Conway v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 24, 2013. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MYRA A. CONWAY
Civil No. 4:12-cv-04056
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Myra A. Conway (“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 a
period of disability and Disability Insurance Benefits (“DIB”) under Title II 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 postjudgment 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 filed her DIB application on November 7, 2008. (Tr. 12, 62-63). In her application,
Plaintiff claims to be disabled due to tendinitis in her left hand, “sick spells,” and surgery for breast
cancer. (Tr. 84). Specifically, Plaintiff claims these impairments impact her in the following ways:
I am left hand[ed] and I cannot use my left hand. It is hard for me [to] write, open
jars. It is hard for me to do anything. Sometimes the medicine that I have, it does not
work. I still have pain. I have pain from my arm all the way up to my neck.
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.”
(Tr. 84). Plaintiff alleges an onset date of November 12, 2008. (Tr. 84). This application was
denied initially and again upon reconsideration. (Tr. 36-37). Thereafter, Plaintiff requested an
administrative hearing on her application, and this hearing request was granted. (Tr. 44-55).
Plaintiff’s administrative hearing was held on June 18, 2010 in Texarkana, Arkansas. (Tr.
23-35). Plaintiff was present at this hearing, but she was not represented by counsel. Id. Plaintiff
and Vocational Expert (“VE”) Mack Wilkes testified at this hearing. Id. As of the date of this
hearing, Plaintiff was forty-nine (49) years old, which is defined as a “younger person” under 20
C.F.R. § 4040.1563(c) (2008) (DIB). (Tr. 27). As for her level of education, Plaintiff testified she
completed the eleventh grade in high school. Id.
On September 10, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB. (Tr. 9-19). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2012. (Tr. 14, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since November 12, 2008, her
alleged onset date. (Tr. 14, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: a history of bilateral carpal tunnel syndrome and a history of breast cancer status postmastectomy. (Tr. 14-16, 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. 16, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 16-19, 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
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 the full range of light work
as defined in 20 CFR 404.1567(b). Light work is defined as lifting, carrying,
pushing, and/or pulling up to 20 pounds occasionally and up to 10 pounds frequently;
sitting for up to 2-hours during an 8-hour workday; and standing and/or walking up
to 6-hours during an 8-hour workday.
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr.19, 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 venter or grader at a chicken plant, and
Plaintiff retained the capacity to perform that PRW. Id. Because Plaintiff retained the capacity to
perform this PRW, the ALJ determined Plaintiff had not been under a disability as defined in the Act
from November 12, 2008 through the date of his decision or through September 10, 2010. (Tr. 19,
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision, and on May 1, 2012, the Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On May 29, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on June 13, 2012. ECF No. 5. Both Parties have filed appeal briefs.
ECF Nos. 8, 11. This case is now ready for decision.
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 her appeal brief, Plaintiff claims the following: (1) the ALJ’s decision is not supported by
substantial evidence in the record because the ALJ failed to assess her impairments under the
Listings; and (2) the ALJ erred in discrediting her alleged limitations and alleged chronic pain. ECF
No. 8 at 1-19. Because this Court agrees with Plaintiff’s second argument and finds the ALJ
improperly performed a Polaski evaluation and improperly discounted her subjective complaints of
chronic pain, this Court will only address the second 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;
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.
(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
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 her medical records. (Tr. 16-18). For example, the ALJ stated, “[t]he claimant has
alleged that her ability to work and perform activities of daily living are severely limited due to her
medical impairments; however, the objective medical evidence does not fully support her
allegations.” (emphasis added). The ALJ also added the following perfunctory statement regarding
Plaintiff’s subjective complaints:
After careful consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to cause some of
the alleged symptoms; however, 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. 17-18). The ALJ’s decision to discount Plaintiff’s subjective complaints based upon her
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.
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 24th day of April 2013.
/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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