McVey v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 21, 2014. (adw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
MARK S. MCVEY
vs.

PLAINTIFF
Civil No. 3:13-cv-03005

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Mark S. McVey (“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
Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and 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. 7.1
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 an application for DIB and SSI on September 18, 2008. (Tr. 113-123).

Plaintiff alleged he was disabled due to injuries to his left arm and shoulder. (Tr. 144). Plaintiff
alleged an onset date of May 27, 2008. (Tr. 113). These applications were denied initially and again
upon reconsideration. (Tr. 71-82). Thereafter, Plaintiff requested an administrative hearing on his

1

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.”

1

applications and this hearing request was granted. (Tr. 83).
Plaintiff’s initial administrative hearing was held on September 4, 2009. (Tr. 27-63).
Following this hearing, the ALJ entered an unfavorable decision denying Plaintiff’s application for
DIB and SSI. (Tr. 9-18). Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s
unfavorable decision. (Tr. 4-5). On September 7, 2010, the Appeals Council declined to review this
unfavorable decision. (Tr. 1-3). On October 13, 2010, Plaintiff filed an appeal in the United States
District Court. (Tr. 467).
On December 8, 2011, this matter reversed and remanded the matter to the Commissioner
for further consideration. (Tr. 464-472). Specifically, this matter was reversed and remanded for
further consideration of Plaintiff’s subjective complaints in accordance with Polaski v. Heckler, 739
F.2d 1320 (8th Cir. 1984).
Plaintiff’s second administrative hearing was held on June 15, 2012. (Tr. 410-443). Plaintiff
was present at this hearing and was represented by counsel, Frederick Spencer. Id. Plaintiff and
Arthur Greathouse testified at this hearing. Id. As of the date of this hearing, Plaintiff was fifty-one
(51) years old, which is defined as a “person closely approaching advanced age” under 20 C.F.R. §
404.1563(d) (2008) (Tr. 413). Plaintiff testified he finished the 9th grade. Id.
On September 28, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB and SSI. (Tr. 392-404). In this decision, the ALJ found Plaintiff met the insured
status requirements of the Act through December 31, 2008. (Tr. 394, Finding 1). The ALJ also
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 27, 2008,
his alleged onset date. (Tr. 394, Finding 2).
The ALJ determined Plaintiff had severe impairments including tendonitis and mood

2

disorder. (Tr. 394, Finding 3). 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. 395, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 396-402, Finding 5). First, the ALJ indicated he 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 was limited to frequent climbing, balancing,
crawling, kneeling, stooping, crouching, fingering, and handling, and occasional overhead work. (Tr.
396, Finding 5). The ALJ also found Plaintiff had the ability to understand, remember, and carry out
only simple, routine, and repetitive tasks; respond to usual work situations and routine work changes;
respond to supervision that is simple, direct, and concrete; and occasionally interaction with
supervisors, co-workers, and the public. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 402, Finding 6). The ALJ
found Plaintiff unable of performing his PRW as a meat dresser/butcher, cardboard bailer,
construction worker and van driver. Id. The ALJ however determined there was other work existing
in significant numbers in the national economy Plaintiff could perform. (Tr. 403, Finding 10). The
VE answered interrogatories regarding this issue. (Tr. 403). Based upon the interrogatory answers,
the ALJ determined Plaintiff retained the ability to perform other work such as a machine
tender/operator with 3,750 such jobs in Arkansas and 295,910 such jobs in the nation, assembler
with 645 such jobs in Arkansas and 84,943 such jobs in the nation, and inspector/tester with 960
such jobs in Arkansas and 105,788 such jobs in the nation. Id. Given this, the ALJ determined
Plaintiff had not been under a disability as defined in the Act from May 27, 2008 through the date

3

of his decision. (Tr. 403, Finding 11).
On January 8, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on February 7, 2013. ECF No. 8. Both Parties have filed appeal
briefs. ECF Nos. 13, 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)
(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,

4

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).
3.

Discussion:
In his appeal brief, Plaintiff claims the ALJ’s decision is not supported by substantial

evidence in the record. ECF No. 13. Specifically, Plaintiff claims the following: (1) the ALJ
improperly assessed Plaintiff’s credibility and (2) the ALJ erred in the RFC determination. Id.
Because the ALJ improperly evaluated Plaintiff’s subjective complaints, the Court will only address
this argument for reversal.

5

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
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

2

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.

6

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 entirely disregarded Polaski. (Tr. 18-23). Instead, the ALJ
stated the Polaski factors and recognized he should consider those factors. (Tr. 18-19). Then, the
ALJ provided a long series of what appeared to be “canned” paragraphs, not addressing the specific
facts of this claim, stating he had complied with the applicable standards and stated the following:
I find that the claimant’s medically determinable impairments 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
credible, to the extent they are inconsistent with the above residual functional
capacity assessment.
(Tr. 398) (emphasis added).
The ALJ briefly stated Plaintiff had little treatment and did not take prescription medicine.
He also went on to state Plaintiff’s alcohol abuse cast doubt on Plaintiff’s credibility. (Tr. 402).
However, this last statement completely contradicts an earlier finding by the ALJ wherein he stated
Plaintiffs’s history of alcohol use was not material to his decision in this case. (Tr. 401).
This was entirely inappropriate and improper under Polaski. The Polaski factors should be
considered so that the ALJ does not discount the claimant’s subjective complaints based upon the
medical records alone. See Polaski, 739 F.2d at 1322 (holding “[t]he adjudicator may not disregard
a claimant’s subjective complaints solely because the objective medical evidence does not fully
support them”). Accordingly, this case must be reversed and remanded for further consideration of
Plaintiff’s subjective complaints in accordance with Polaski.
4.

Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
7

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 21st day of March 2014.

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

8