Nance v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on June 23, 2017. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MICHAEL W. NANCE
Civil No. 2:16-cv-02165
NANCY A. BERRYHILL
Commissioner, Social Security Administration
Michael Nance (“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 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.
Plaintiff protectively filed his disability application on December 14, 2012. (Tr. 10, 166-
173). In his application, Plaintiff alleges being disabled due to three heart attacks, stroke, and a bad
back. (Tr. 210). Plaintiff alleges an onset date of July 15, 2011. (Tr. 10). This application was
denied initially and again upon reconsideration. (Tr. 71-114, 117-119).
Thereafter, Plaintiff requested an administrative hearing on his denied application. (Tr. 120).
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.”
The ALJ granted that request and held an administrative hearing on February 3, 2014. (Tr. 28-70).
At this hearing, Plaintiff was present and was represented by Matthew Ketcham. Id. Plaintiff and
Vocational Expert (“VE”) Sarah Moore, testified at this hearing. Id. At this hearing, Plaintiff
testified he was thirty-six (36), which is defined as a “younger person” under 20 C.F.R. § 416.963(c)
(SSI) and 20 C.F.R. § 404.1563(c) (DIB). (Tr. 33). As for his level of education, Plaintiff testified
he had graduated from high school. Id.
After this hearing, on July 24, 2015, the ALJ entered an unfavorable decision denying
Plaintiff’s applications for SSI. (Tr. 10-21). In this decision, the ALJ found Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”) since December 14, 2012. (Tr. 12, Finding 1). The
ALJ also determined Plaintiff had the following severe impairments: degenerative disc disease of
the lumbar and cervical spine, bilateral carpal tunnel syndrome, hypertension, learning disorder not
otherwise specified (NOS), anxiety disorder NOS, and personality disorder with dependent and
antisocial features. (Tr. 12, Finding 2). Despite being severe, the ALJ determined these 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. 12, Finding 3).
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (Tr. 14-19,
Finding 4). 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 light work except he could only perform occasional climbing, balancing, stooping,
kneeling, crouching, and crawling; occasional handling and fingering bilaterally; restricted to work
where interpersonal contact with coworkers and supervisors was incidental to the work performed;
there was no contact with the general public; the complexity of tasks was learned and performed by
rote, with few variables and little use of judgment; and the supervision required was simple, direct,
and concrete. (Tr. 14, Finding 4).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 19, Finding 5).
Considering his RFC, the ALJ determined Plaintiff could not perform any of his PRW. Id. The ALJ
also considered whether Plaintiff retained the capacity to perform other work existing in significant
numbers in the national economy. (Tr. 20, Finding 9). 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: (1) blending tank tender helper with 221 such jobs in Arkansas
and 8,195 such jobs in the United States; (2) groover and stripper operator with 178 such jobs in
Arkansas and 11,519 such jobs in the United States; and (3) fruit distributor with 100 such jobs in
Arkansas and 6,636 such jobs in the United States. Id. Because Plaintiff retained the capacity to
perform this work, the ALJ also determined Plaintiff had not been under a disability, as defined by
the Act, since December 14, 2012. (Tr. 21, Finding 10).
Thereafter, Plaintiff requested a review by the Appeals Council. (Tr. 5). On June 20, 2016,
the Appeals Council denied this request. (Tr. 1-4). On July 12, 2016, Plaintiff filed the present
appeal with this Court. ECF No. 1. The Parties consented to the jurisdiction of this Court on July
13, 2016. ECF No. 6. This case is now ripe for determination.
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
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).
In his appeal brief, Plaintiff raises the following arguments for reversal: (1) the ALJ erred
in assessing his credibility and (2) the ALJ erred in his RFC determination. ECF No. 11 at 4-9. In
response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 12. Upon
review, the Court finds the ALJ improperly evaluated Plaintiff’s subjective complaints. Thus, the
Court will only evaluate Plaintiff’s first 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.
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.
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 of Polaski. Instead of
complying with Polaski and considering the Polaski factors, the ALJ only focused on whether
Plaintiff’s subjective complaints were supported by his medical records. (Tr. 14-19). Further,
instead of providing reasons for discounting Plaintiff’s subjective complaints, the ALJ stated the
After careful consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairment 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.
The Court finds the ALJ’s decision to discount Plaintiff’s subjective complaints without a
sufficient basis was improper under Polaski. See Polaski, 739 F.2d at 1322 (holding a claimant’s
subjective complaints cannot be discounted “solely because the objective medical evidence does not
fully support them [the subjective complaints]”). Accordingly, because the ALJ provided no valid
reasons for discounting Plaintiff’s subjective complaints, this case must be reversed and remanded.
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 23rd day of June 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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