Rush v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 16, 2013. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 4:12-cv-04078
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Tabitha Rush (“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
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. 13.1
Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final
judgment in this matter.
Plaintiff protectively filed an application for DIB and SSI on August 25, 2009. (Tr. 12, 136145). Plaintiff alleged she was disabled due to degenerative disc disease, arthritis, scoliosis, and
bipolar. (Tr. 182). Plaintiff alleged an onset date of September 30, 2003. (Tr. 182). These
applications were denied initially and again upon reconsideration. (Tr. 61-88). Thereafter, Plaintiff
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.”
requested an administrative hearing on her applications and this hearing request was granted. (Tr.
Plaintiff’s administrative hearing was held on March 8, 2011. (Tr. 39-60). Plaintiff was
present and was represented by counsel, Matt Golden, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Talesia Beasley testified at this hearing. Id. At the time of this hearing, Plaintiff was
twenty-six (26) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c),
and had an eleventh grade education and a GED. (Tr. 42).
On April 19, 2011, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB and SSI. (Tr. 12-20).2 In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through September 30, 2010. (Tr. 14, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since September 30, 2003, her
alleged onset date. (Tr. 14, Finding 2).
The ALJ determined Plaintiff had the severe impairment of degenerative disc disease, bipolar
and anxiety disorder. (Tr. 14, 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. 20, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 15-18). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to lift and carry twenty pounds occasionally and ten pounds frequently; stand or walk six
The record contains a second, earlier decision by the ALJ, dated April 15, 2009. (Tr. 24-38). However,
there is no difference between the two decisions.
hours and sit six hours in an eight-hour workday; and stoop, kneel, crouch and crawl occasionally;
but she was unable to climb ladders, ramps or scaffolds. (Tr. 15). Further, she was able to
understand, remember and follow simple and detailed instructions; complete repetitive tasks; and
interact occasionally with the public. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, Finding 5). The ALJ
found Plaintiff had PRW as a caterer helper, call representative, cashier, and home health aid. Id.
The ALJ determined Plaintiff was unable to perform her PRW. Id.
The ALJ also determined whether Plaintiff retained the capacity to perform other work
existing in significant numbers in the national economy. (Tr. 18-19, Finding 9). The VE testified
at the administrative hearing regarding this issue. Id. Specifically, the VE testified that considering
her age, education, work experience, and RFC, Plaintiff retained the capacity to perform occupations
such as mail clerk with 68,556 such jobs nationally and 4,519 such jobs in Texas, electronic
assembler with 81,007 such jobs nationally and 2,471 such jobs in Texas, and laundry aid with
328,316 such jobs nationally and 25,909 such jobs in Texas. Id. Because Plaintiff retained the
capacity to perform this other work, the ALJ determined Plaintiff had not been under a disability as
defined by the Act from her application date or from September 30, 2003 through the date of his
decision. (Tr. 19, Finding 10).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 7). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On July12, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to
the jurisdiction of this Court on December 20, 2012. ECF No. 13. Both Parties have filed appeal
briefs. ECF Nos. 11, 12. 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 her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 11, Pg. 3-8. Specifically, Plaintiff claims the ALJ erred
(1) in the credibility determination of Plaintiff and (2) by considering Plaintiff’s lack of medical
treatment in addressing her credibility. Id. In response, the Defendant argues the ALJ did not err
in any of his findings. ECF No. 12. Because this Court finds the ALJ erred in the credibility
determination of Plaintiff, 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. § 416.929.3 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
a Plaintiff disabled within the strict definition of the Act. The issue is not the existence of pain, but
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.
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 20 C.F.R. § 416.929 and 20 C.F.R. 404.1529 had been considered (Tr. 15),
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.4 In his opinion, the ALJ only made 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 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.
Other than mentioning some of Plaintiff’s daily activities, the ALJ made no 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
The ALJ also did not even specifically reference the Polaski factors which, although not required, is the
preferred practice. See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007).
pursuant to Polaski should be performed.5
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 16th day of April 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
This Court remands this case only for the purpose of fully considering the Polaski factors and supplying
valid reasons for discounting Plaintiff’s subjective complaints, if any. This Memorandum Opinion should not be
interpreted as requiring Plaintiff be awarded disability benefits upon remand.
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