Yerger v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on August 5, 2011. (mfr)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
THOMAS LEE YERGER, JR.
Civil No. 4:10-cv-04126
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Thomas Lee Yerger, Jr. (“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 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.
Plaintiff protectively filed applications for DIB and SSI on May 25, 2007. (Tr. 77, 143-145,
146-148). Plaintiff alleged he was disabled due to kidney problems, high blood pressure, and a leg
condition. (Tr. 168). Plaintiff alleged an onset date of December 12, 2006. (Tr. 143, 146, 168).
These applications were denied initially and again upon reconsideration. (Tr. 70-73).
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.”
Thereafter, on November 14, 2007, Plaintiff requested an administrative hearing on his
applications, and this hearing request was granted.
(Tr. 100-101, 112-135).
administrative hearing was held on February 17, 2009 in Texarkana, Arkansas. (Tr. 9-69). Plaintiff
was present and was represented by counsel, Charles Barnette, at this hearing. Id. Plaintiff, a
witness for Plaintiff, Vocational Expert (“VE”) Elizabeth Clem, and medical experts Dr. Alice Cox,
M.D. and Dr. Betty Feir, Ph.D. testified at this hearing. Id. At the time of this hearing, Plaintiff was
fifty-two (52) years old, which is defined as a “person of advanced age” under 20 C.F.R. §
404.1563(e), and had completed the eleventh grade in high school and obtained a CDL. (Tr. 42-43).
On March 25, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s applications
for DIB and SSI. (Tr. 77-85). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2011. (Tr. 79, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since December 12, 2006, his
alleged onset date. (Tr. 79, Finding 2). The ALJ determined Plaintiff had the following severe
impairment: hypertension. (Tr. 79-81, Finding 3). The ALJ also determined Plaintiff’s impairment
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. 81, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 81-84, 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 the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to lift/carry 50 pounds occasionally and
25 pounds frequently; sit 6 hours out of an 8 hour day; stand/walk 6 hours out of an
8 hour day; and no climbing ladders, ropes, or scaffolds.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 84, Finding 6). The VE
testified at the administrative hearing regarding Plaintiff’s PRW. Id. Based upon that testimony,
the ALJ determined Plaintiff’s PRW included work as a poultry hanger (medium, unskilled),
housekeeper in a nursing home (medium, unskilled), and maintenance worker (medium,
semiskilled). Id. The VE also testified, considering his RFC, a hypothetical person with Plaintiff’s
limitations retained the capacity to perform this PRW. Id. Based upon that testimony, the ALJ
determined Plaintiff retained the capacity to perform his PRW, and the ALJ determined Plaintiff had
not been under a disability, as defined by the Act, from December 12, 2006 through the date of his
decision or through March 25, 2009. (Tr. 84, Finding 7).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 5). See 20 C.F.R. § 404.968. The Appeals Council declined to review this
unfavorable decision. (Tr. 1-3). On August 30, 2010, Plaintiff filed the present appeal. ECF No.
1. The Parties consented to the jurisdiction of this Court on September 3, 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
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).
In his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 8. Specifically, Plaintiff claims the ALJ erred (1) in
assessing his RFC and subjective complaints; and (2) by finding he retained the ability to perform
his PRW. ECF No. 8 at 1-4. 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 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.
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.
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. 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 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, some of 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. 83). The ALJ then summarized Plaintiff’s medical records and discounted Plaintiff’s complaints
because they were inconsistent with his medical records. Id. 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 did not comply with Polaski, this case must be reversed and remanded.3
On remand, the ALJ should also further evaluate Plaintiff’s documented alcohol abuse. (Tr. 81,
325). If the ALJ finds Plaintiff’s alcohol or substance abuse is a contributing factor material to the
determination of disability, then Plaintiff cannot be awarded disability benefits. See 42 U.S.C. §§
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 5th day of August, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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.
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