Baty v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 4, 2016. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CARLA L. BATY
vs.

PLAINTIFF
Civil No. 2:15-cv-02035

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Carla L. Baty (“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 filed her application for SSI on November 4, 2009. (Tr. 9, 121-123). Plaintiff
alleged she was disabled due to seizures, bipolar disorder and liver problems. (Tr. 153). Plaintiff
alleged an onset date of June 1, 2008. (Tr. 127). This application was denied initially and again on
reconsideration. (Tr. 69-70).
On September 21, 2010, Plaintiff requested an administrative hearing on her application. (Tr.

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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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83). This hearing request was granted, and an administrative hearing was held on January 25, 2011.
(Tr. 53-68). On March 3, 2011, the ALJ entered an unfavorable decision on Plaintiff’s application
for SSI. (Tr. 9-18). Plaintiff successfully appealed this decision and on November 25, 2013, this
Court reversed and remanded the case to the Commissioner. (Tr. 547-560).
A second administrative hearing was held on May 28, 2014. (Tr. 496-526). Plaintiff was
present and was represented by counsel, Matthew Ketcham, at this hearing. See id. Plaintiff and
Vocational Expert (“VE”) Dr. Larry Seifert testified at this hearing. See id. On the date of this
hearing, Plaintiff was forty-two (42) years old, which is defined as a “younger person” under 20
C.F.R. § 404.1563(c) (2008) and completed the 6th grade. (Tr. 499).
On December 8, 2014, the ALJ entered an unfavorable decision on Plaintiff’s application for
SSI. (Tr. 480-490). In this decision, the ALJ determined Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since November 4, 2009. (Tr. 482, Finding 1). The ALJ also determined
Plaintiff had the severe impairments of Musculoskeletal Disorder; Neurological Disorders; Mental
Disorders; and Substance Dependence. (Tr. 482, Finding 2). The ALJ also determined, however,
that Plaintiff did not have an impairment or a combination of impairments that met or medically
equaled one of the listed impairments in the Listings of Impairments in Appendix 1 to Subpart P of
Regulations No. 4 (“Listings”). (Tr. 483, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her
Residual Functional Capacity (“RFC”). (Tr. 485-489). First, the ALJ indicated he evaluated
Plaintiff’s subjective complaints and found her claimed limitations were not entirely credible. (Tr.
486). Second, the ALJ determined, based upon this review of Plaintiff’s subjective complaints, the
hearing testimony, and the evidence in the record, Plaintiff retained the RFC to perform light work;
occasionally balance, crawl, kneel, stoop, crouch, and climb ramps or stairs; must avoid hazards such
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as unprotected heights or moving machinery; and is restricted to performing only simple, routine, and
repetitive tasks with simple, direct, and concrete supervision and only incidental contact with others.
(Tr. 485, Finding 4).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 489, Finding 5). The ALJ
determined Plaintiff had no PRW. Id. The ALJ, however, also determined there was other work
existing in significant numbers in the national economy Plaintiff could perform. (Tr. 489, Finding
9). The ALJ based his determination upon the testimony of the VE. Id. Specifically, the VE
testified that given all Plaintiff’s vocational factors, a hypothetical individual would be able to
perform the requirements of a representative occupation such as motel maid with approximately
3,275 such jobs in Arkansas and 384,100 such jobs in the nation, merchandise marker with
approximately 2,000 such jobs in Arkansas and 220,600 such jobs in the nation, and bottle line
attendant with approximately 2,875 such jobs in Arkansas and 326,300 such jobs in the nation. Id.
Based upon this finding, the ALJ determined Plaintiff had not been under a disability as defined by
the Act since November 4, 2009. (Tr. 490, Finding 10).
On February 17, 2015, Plaintiff filed the present appeal. ECF No. 1. 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)
(2008); 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 id.; 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
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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
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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 claims the ALJ’s disability determination is not supported by
substantial evidence in the record. Specifically, Plaintiff claims the ALJ erred (1) in his RFC
determination, (2) in failing to properly consider Plaintiff’s GAF score, and (3) in his credibility
analysis of Plaintiff. ECF No. 14, Pages 10-17. In response, the Defendant argues the ALJ did not
err in any of his findings. ECF No. 15. Because this Court finds the ALJ erred in his credibility
analysis of Plaintiff, the Court will only address this argument.
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
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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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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 perform a proper Polaski analysis. While the ALJ
indicated the factors from 20 C.F.R. § 416.929 had been considered (Tr. 485), 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.3 In his opinion, the ALJ only
made the following cursory 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

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The ALJ also did not even specifically reference the Polaski factors which, although not required, is the
preferred practice. See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007).

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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.
(Tr. 486).
The ALJ discounted Plaintiff’s subjective complaints for the sole reason that they were not
consistent with his medical records. The ALJ’s decision to discount Plaintiff’s subjective allegations
based upon the medical evidence alone was improper. 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.
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 4th day of February 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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