Parker v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 12, 2014. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JOHN H. PARKER, II.
Civil No. 4:13-cv-04013
CAROLYN W. COLVIN
Commissioner, Social Security Administration
John H. Parker, II (“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 a
Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and 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. 7.1
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 on February 14, 2011 and SSI on February
16, 2011. (Tr. 11, 112-116). Plaintiff alleged he was disabled due to high blood pressure, arthritis,
diabetes, diverticulitus, and depression. (Tr. 149). Plaintiff alleged an onset date of January 26,
2011. (Tr. 114). These applications were denied initially and again upon reconsideration. (Tr. 47-
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.”
50). Thereafter, Plaintiff requested an administrative hearing on his applications and this hearing
request was granted. (Tr. 64).
Plaintiff’s administrative hearing was held on February 7, 2012. (Tr. 26-46). Plaintiff was
present at this hearing and was represented by counsel, Greg Giles. Id. Plaintiff and Vocational
Expert (“VE”) Joyce Shoop testified at this hearing. Id. As of the date of this hearing, Plaintiff was
thirty-eight (38) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c)
(2008) (DIB). (Tr. 31). Plaintiff testified he finished the 8th grade. Id.
On March 13, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB and SSI. (Tr. 11-21). In this decision, the ALJ found Plaintiff met the insured status
requirements of the Act through September 30, 2014. (Tr. 13, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since January 26, 2011, his
alleged onset date. (Tr. 13, Finding 2).
The ALJ determined Plaintiff had severe impairments including degenerative disc disease,
hypertension, arthritis, diabetes, diverticulitus, and chronic low back pain. (Tr. 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.
15, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 16-19, Finding 5). 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 light work, except he should avoid climbing ladders, ropes, and
scaffolds, with only occasional squatting, reaching, kneeling, balancing; limited to work that allows
the claimant may alternate between sitting and standing at 2 hour intervals; work that does not
demand repetitive bending; and work that does not require twisting at the waist, stooping, kneeling,
or crawling. Id.
The ALJ 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 this testimony, the
ALJ found Plaintiff capable of performing his PRW as a fast food restaurant worker. Id. In the
alternative, the ALJ, however, also determined there was other work existing in significant numbers
in the national economy Plaintiff could perform. Id. The ALJ based his determination upon the
testimony of the VE. Id. Specifically, the VE testified that given all Plaintiff’s vocational factors,
a hypothetical individual would be able to perform the requirements of a representative occupation
such as an office worker with approximately 11,000 such jobs in Arkansas and 523,000 such jobs
in the nation, and hand packer with approximately 3,000 such jobs in Arkansas and 215,000 such
jobs in the nation. Id. The ALJ then determined Plaintiff had not been under a disability as defined
in the Act from January 26, 2011 through the date of the decision. (Tr. 20, Finding 7).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 7). On December 21, 2012, the Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On January 22, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on February 6, 2013. ECF No. 7. Both Parties have filed
appeal briefs. ECF Nos. 10, 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 his appeal brief, Plaintiff claims the ALJ’s decision is not supported by substantial
evidence in the record. ECF No. 10. Specifically, Plaintiff claims the following: (1) the ALJ did
not give proper consideration to his chronic pain; (2) the ALJ erred in her credibility analysis of
Plaintiff, and (3) the ALJ failed to present a proper hypothetical to the VE. Id. Because the ALJ
improperly evaluated Plaintiff’s subjective complaints, the Court will only address this argument for
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
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.
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
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 entirely disregarded Polaski. (Tr. 16-19). Instead, the ALJ
stated the Polaski factors and recognized she should consider those factors. (Tr. 16-17). Then, the
ALJ provided a long series of what appeared to be “canned” paragraphs, not addressing the specific
facts of this claim, stating she had complied with the applicable standards and stated the following:
After careful consideration of the medical opinions of record, I find that the
claimant’s medically determinable impairments cannot reasonably be expected to
produce the symptoms to the degree alleged by the claimant. The claimant’s
statements concerning the intensity, persistence and limiting effects of these
symptoms have been determined to diminish the capacity for basic work activities
only to the extent to which they can reasonably be accepted as consistent with the
objective medical and other evidence.
(Tr. 19). This was entirely inappropriate and improper under Polaski. The Polaski factors should
be considered so that the ALJ does not discount the claimant’s subjective complaints based upon the
medical records alone. See Polaski, 739 F.2d at 1322 (holding “[t]he adjudicator may not disregard
a claimant’s subjective complaints solely because the objective medical evidence does not fully
support them”). 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. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 12th day of February 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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