Ingle v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 18, 2012. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
BRENDA SUE INGLE
Civil No. 4:11-cv-04089
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Brenda Sue Ingle (“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 application 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. 16.1 Pursuant to this authority, the
Court issues this memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff filed her applications for disability benefits on January 29, 2009. (Tr. 10, 171). Plaintiff
alleged she was disabled due to learning disability and nerve problems. (Tr. 188). Plaintiff alleged an
onset date of January 1, 2005. (Tr. 188). These applications were denied initially and again on
Thereafter, Plaintiff requested an administrative hearing on her
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.”
applications and this hearing request was granted. (Tr. 81-88).
This hearing was held on September 7, 2010 in Texarkana, Arkansas. (Tr. 25-32). Plaintiff was
present but was not represented by counsel at this hearing. Plaintiff requested representation and this
hearing was postponed until such time that Plaintiff obtained representation. Id.
On April 20, 2011 Plaintiff’s hearing was held in Texarkana, Arkansas. (Tr. 33-70). Plaintiff
was present and represented by counsel, Matthew Golden, at this hearing. Id. Plaintiff, her witness
Vince Harris, and Vocational Expert (“VE”) Mr. Belder testified at this hearing. Id. On the date of this
hearing, Plaintiff was fifty-two (52) years old, which is defined as a “person closely approaching
advanced age” under 20 C.F.R. § 404.1563(d) (2008), and had a sixth grade education. (Tr. 43-44).
On May 27, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s application for
DIB and SSI. (Tr. 10-21). In this decision, the ALJ determined Plaintiff had never met the insured
status. (Tr. 12, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since January 1, 2005, her alleged onset date. (Tr. 12, Finding 2). The ALJ
determined Plaintiff had the severe impairments of reading disorder, written language disorder,
borderline intellectual functioning, and anxiety disorder not otherwise specified. (Tr. 12, Finding 3).
The ALJ also determined, however, that Plaintiff did not have an impairment or a combination of
impairments that met or medically equaled one of the listed impairments in the Listing of Impairments
in Appendix 1 to Subpart P of Regulations No. 4 and No. 16 (“Listings”). (Tr. 13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 14-19, Finding 5). The ALJ indicated he evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not fully credible. (Tr. 18). The ALJ also determined, based upon his review
of Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record, that Plaintiff
retained the RFC to sit, stand, or walk for six hours but otherwise had no exertional limitations in a work
environment with minimal stress. (Tr. 14). The ALJ also found Plaintiff had the mental RFC to learn,
understand, remember, and carry out simple 1-2 step instructions and tasks; use judgment in making
simple work-related decisions; respond and relate appropriately to others such as supervisors and
coworkers, but keeping contact with co-workers to a minimum and avoiding public contact; maintain
attention and concentration for two hour intervals; and adapt to and deal with simple changes in work
settings and environment. (Tr. 14). (Tr. 14, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 19-20). The ALJ found
Plaintiff was able to perform her PRW of mobile home cleaner and hotel housekeeper. (Tr. 19, Finding
6). The ALJ found this work did not require performance of work-related activities precluded by her
RFC. Id. Based upon this finding, the ALJ determined Plaintiff had not been under a disability as
defined by the Act from January 1, 2005 through the date of the ALJ’s decision. (Tr. 20, Finding 7).
Thereafter, Plaintiff requested that the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 4-6). See 20 C.F.R. § 404.968. On August 4, 2011, the Appeals Council declined to review this
unfavorable decision. (Tr. 1-3). On September 15, 2011, Plaintiff filed the present appeal. ECF No.
1. Both parties have filed appeal briefs. ECF Nos. 19, 21. 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) (2010); 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 her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 19. Specifically, Plaintiff claims the following: (1) the ALJ
improperly discounted her subjective complaints and (2) the ALJ erred in failing to consider the
testimony of Vincent Harris. ECF No. 19 at 6-10. In response, the Defendant argues the ALJ did not
err in any of his findings. ECF No. 21.
After reviewing Plaintiff’s argument in the briefing and the opinion by the ALJ, this Court finds
the ALJ did not fully consider Plaintiff’s subjective complaints as required by Polaski v. Heckler, 739
F.2d 1320 (8th Cir. 1984). Thus, this Court will only address this issue.
In assessing the credibility of a claimant, the ALJ is required to examine and to apply the five
factors from Polaski v. Heckler 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
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.
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. While the ALJ
indicated the factors from Polaski had been considered (Tr. 18), a review of the ALJ’s opinion shows
that instead of evaluating these factors and noting inconsistencies between Plaintiff’s subjective
complaints and the evidence in the record, the ALJ merely reviewed the medical records and recognized
the proper legal standard for assessing credibility. Other than mentioning some of Plaintiff’s daily
activities and noting some personal observations, the ALJ made no other specific findings regarding the
inconsistencies between Plaintiff’s claimed subjective complaints and the record evidence. The ALJ
must make a specific credibility determination, articulate the reasons for discrediting the Plaintiff’s
testimony, and address any inconsistencies between the testimony and the record. The ALJ failed to
perform this analysis.
This lack of analysis 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.3
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 18th day of July 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
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