McClure v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 16, 2015. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JOHNNY MCCLURE
vs.

PLAINTIFF
Civil No. 2:14-cv-02076

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Johnny McClure (“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
Supplemental Security Income (“SSI”) under Title 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.
1.

Background:
Plaintiff filed his disability application on July 24, 2012. (Tr. 12). In his application,

Plaintiff alleges being disabled due to a back injury, sleep apnea, a “spastic colon,” and high blood
pressure. (Tr. 148). Plaintiff alleges an onset date of June 28, 2012. Id. This application was
denied initially and again upon reconsideration. (Tr. 39-49).
Thereafter, Plaintiff requested an administrative hearing on his denied application, and this

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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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hearing request was granted. (Tr. 66-79). On May 15, 2013, the ALJ held an administrative hearing
to address Plaintiff’s application. (Tr. 21-38). This hearing was held in Fort Smith, Arkansas. Id.
Plaintiff was present at this hearing and was represented by counsel, Aaron Martin. Id. Plaintiff and
Vocational Expert (“VE”) John Massey testified at this hearing. Id.
After this hearing, on June 4, 2013, the ALJ entered an unfavorable decision denying
Plaintiff’s application for SSI. (Tr. 12-20). In this decision, the ALJ found Plaintiff met the insured
status requirements of the Act through December 31, 2016. (Tr. 14, Finding 1). The ALJ found
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since June 29, 2012, his alleged
onset date. (Tr. 14, Finding 2). The ALJ determined Plaintiff had the following severe impairments:
disorders of the back and obesity. (Tr. 14-15, Finding 3). However, 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. 15, Finding 4). In
his opinion, the ALJ made no findings regarding Plaintiff’s age or education.2
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 7-20). 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 the full range of sedentary
work as defined in 20 CFR 404.1567(a).
Id. The “full range of sedentary work” includes the following:

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Plaintiff’s age and education were also not mentioned during his administrative hearing. (Tr.

21-38).

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(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required occasionally and other sedentary
criteria are met.
20 C.F.R. § 404.1567(a) (2012).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 19-20, Finding 6). The
VE testified at the administrative hearing on this issue. Id. Based upon that testimony, the ALJ
determined Plaintiff’s PRW included work as a production worker on an assembly line (light,
unskilled as generally performed and sedentary, unskilled as actually performed). Id. The ALJ also
found Plaintiff retained the capacity to perform this PRW. Id. Because Plaintiff retained the
capacity to perform his PRW, the ALJ determined Plaintiff had not been under a disability, as
defined by the Act, from July 24, 2012 through the date of his decision. (Tr. 20, Finding 7).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 5-6). On March 4, 2014, the Appeals Council denied this request for review. (Tr. 13). Plaintiff then filed the present appeal on April 3, 2014. ECF No. 1. The Parties consented to
the jurisdiction of this Court on April 7, 2014. ECF No. 5. 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).
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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
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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 argues the ALJ’s decision is not supported by substantial

evidence.

ECF No. 8.

Plaintiff specifically argues that the ALJ erred in his credibility

determination. Id. Upon review, the Court agrees with Plaintiff’s argument and will only address
this issue on appeal.
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. § 416.929.3 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
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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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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.
See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
In the present action, the ALJ did not comply with the requirements from Polaski or 20
C.F.R. § 404.1529 and 20 C.F.R. § 416.929. (Tr. 7-20). Instead, the ALJ provided the following
cursory statement when he decided to discount Plaintiff’s subjective complaints of disabling
limitations:
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 entirely credible for the
reasons explained in this decision.
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(Tr. 17). The only other “inconsistencies” the ALJ provided were the following: (1) Plaintiff “filed
for disability less than a month after his job at Whirlpool ended”; (2) Plaintiff “admitted that he had
not tried to find another job”; and (3) Plaintiff had not lost weight even though he had been advised
by a doctor to do so. (Tr. 19). The Court will address each of these issue separately.
First, although Plaintiff did quickly apply for disability after his job ended, the ALJ did not
explain why this lessens Plaintiff’s credibility. Notably, the ALJ entirely ignored the fact that
Plaintiff worked for Whirlpool for over twenty-eight years and may have immediately needed the
money. (Tr. 24). Further, Plaintiff testified at the administrative hearing in this matter that he had
been unable to fully perform his job prior to his job ending. (Tr. 27). Plaintiff testified his
coworkers helped give him “extra breaks” so that he was able to continue working. (Tr. 27). Thus,
Plaintiff may have been disabled even before his job ended, and the Court finds the fact Plaintiff
quickly applied for disability does not detract from his credibility.
Second, the ALJ discounted Plaintiff’s subjective complaints because Plaintiff did not
attempt to find another job. (Tr. 24). The ALJ is correct in his finding that Plaintiff did not attempt
to find another job. However, Plaintiff also testified he did not attempt to find another job because
he “physically can’t do it anymore.” Id. Such a statement is certainly consistent with this claim that
he is no longer able to work.
Third and finally, the ALJ found Plaintiff was not credible because he did not lose weight
despite the fact he had been advised by a doctor to lose weight. (Tr. 19). The ALJ, however, has
not demonstrated that Plaintiff’s failure to lose weight was wilful or that Plaintiff’s obesity could be
remedied. See Stone v. Harris, 657 F.2d 210 (8th Cir. 1981). “The proper question for the agency
[SSA] is not whether . . . [the claimant’s] . . . obesity is in some clinical sense remediable, but
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whether . . . [the claimant’s] . . . obesity is reasonably remediable.” Id. (emphasis added).
In the present case, Plaintiff testified he had attempted to lose weight but had been
unsuccessful. (Tr. 35-36). Specifically, at the administrative hearing in this matter, Plaintiff testified
he has had trouble exercising due to his injuries, he has had difficulty maintaining a diet, and was
not a candidate for surgery to reduce his weight. Id. Thus, based upon this evidence and because
Plaintiff testified he made an effort to lose weight but was unable to do so, the ALJ has not
demonstrated Plaintiff’s obesity was “reasonable remediable,” and the ALJ should not have supplied
this as a basis for his decision to discount Plaintiff’s subjective complaints. Accordingly, because
the ALJ provided no valid reasons for discounting Plaintiff’s subjective complaints, this case must
be reversed and remanded.
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.4 A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 16th day of March 2015.
/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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