Guire v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 8, 2013. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
RANDALL LEE GUIRE
vs.

PLAINTIFF
Civil No. 4:12-cv-04036

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Randall Lee Guire (“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. 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 filed his DIB and SSI applications on October 28, 2009. (Tr. 10, 97-106). In his

applications, Plaintiff claims to be disabled due to bipolar disorder and knee and back pain. (Tr.
126). Specifically, Plaintiff claims these impairments impact him in the following ways: “I had a
nervous breakdown. I get stressed out around people. I’m bipolar. I don’t like to be around

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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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anybody.” Id. Plaintiff alleges an onset date of May 1, 2008. (Tr. 10, 97, 104). These applications
were denied initially and again upon reconsideration. (Tr. 43-46). Thereafter, Plaintiff requested
an administrative hearing on his applications, and this hearing request was granted. (Tr. 60-75).
Plaintiff’s administrative hearing was held on August 23, 2010 in Texarkana, Arkansas. (Tr.
33-42). Plaintiff was present at this hearing but was not represented by counsel. Id. Plaintiff and
Vocational Expert (“VE”) Talesia Besley testified at this hearing. Id. As of the date of this hearing,
Plaintiff was fifty (50) years old, which is defined as a “person closely approaching advanced age”
under 20 C.F.R. § 404.1563(d) (2008) (DIB) and 20 C.F.R. § 416.963(d) (2008) (SSI). (Tr. 36). As
for his level of education, Plaintiff testified he had completed high school. (Tr. 37).
On October 13, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s
applications for DIB and SSI. (Tr. 10-21). In this decision, the ALJ determined Plaintiff met the
insured status requirements of the Act through December 31, 2010. (Tr. 12, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 1, 2008,
his alleged onset date. (Tr. 12, Finding 2). The ALJ determined Plaintiff had the following severe
impairments and “other disorders”: a mood disorder, an anxiety disorder, an anti-social personality
disorder, polysubstance dependence, and hypertension. (Tr. 12-14, Finding 3). The ALJ also
determined Plaintiff’s impairments 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. 14-16,
Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 16-19, 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
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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 meet the exertional demands of light
activity. The claimant can sit for six hours in an 8 hour day and stand or walk for six
hours in an eight-hour day. He can lift or carry ten pounds frequently and twenty
pounds occasionally (20 CFR 404.1567(b) and 416.967(b)). The claimant should
avoid ropes, climbing, ladders or scaffolds, and he can occasionally balance, stoop,
crouch, crawl, and squat. He has the ability to understand, remember, and carry out
short and simple tasks and instructions.
Id.
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr.19, Finding 6). The
ALJ determined Plaintiff’s PRW included work as a construction worker and pipefitter. Id. The
ALJ determined both of those occupations were classified as “heavy.” Id. Because the ALJ
determined Plaintiff only retained the RFC for light work, the ALJ found Plaintiff was precluded
from performing any of this PRW. Id.
The ALJ then determined whether Plaintiff retained the capacity to perform other work
existing in significant numbers in the national economy. (Tr. 20, Finding 1). The VE testified at the
administrative hearing regarding this issue. (Tr. 20, 39-42). Based upon that testimony, the ALJ
determined Plaintiff retained the capacity to perform representative occupations such as document
preparer with 591 such jobs in Arkansas and 136,000 such jobs in the nation; shirt folder with 195
such jobs in Arkansas and 13,000 such jobs in the nation; and operator with 203 such jobs in
Arkansas and 9,000 such jobs in the nation. (Tr. 20). Because Plaintiff retained the capacity to
perform this other work, the ALJ determined Plaintiff had not be under a disability as defined in the
Act from his alleged onset date or from May 1, 2008 through the date of the ALJ’s decision or
through October 13, 2010. (Tr. 20, Finding 11).

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Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 31). On March 1, 2012, the Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On April 18, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on May 9, 2012. ECF No. 6. 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
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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).
3.

Discussion:
In his appeal brief, Plaintiff claims the following: (1) the ALJ’s decision that he retained the

capacity to perform other work existing in the national economy was not supported by substantial
evidence in the record; (2) the ALJ erred by failing to fully evaluate the record; (3) the ALJ erred by
failing to consider his impairments in combination; and (4) the ALJ erred by failing to give
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“appropriate weight” to his subjective complaints. ECF No. 8. Because this Court agrees with
Plaintiff’s fourth argument and finds the ALJ improperly performed a Polaski evaluation and
improperly discounted his subjective complaints, this Court will only address the fourth 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.
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.

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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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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 comply with Polaski and did not give sufficient reasons
for discounting Plaintiff’s subjective complaints. In his opinion, the ALJ properly stated the Polaski
factors but then discounted Plaintiff’s subjective complaints for the sole reason that they were not
supported by his medical records. (Tr. 16-19). Specifically, the ALJ determined his subjective
complaints were not credible based upon the following finding:
. . . In this case, the claimant appears to be sincere and genuine regarding the pain and
limitations . . . [he] states . . . [he] experienced with the medical impairments. If
accepted as described, the claimant would be prevented from completing even
sedentary exertional functions. However, the claimant’s most serious symptoms and
limitations are simply outside the range of reasonable attribution according to the
medical opinions of record. . . .
(Tr. 18) (emphasis added). The ALJ’s decision to discount Plaintiff’s subjective complaints based
upon his objective medical records alone was in error and in violation of Polaski. See Polaski, 739
F.2d at 1322. Accordingly, this case must be reversed and remanded for further consideration of
Plaintiff’s subjective complaints in accordance with Polaski.
As a final point, it is worth noting that the Polaski analysis is an assessment of the credibility
of the Plaintiff’s complaints. Here, the ALJ specifically found the Plaintiff’s complaints to be
“sincere and genuine,” in a word credible. The ALJ then discounted his complaints. These findings
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are entirely inconsistent. If the ALJ finds Plaintiff to be “sincere and credible,” then his subjective
allegations should be accepted, and the ALJ should incorporate those limitations into his RFC
determination.
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.3 A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 8th day of April 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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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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