Wantland v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 18, 2011. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
BRANDI M. WANTLAND
vs.

PLAINTIFF
Civil No. 4:10-cv-04094

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Brandi M. Wantland (“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 a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental
Security Income (“SSI”) 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 January 11, 2006. (Tr. 8, 76-84).
Plaintiff alleged she was disabled due to several different impairments, including fibromyalgia,
depression, and the side effects of gastric bypass surgery. (Tr. 92). Plaintiff alleged an onset date
of August 28, 2004. (Tr. 76, 82). These applications were denied initially and again upon

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

reconsideration. (Tr. 42-45).
Thereafter, on April 28, 2007, Plaintiff requested an administrative hearing on her
applications, and this hearing request was granted. (Tr. 62). Plaintiff’s administrative hearing was
held on July 9, 2008 in Texarkana, Arkansas. (Tr. 20-41). Plaintiff was present and was represented
by counsel, Michael LaBuff, 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-nine (39) years
old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c), and it appears she had
completed the ninth grade in school.2 (Tr. 23, 40).
On August 27, 2008, the ALJ entered an unfavorable decision denying Plaintiff’s applications
for DIB and SSI. (Tr. 8-18). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through June 30, 2008. (Tr. 10, Finding 1). The ALJ determined Plaintiff
had not engaged in Substantial Gainful Activity (“SGA”) since August 28, 2004, her alleged onset
date. (Tr. 10, Finding 2). The ALJ determined Plaintiff had the following severe impairments:
depression; polysubstance abuse in partial remission; somatoform disorder; lower back pain; and
fibromyalgia. (Tr. 10-11, 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. 11-12, Finding 4).
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

2

At the administrative hearing, the ALJ found she had completed the ninth grade, but, in his opinion, the
ALJ found she had completed high school. (Tr. 16, Finding 8). This issue does not appear to be in dispute.
Therefore, this Court presumes Plaintiff only completed the ninth grade in school.

2

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 less than the full range of
light work as defined in 20 CFR 404.1567(b) and 416.967(b). She is able to
stand/walk for 6 hours out of an 8-hour workday. She is able to sit for 6 hours out
of an 8-hour workday. She is able to lift/carry 20 pounds occasionally and 10 pounds
frequently. She is able to occasionally climb, stoop, bend, and squat. She is limited
to work where interpersonal contact is incidental to the work performed. She is able
to understand, remember, and carry out simple instructions and exercise limited
judgment. She would require a little supervision for routine tasks and detailed
supervision for non-routine tasks.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 16, Finding 6). The ALJ
determined Plaintiff’s PRW included work as a sales clerk, barber, and truck driver. Id. Based upon
her RFC, the ALJ determined Plaintiff would be unable to perform this PRW. Id. The ALJ 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. 17, Finding 10).
The ALJ based this finding 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 occupation such as a light
assembler with 10,000 such jobs locally, 40,000 such jobs regionally, and 800,000 such jobs
nationally. (Tr. 17). Based upon this testimony, the ALJ then found Plaintiff had not been under a
disability, as defined by the Act, at any time from August 28, 2004, her alleged onset date, through
the date of his decision or through August 27, 2008. (Tr. 17, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 19). See 20 C.F.R. § 404.968. The Appeals Council declined to review this
unfavorable decision. (Tr. 5-7). On June 30, 2010, Plaintiff filed the present appeal. ECF No. 1.
3

The Parties consented to the jurisdiction of this Court on July 15, 2010. ECF No. 5. 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)
(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

4

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 her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 7 at 1-9. Specifically, Plaintiff claims the ALJ erred
(1) by failing to properly assess the non-exertional limitations associated with her fibromyalgia,
chronic pain, and mental impairments; (2) by finding she did not meet the requirements of the mental
disorder listings; and (3) by failing to properly assess her chronic pain. ECF No. 8. Because this
Court finds the ALJ improperly evaluated Plaintiff’s subjective complaints, this Court will only
address the third issue Plaintiff raised.

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. § 416.929.3 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

3

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 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, listed Plaintiff’s subjective complaints of disabling limitations, and then repeatedly
stated at several different times in the opinion that “her subjective complaints are largely
unsupported by the objective finding.” (Tr. 16). This practice of discounting a claimant’s subjective
complaints based upon the medical evidence alone is not permitted. See Polaski, 739 F.2d at 1322
(holding the ALJ cannot discount Plaintiff’s subjective complaints “solely because the objective
medical evidence does not fully support them [the subjective complaints]”).
Because the ALJ stated no inconsistences and did not comply with Polaski, this case must
be reversed and remanded.4 On remand, the ALJ should be especially careful when evaluating
Plaintiff’s subjective complaints because Plaintiff alleges a disability primarily due to fibromyalgia
(Tr. 92), which is largely subjective in nature.
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

4

This remand is ordered solely for the purpose of permitting the ALJ the opportunity to comply with the
requirements of Polaski. No part of this remand should be interpreted as an instruction that disability benefits be
awarded. Upon remand, the ALJ should further evaluate the evidence and make a disability determination, subject to
this Court’s later review.

7

52 and 58.
ENTERED this 18th day of July, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

8