Reese v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on June 27, 2011. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
VIRGINIA ANN DANIEL REESE
vs.

PLAINTIFF
Civil No. 4:10-cv-04066

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Virginia Ann Daniel Reese (“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 applications
for Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), 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 applications for DIB and SSI on November 6, 2007. (Tr. 9-17, 119126). Plaintiff alleged she was disabled due to fibromyalgia; Epstein Barr; depression; high blood
pressure; degenerative disc disease; and arthritis in her lower back, neck, and knees. (Tr. 139).
Plaintiff originally alleged an onset date of December 31, 2003 but later amended that alleged onset

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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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date to October 25, 2007. (Tr. 9, 31). These applications were denied initially and again on
reconsideration. (Tr. 59-62). Thereafter, Plaintiff requested an administrative hearing on her
applications, and this hearing request was granted. (Tr. 87-95).
Plaintiff’s administrative hearing was held on February 23, 2009 in Texarkana, Texas. (Tr. 1858). Plaintiff was present and was represented by counsel, Terry Diggs, at this hearing. Id. Plaintiff,
Vocational Expert (“VE”) William Elmore, and a witness for Plaintiff testified at this hearing. Id. At
the time of this hearing, Plaintiff was forty-seven (47) years old, which is defined as a “younger
person”under 20 C.F.R. § 404.1563(c) (2008), and had obtained her GED. (Tr. 34).
On July 28, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s applications for
DIB and SSI. (Tr. 9-17). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2010. (Tr. 11, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since October 25, 2007, her
amended alleged onset date. (Tr. 11-12, Finding 2). The ALJ determined Plaintiff had the following
severe impairments: fibromyalgia and thyroid cyst. (Tr. 12-13, 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. 15, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 13-16, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the
RFC to perform the following:
After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) [footnote omitted] except she cannot balance or climb
ropes, ladders, and scaffolds, and can only occasionally stoop, crouch, kneel, crawl, and
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climb stairs. She is also limited to relatively simple, unskilled jobs that are routine and
repetitive.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 16, Finding 6). The ALJ
found Plaintiff had PRW as a bartender (light and semiskilled), cashier I (sedentary and skilled),
supervisor/headcashier (light and skilled), and lead assembler (light and semiskilled). Id. The ALJ
found Plaintiff would be unable to perform any of this PRW. Id. The ALJ also found, however, that
considering her RFC, age, education, and work experience, Plaintiff would be able to perform other
work existing in significant numbers in the national economy. (Tr. 16-17, Finding 10). The ALJ
based this determination upon the testimony of the VE. Id.
Specifically, the VE testified that, given all Plaintiff’s vocational factors, a hypothetical person
would be able to perform the requirements of a representative light, unskilled occupations such as a
production assembler, cashier II, and sewing machine operator (semiautomatic) with “thousands or
dozens of thousands of instances of employment in the regional economy [footnote omitted] and in
hundreds of thousands of instances in the national.” (Tr. 16-17). The ALJ then found Plaintiff had
not been under a disability, as defined by the Act, at any time from her amended alleged onset date of
October 25, 2007 through July 28, 2009, his decision date. (Tr. 17, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable decision.
(Tr. 4). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On May 13, 2010, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to
the jurisdiction of this Court on June 16, 2010. ECF No. 5. Both Parties have filed appeal briefs. ECF
Nos. 10-11. This case is now ready for decision.

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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, 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

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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 her appeal brief, Plaintiff claims the following: (1) the ALJ improperly dismissed her
subjective allegations in violation of Polaski; (2) the ALJ failed to give “proper weight” to the
opinions of her treating physicians; and (3) the ALJ erred by finding there were a significant number
of jobs she was able to perform. ECF No. 10 at 7-12. Because this Court finds the ALJ improperly
evaluated Plaintiff’s subjective complaints, this Court will only address the first issue Plaintiff raised.
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
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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,

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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 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. As an initial matter,
the ALJ did not even state the Polaski factors. (Tr. 14-16). Although such a recitation is not required,

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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it is the “preferred” practice. See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007). Further, the
ALJ did not analyze the Polaski factors or note any consistencies as required by Polaski.
Instead of evaluating the Polaski factors and noting inconsistencies between Plaintiff’s
subjective complaints and the evidence in the record, the ALJ merely focused upon Plaintiff’s medical
records and noted that her subjective complaints were not supported by her medical records. (Tr. 15).
The ALJ also stated the following:
After careful consideration of the evidence, the undersigned finds 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. 15). By discounting Plaintiff’s subjective complaints merely because they were not supported by
the medical evidence, the ALJ failed to comply with the requirements of Polaski. Thus, this case must
be reversed and remanded.3
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 27th day of June, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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This Court reverses and remands this case only for the purpose of allowing the ALJ to fully consider the
Polaski factors and supply valid reasons for discounting Plaintiff’s subjective complaints. This Order should not be
interpreted as requiring that Plaintiff be awarded disability benefits.

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