Jones v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 6, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
KENNETH C. JONES
vs.

PLAINTIFF
Civil No. 3:10-cv-03099

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Kenneth C. Jones (“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”) and a period of disability 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. 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 was awarded child’s SSI payments due to an organic mental disorder, with an
effective date of July 1, 2000. (Tr. 32, 44). On May 9, 2007, after having obtained the age of
eighteen and after the required regulatory review, the Agency notified Plaintiff that his SSI payments
would stop because he was no longer disabled as of May 1, 2007. (Tr. 32, 48). On June 3, 2008,
a Disability Hearing Officer affirmed the decision to cease Plaintiff’s SSI payments. (Tr. 30-38).

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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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Thereafter, Plaintiff requested an administrative hearing on his application, and this hearing
request was granted. (Tr. 24-26). This hearing was held on February 23, 2010 in Harrison,
Arkansas. (Tr. 605-628). Plaintiff was present via telephone and was represented by counsel, Fred
Caddell, at this hearing. Id. Plaintiff testified at this hearing and Vocational Expert (“VE”) John
Massey was present at this hearing. Id. On the date of this hearing, Plaintiff was twenty-one (21)
years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c) (2008), and had
a high school education. (Tr. 14-16).
On June 29, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI and finding Plaintiff’s disability ceased as of May 1, 2007. (Tr. 8-17). In this decision, the
ALJ determined that since May 1, 2007, Plaintiff had the severe impairments of organic mental
disorder and chronic migraines. (Tr. 13, Finding 2). The ALJ also determined, however, that since
May 1, 2007, Plaintiff did not have an impairment or a combination of impairments that met or
medically equaled one of the listed impairments in the Listing of Impairments in Appendix 1 to
Subpart P of Regulations No. 4 and No. 16 (“Listings”). (Tr. 13, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC
since May 1, 2007. (Tr. 13-15, Finding 4). The ALJ indicated he evaluated Plaintiff’s subjective
complaints and found his claimed limitations were not fully credible. (Tr. 13). The ALJ also
determined, based upon his review of Plaintiff’s subjective complaints, the hearing testimony, and
the evidence in the record, that Plaintiff retained the RFC to perform work at all exertional levels,
where interpersonal contact is incidental to the work performed; complexity of tasks is learned and
performed by rote, with few variables and little judgment; and supervision is simple, direct, and
concrete. (Tr. 13, Finding 4).

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The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 15). The ALJ found
Plaintiff had no PRW. (Tr. 15, Finding 5). The ALJ did, however, find that since May 1, 2007,
Plaintiff retained the ability to perform other work existing in significant numbers in the national
economy. (Tr. 16, Finding 9). The ALJ based this finding upon the responses to interrogatories of
the VE. Id. Specifically, the VE testified in response to interrogatories from the ALJ that a
hypothetical individual with Plaintiff’s limitations retained the ability to perform work as a kitchen
helper with 2,800 such jobs in Arkansas and 380,800 in the national economy, a warehouse worker
with 1,100 such jobs in Arkansas and 39,500 in the national economy, and conveyer-feeder with
1,200 such jobs in Arkansas and 46,700 in the national economy. Id. The ALJ then determined
Plaintiff’s disability ended May 1, 2007 and he had not been under a disability, as defined by the
Act, from that date through the date of his decision. (Tr. 16, Finding 10).
Thereafter, Plaintiff requested that the Appeals Council review the ALJ’s unfavorable
decision. (Tr. 6-7). See 20 C.F.R. § 404.968. On September 10, 2010, the Appeals Council
declined to review this unfavorable decision. (Tr. 3-5). On November 4, 2010, Plaintiff filed the
present appeal. ECF No. 1. Both parties have filed appeal briefs. ECF Nos. 8,9. 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)
(2010); 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 claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 8. Specifically, Plaintiff claims the following: (1) the
ALJ failed to properly develop the record, and (2) the ALJ improperly discounted his subjective
complaints. ECF No. 8 at 8-18. In response, the Defendant argues the ALJ did not err in any of his
findings. ECF No. 9.
After reviewing Plaintiff’s argument in the briefing and the opinion by the ALJ, this Court
finds the ALJ did not fully consider Plaintiff’s subjective complaints as required by Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984). Thus, this Court will only address this issue.
In assessing the credibility of a claimant, the ALJ is required to examine and to apply the five
factors from Polaski v. Heckler 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

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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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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
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. § 404.1529 and 20 C.F.R. § 416.929 had been considered (Tr.
49), 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

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credibility.3 Other than mentioning some of Plaintiff’s daily activities and finding Plaintiff’s pain
appeared to be well controlled by over-the-counter medications, the ALJ made no other 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. Upon remand, the ALJ may still find
Plaintiff not disabled, however a proper and complete analysis pursuant to Polaski should be
performed.4
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 6th day of February, 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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The ALJ also did not 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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Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
this appeal.

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