervical spine and C3-4
and C4-5 level osteophytes); obesity; diabetes mellitus; essential hypertension; an adjustment
disorder with mixed disturbance of emotion and conduct; pain disorder; and a personality disorder.
(Tr. 18, 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. 18-20, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 20-23, 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:

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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). Specifically, he can lift/carry 10 pounds frequently and 20 pounds
occasionally, stand/walk 6 hours in an 8-hour day, and sit 6 hours in an 8-hour day.
He can occasionally stoop, kneel, crouch, and crawl, but never climb ropes, ladders
and scaffolds. He cannot work at unprotected heights or around dangerous moving
machinery. Nonexertionally, the claimant can perform simple, one to three step,
procedures that are routine and repetitive without frequent changes in duties and is
limited to occasional contact with the general public.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 23-24, Finding 6).
Considering his RFC, the ALJ determined Plaintiff did not retain the capacity to perform any of his
PRW. Id. The ALJ then considered whether Plaintiff retained the capacity to perform other work
existing in significant numbers in the national economy. (Tr. 24-25, Finding 10). The VE testified
at the administrative hearing regarding this issue. Id. Based upon that testimony, the ALJ
determined Plaintiff retained the capacity to perform the following representative occupations:
1.

Assembler (light, unskilled) with a representative occupation having 108,500
such jobs nationwide and 950 such jobs statewide;

2.

Machine tender (light, unskilled) with a representative occupation having
85,900 such jobs nationwide and 1,200 such jobs statewide; and

3.

Inspector or tester (light, unskilled) with a representative occupation having
69,800 such jobs nationwide and 1,000 such jobs statewide.

(Tr. 24). 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 January 24, 2010 through the
date of his decision or through December 15, 2011. (Tr. 25, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 10-12). On January 25, 2013, the Appeals Council declined to review this
unfavorable decision. (Tr. 1-3). On March 5, 2013, Plaintiff filed the present appeal. ECF No. 1.
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The Parties consented to the jurisdiction of this Court on March 11, 2013. ECF No. 7. Both Parties
have filed appeal briefs. ECF Nos. 12-13. 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).
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

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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).
3.

Discussion:
In his appeal brief, Plaintiff raises the following arguments for reversal: (1) the ALJ did not

fully and fairly develop the record; (2) the ALJ erred in evaluating the severity of his impairments;
(3) the ALJ improperly evaluated his RFC; and (4) the ALJ erred in finding he could perform the
jobs identified at Step Five of the Analysis. ECF No. 12 at 1-17. In response, Defendant argues the
ALJ fully and fairly developed the record in this case, the ALJ properly evaluated the severity of
Plaintiff’s impairments, the ALJ properly assessed Plaintiff’s RFC, the ALJ properly assessed
Plaintiff’s credibility, and the ALJ properly supported his decision at Step Five of the Analysis. ECF

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No. 13 at 1-20. Because the ALJ improperly evaluated Plaintiff’s subjective complaints, the Court
will only address Plaintiff’s third argument for reversal.
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
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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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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 disregarded the requirements of Polaski. (Tr. 20-23). As an
initial matter, the ALJ did not specifically reference the Polaski factors. Id. Although this is the
“preferred practice,” a specific reference to the Polaski factors is not required. See Schultz v. Astrue,
479 F.3d 979, 983 (8th Cir. 2007). However, what the ALJ was required to do was to at least give
some consideration to Plaintiff’s subjective complaints and not entirely discount them because they
were not supported by his objective medical records. See Polaski, 739 F.2d at 1322 (holding “[t]he
adjudicator may not disregard a claimant’s subjective complaints solely because the objective
medical evidence does not fully support them”).
In her appeal brief, Defendant claims the ALJ did comply with Polaski and did properly
consider–and discount–Plaintiff’s subjective complaints. ECF No. 13 at 14-19. In making this
argument, Defendant provided several valid reasons for discounting Plaintiff’s subjective
complaints. Id. However, these were not the reasons the ALJ gave for discounting Plaintiff’s
subjective complaints. (Tr. 20-23). Instead, the ALJ entirely focused on Plaintiff’s medical records
and stated the following in deciding to discount Plaintiff’s subjective complaints of physical pain
and discomfort:
After carefully considering the entire record in this matter, including the testimony
of the claimant, the undersigned concludes that the claimant retains the residual
functional capacity to perform a range of “light” work. Notably, x-rays of the
claimant’s neck showed only soft tissue injury with muscle spasm. In light of these
findings, the undersigned concludes that the claimant’s complaints are far out of
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proportion to the alleged trauma and thus, are not generally credible and are given
little weight. Specifically, the claimant’s chiropractor assigned the claimant little
significant pathology of back and neck. Further, the claimant’s alleged intensity and
persistence of pain was not consistent with medical records, signs, and laboratory
findings, or with the medical evidence as a whole. . . .
(Tr. 23) (emphasis added).

This was entirely inappropriate and improper under Polaski.

Accordingly, this case must be reversed and remanded for further consideration of Plaintiff’s
subjective complaints in accordance with Polaski.
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.3 A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 18th day of February 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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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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