Weeks v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 30, 2015. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TANYA WEEKS
vs.

PLAINTIFF
Civil No. 2:14-cv-02120

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Tanya Weeks (“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
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. 6.1 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 her disability application on May 3, 2011. (Tr. 13, 160). In her

application, Plaintiff alleges being disabled due to diabetes, neuropathy, asthma, pancreatitis, and
depression. (Tr. 197). Plaintiff alleges an onset date of January 1, 2011. (Tr. 13). This application
was denied initially and again upon reconsideration. (Tr. 46-47).
Thereafter, Plaintiff requested an administrative hearing on her 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. 31-45). On June 18, 2012, the ALJ held an administrative hearing
to address Plaintiff’s application. Id. This hearing was held in Fort Smith, Arkansas. Id. Plaintiff
was present at this hearing and was represented by counsel, Wayne Young. Id. Plaintiff and
Vocational Expert (“VE”) Deborah Steele testified at this hearing. Id.
After this hearing, on August 28, 2012, the ALJ entered an unfavorable decision denying
Plaintiff’s application for SSI. (Tr. 10-21). In this decision, the ALJ found Plaintiff had not engaged
in Substantial Gainful Activity (“SGA”) since May 3, 2011, her application date. (Tr. 15, Finding
1). The ALJ determined Plaintiff had the following severe impairments: diabetes mellitus, asthma,
chronic obstructive pulmonary disease (COPD), and obesity. (Tr. 15-16, Finding 2). 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.
16, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 16-20, Finding 4). 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 light work as defined in 20
CFR 416.967(b) except she can climb ramps and stairs frequently and can climb
ladders, ropes and scaffolds occasionally. She can balance and stoop frequently and
can kneel, crouch and crawl occasionally. She should avoid even moderate exposure
to fumes, odors, dust, gases and poorly ventilated areas.
Id. The ALJ considered Plaintiff’s age and found she was thirty-four (34) years old, which is defined
as a “younger individual” under 20 C.F.R. § 416.963(c) (2008). (Tr. 20, Finding 6). The ALJ also
determined Plaintiff had at least a high school education and was able to communicate in English.
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(Tr. 20, Finding 7).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was unable
to perform her PRW. (Tr. 20, Finding 5). The ALJ then considered whether Plaintiff retained the
capacity to perform other work existing in significant numbers in the national economy. (Tr. 20-21,
Finding 9). The VE testified at the administrative hearing on this issue. Id. Based upon that
testimony, the ALJ determined Plaintiff retained the capacity to perform the following occupations:
(1) tanning salon attendant (unskilled, light) with 61,257 such jobs in the United States and 297 such
jobs in Arkansas; and (2) domestic laundry worker (unskilled, light) with 371,379 such jobs in the
United States and 3,332 such jobs in Arkansas. Id. Because Plaintiff retained the capacity to
perform this other work, the ALJ determined Plaintiff had not been under a disability, as defined by
the Act, from May 13, 2011 through the date of his decision or through August 28, 2012. (Tr. 21,
Finding 10).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 7). On March 20, 2014, the Appeals Council denied this request for review. (Tr. 1-3).
Plaintiff then filed the present appeal on May 22, 2014. ECF No. 1. The Parties consented to the
jurisdiction of this Court on May 28, 2014. ECF No. 6. 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

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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
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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 her appeal brief, Plaintiff argues the ALJ’s decision is not supported by substantial

evidence.

ECF No. 10.

Plaintiff specifically argues that the ALJ erred in his credibility

determination, erred in evaluating her severe impairments, and erred in considering her obesity. Id.
Upon review, the Court agrees with Plaintiff’s first argument that the ALJ erred in evaluating her
subjective complaints 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. § 416.929.2 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

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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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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.
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. (Tr. 1021). Instead, the ALJ discounted Plaintiff’s subjective complaints for the sole reason that they are
not consistent with her medical records:
In conclusion, the undersigned has considered the claimant’s subjective complaints
of pain, nausea, fatigue and depression and gives due deference accordingly.
However, the medical evidence shows that with all the complaints considered the
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claimant can still perform at the reduced light level as outlined in the aforementioned
residual functional capacity.
(Tr. 20) (emphasis added). Upon review of the ALJ’s decision, it appears the ALJ supplied no other
valid reasons for discounting Plaintiff’s subjective complaints. The ALJ’s decision to discount
Plaintiff’s subjective allegations based upon the medical evidence alone was improper. See Polaski,
739 F.2d at 1322 (holding the ALJ cannot discount the claimant’s subjective complaints “solely
because the objective medical evidence does not fully support them [the subjective complaints]”).
Thus, 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.3 A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 30th 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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