Bryson v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on October 31, 2012. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JOHN MICHAEL BRYSON
vs.

PLAINTIFF
Civil No. 3:11-cv-03063

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
John Michael Bryson(“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
applications for Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”) and
a period of disability under Titles II and 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 protectively filed an application for DIB and SSI on October 14, 2008. (Tr. 43, 152163). Plaintiff alleged he was disabled due to hepatitis, neck problems, COPD, emphysema, and
depression. (Tr. 195). Plaintiff alleged an onset date of April 1, 2007. (Tr. 195). These applications
were denied initially and again upon reconsideration. (Tr. 89-92). Thereafter, Plaintiff requested

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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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an administrative hearing on his applications and this hearing request was granted. (Tr. 108).
Plaintiff’s administrative hearing was held on December 18, 2009, in Harrison, Arkansas.
(Tr. 52-88). Plaintiff was present and was represented by counsel, Walter Hellums, at this hearing.
Id. Plaintiff and Vocational Expert (“VE”) David O’Neal, testified at this hearing. Id. At the time
of this hearing, Plaintiff was forty-eight (48) years old, which is defined as a “younger person” under
20 C.F.R. § 404.1563(c), and had a high school education. (Tr. 57).
On February 25, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB and SSI. (Tr. 43-51). In this decision, the ALJ determined Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”) since April 1, 2007. (Tr. 45, Finding 2). The ALJ
determined Plaintiff had the severe impairments of back disorder and COPD. (Tr. 45, Finding 3).
The ALJ also determined Plaintiff’s impairments did not meet or medically equal the requirements
of any of the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”).
(Tr. 47, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 47-49, Finding 5). 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 for light work except he is unable to climb ladders, scaffolds, or ropes; cannot engage in
work that requires sustained operation of motor vehicles; cannot perform overhead work; should
avoid even moderate exposure to fumes, odors, dusts, gases, and poor ventilation; should avoid
extreme cold and workplace hazards; can occasionally climb ramps and stairs; and can occasionally
balance, stoop, kneel, crouch, and crawl. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 49, Finding 6). The ALJ

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determined Plaintiff was unable to perform his PRW. Id. The ALJ did, however, find Plaintiff
retained the ability to perform other work existing in significant numbers in the national economy.
(Tr. 49-50, Finding 10). The ALJ based this finding upon the testimony of the VE. Id. Specifically,
the VE testified that a hypothetical individual with Plaintiff’s limitations retained the ability to
perform work as a small parts assembler with 1,500 such jobs in the Arkansas and 230,000 in the
national economy, sales attendant with 2,700 such jobs in the Arkansas and 336,000 in the national
economy, and work as a hand inspector with 2,000 such jobs in the Arkansas and 500,000 in the
national economy. Id. The ALJ then determined Plaintiff had not been under a disability, as defined
by the Act, at anytime through the date of his decision. (Tr. 50, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 38). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On August 2, 2011, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on September 26, 2011. ECF No. 5. Both Parties have
filed appeal briefs. ECF Nos. 12, 13. 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).
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

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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
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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. 12, Pg. 2-18. Specifically, Plaintiff claims the ALJ
erred (1) in failing to consider Plaintiff’s impairments in combination, (2) in the credibility
determination of Plaintiff, and (3) in determining Plaintiff’s RFC. In response, the Defendant argues
the ALJ did not err in any of his findings. ECF No. 13. Because this Court finds the ALJ erred in
the credibility determination of Plaintiff, this Court will only address this issue.
A. Credibility Determination
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
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

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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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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.
47), 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
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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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Other than mentioning Plaintiff’s daily activities, 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 31st day of October 2012.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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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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