Robertson v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 22, 2011. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

RICHARD K. ROBERTSON
vs.

PLAINTIFF
Civil No. 4:10-cv-04073

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Richard K. Robertson (“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. 6.1 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 February 23, 2006. (Tr. 10, 7786). Plaintiff alleged he was disabled due to several different impairments, including degenerative
disc disease, anxiety, and post-traumatic stress disorder. (Tr. 122). Plaintiff alleged an onset date

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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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of October 1, 2004.

(Tr. 122).

These applications were denied initially and again upon

reconsideration. (Tr. 44-62). Thereafter, Plaintiff requested an administrative hearing on his
applications, and this hearing request was granted. (Tr. 63).
Plaintiff’s administrative hearing was held on July 8, 2008, in Texarkana, Arkansas. (Tr. 2043). Plaintiff was present and was represented by counsel, Greg Giles, at this hearing. Id. Plaintiff,
and Vocational Expert (“VE”) Dianne Smith testified at this hearing. Id. At the time of this hearing,
Plaintiff was thirty-eight (38) years old, which is defined as a “younger person” under 20 C.F.R. §
404.1563(c), and had graduated from high school. (Tr. 22, 37).
On August 27, 2008, the ALJ entered an unfavorable decision denying Plaintiff’s applications
for DIB and SSI. (Tr. 10-19). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through September 30, 2007. (Tr. 12, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since October 1, 2004, his alleged
onset date. (Tr. 12, Finding 2).
The ALJ determined Plaintiff had the severe impairments of degenerative disc disease, major
depression and anxiety. (Tr. 12, 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. 13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 14-17, 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 to perform light work except being limited to being in one position continuously for no
more than one hour, and only occasional climbing, balancing, stooping, kneeling, crouching, and

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crawling. (Tr. 14, Finding 5). From a mental standpoint, the ALJ found Plaintiff was limited to
work that involves interpersonal contact incidental to the work performed; work where tasks are
learned by experience, but can involve several variables and the use of judgment within reasonable
limits; and work where the supervision for non-routine tasks is detailed, but little for routine tasks.
(Tr. 14-15, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr.17, Finding 6). The ALJ
determined Plaintiff’s PRW included work as a floor covering installer, emergency medical
technician, respiratory therapist, and delivery man. (Tr. 17). Based upon his RFC, the ALJ
determined Plaintiff would be unable to perform this PRW. Id.
The ALJ did, however, find Plaintiff retained the ability to perform other work existing in
significant numbers in the national economy. (Tr. 17-18, Finding 10). The ALJ based this finding
upon the testimony of the VE. Id. Specifically, the VE testified in response to a question from the
ALJ that a hypothetical individual with Plaintiff’s limitations retained the ability to perform work
as a companion, case aid, or first aid attendant with approximately 18,000 such jobs in the local
economy and 50,000 in the national economy. Id. The ALJ then determined Plaintiff had not been
under a disability, as defined by the Act, from October1, 2004 through the date of his decision. (Tr.
18, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 6). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On May 28, 2010, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on June 23, 2010. ECF No. 6. Both Parties have filed appeal briefs.
ECF Nos. 12, 14. 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).
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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 disability determination is not supported by
substantial evidence in the record. ECF No. 12 at 7-19. Specifically, Plaintiff claims the ALJ erred
(1) in evaluating his subjective complaints, (2) by failing to find Plaintiff’s impairments met or
equaled a Listing, (3) in evaluating his RFC, and (4) by failing to properly evaluate the medical
evidence. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 14.
Because this Court finds the ALJ improperly evaluated Plaintiff’s subjective complaints and his
RFC, this Court will only address these issues Plaintiff raised.
A. Credibility Determination
Plaintiff claims the ALJ erred in evaluating his subjective complaints. In assessing the
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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 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

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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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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).
Plaintiff argues the ALJ erred in failing to properly apply the five factors from Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984). The Defendant argues the ALJ properly evaluated
Plaintiff’s subjective complaints of pain in compliance with Polaski.
In the present action, the ALJ did not perform a proper Polaski analysis. Instead of
evaluating the Polaski factors and noting inconsistencies between Plaintiff’s subjective complaints
and the evidence in the record, the ALJ merely stated the Polaski factors, summarized Plaintiff’s
medical records, and listed some of Plaintiff’s subjective complaints of disabling limitations.
It is the ALJ’s duty to provide full analysis of at least some of these factors and state the
inconsistencies in the opinion. See Ford v. Astrue, 518 F 3d 979, 982-83 (8th Cir. 2008) (requiring
the ALJ to detail the reasons for discrediting a claimant’s subjective complaints and set forth the
inconsistencies he or she found).
The perfunctory analysis performed by the ALJ in this matter 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.
B. RFC
In social security cases, it is important for an ALJ to evaluate a claimant’s Global Assessment
of Functioning (“GAF”) score in determining whether that claimant is disabled due to a mental
impairment. GAF scores range from 0 to 100. Am. Psychiatric Ass’n, Diagnostic & Statistical
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Manual of Mental Disorders (DSM-IV-TR) 34 (4th ed., text rev. 2000). The Eighth Circuit has
repeatedly held that GAF scores (especially those at or below 40) must be carefully evaluated when
determining a claimant’s RFC. See, e.g., Conklin v. Astrue, 360 F. App’x. 704, 707 (8th Cir. 2010)
(reversing and remanding an ALJ’s disability determination in part because the ALJ failed to
consider the claimant’s GAF scores of 35 and 40); Pates-Fires, 564 F.3d 935, 944-45 (8th Cir. 2009)
(holding that the ALJ’s RFC finding was not supported by substantial evidence in the record as a
whole, in part due to the ALJ’s failure to discuss or consider numerous GAF scores below 50).
Indeed, a GAF score at or below 40 should be carefully considered because such a low score reflects
“a major impairment in several areas such as work, family relations, judgment, or mood.” Conklin,
360 F. App’x at 707 n.2 (quoting Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental
Disorders (DSM-IV-TR) 34 (4th ed., text rev. 2000)).
In the present action, Plaintiff was assessed as having a GAF score of 41 by Dr. Betty Feir,
Ph. D., on April 11 2006, and a score of 45 by Dr. C. Morgan Yates, Ph. D., on July 18, 2006. (Tr.
194, 223). The ALJ did not discuss these low GAF scores in his opinion. (Tr. 10-19). A GAF score
of 50 reflects a serious limitation on a persons ability to perform basic life skills. See Brueggemann
v. Barnhart, 348 F. 3d 689, 695 (8th
Cir. 2003).
It was the ALJ’s responsibility to evaluate those GAF scores and make a finding regarding
their reliability as a part of the underlying administrative proceeding. See Conklin, 360 F. App’x at
707. Indeed, it is especially important that the ALJ address low GAF scores where, as in this case,
Plaintiff has been diagnosed with anxiety disorder and depression (Tr. 190-196, 206, 219, 223).
Thus, considering these facts, because the ALJ did not evaluate Plaintiff’s low GAF scores, this case
must be reversed and remanded for further evaluation of these scores. Upon remand, the ALJ may
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still find Plaintiff not disabled, however a proper and complete analysis of Plaintiff’s GAF scores
should be performed.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 22nd day of July, 2011.
/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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