Glover v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on June 20, 2013. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JAMES CURTIS GLOVER
Civil No. 4:12-cv-04090
CAROLYN W. COLVIN
Commissioner, Social Security Administration
James Curtis Glover (“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 application
for Supplemental Security Income (“SSI”) and a period of disability under Title 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. 10.1 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 SSI on January 22, 2009. (Tr. 11, 110-111).
Plaintiff alleged he was disabled due to colon cancer, spot on neck, back trouble, high blood
pressure, and chest pain. (Tr. 133). Plaintiff alleged an onset date of December 15, 2008. (Tr. 133).
This application was denied initially and again upon reconsideration. (Tr. 47-50, 54-56). Thereafter,
Plaintiff requested an administrative hearing on his application and this hearing request was granted.
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.”
Plaintiff’s administrative hearing was held on October 20, 2010. (Tr. 26-44). Plaintiff was
present and was represented by counsel, Matthew Golden, at this hearing. Id. Plaintiff, Medical
Expert (“ME”) Dr. Sterling Moore, and Vocational Expert (“VE”) Michael Gartman testified at this
hearing. Id. At the time of this hearing, Plaintiff was forty-nine (49) years old, which is defined as
a “younger person” under 20 C.F.R. § 404.1563(c), and had a high school education. (Tr. 11, 28-29).
On December 21, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s
application for SSI. (Tr. 11-21). In this decision, the ALJ determined Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since January 22, 2009. (Tr. 13, Finding 1). The ALJ also
determined Plaintiff had the severe impairment of colon cancer, hypertension, and degenerative disc
disease. (Tr. 13, Finding 2). The ALJ then 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. 16, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 16-19). First, the ALJ indicated he 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 sedentary work, can only stand for two hours during an eight-hour workday and
sit for six hours during an eight-hour workday, and should avoid ropes, climbing, ladders, and
scaffolds. (Tr. 16, Finding 4).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 19, Finding 5). The
ALJ found Plaintiff unable to perform his PRW as a poultry hanger, house cleaner, parcel post clerk,
parking lot attendant and carwash attendant. Id. The ALJ also determined there was other work
existing in significant numbers in the national economy Plaintiff could perform. (Tr. 19-20, Finding
9). The VE testified at the administrative hearing on this issue. (Tr. 37-40). Based on this
testimony, the ALJ determined Plaintiff retained the ability to perform other work such as an escort
vehicle driver with 1,300 such jobs in Arkansas and 139,000 such jobs in the nation; a food and
beverage order clerk with 600 such jobs Arkansas and 18,000 such jobs in the nation; and a
surveillance monitor with 600 such jobs in Arkansas and 16,000 such jobs in the nation. (Tr. 20).
Given this, the ALJ determined Plaintiff had not been under a disability as defined in the Act since
January 22, 2009. (Tr. 20, Finding 10).
Thereafter, Plaintiff requested the Appeals Council review 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 July 30, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on December 20, 2012. ECF No. 10. Both Parties have filed appeal
briefs. ECF Nos. 9, 11. 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. 9, Pg. 5-9. Specifically, Plaintiff claims the ALJ erred
in the credibility determination of Plaintiff. Id. In response, the Defendant argues the ALJ did not
err in any of his findings. ECF No. 11.
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
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
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.
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 20 C.F.R. § 416.929 and 20 C.F.R. § 404.1529 had been considered (Tr.
17), 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. In his opinion, the ALJ only made the following perfunctory statement regarding
Plaintiff’s subjective complaints:
In this case, the claimant appears to be sincere and genuine regarding the pain and
limitations she states she 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).3
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
pursuant to Polaski should be performed.
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 20th day of June 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
The Court assumes James Glover is a he and not a she.
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