Matthews v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 27, 2014. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
VICTOR B. MATTHEWS
vs.

PLAINTIFF
Civil No. 4:13-cv-04054

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Victor B. Matthews (“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 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 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 protectively filed his disability application on January 18, 2008. (Tr. 12, 109-121).

In his application, Plaintiff claims to be disabled due a back injury which impacts his upper and
lower back. (Tr. 162). Plaintiff alleges an onset date of July 24, 2007. (Tr. 12, 114-116). This
application was denied initially and again upon reconsideration. (Tr. 64-65). Thereafter, on June
18, 2008, Plaintiff requested an administrative hearing on his application, and this hearing request

1

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.”

1

was granted. (Tr. 85-91).
Plaintiff’s administrative hearing was held on April 7, 2009 in Texarkana, Arkansas. (Tr.
23-63). Plaintiff was present at this hearing and was represented by counsel, James Wiley. Id.
Plaintiff, Vocational Expert (“VE”) Mr. Larman2 , and Medical Expert (“ME”) Dr. Wylep testified
at this hearing. Id. On 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). As
for his level of education, Plaintiff testified he had graduated from high school. (Tr. 29).
On June 1, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s application for
DIB. (Tr. 9-22). In this decision, the ALJ found Plaintiff met the insured status requirements of the
Act through December 31, 2011. (Tr. 14, Finding 1). The ALJ found Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since June 24, 2007, his alleged onset date. (Tr. 14, Finding
2). The ALJ determined Plaintiff had the following severe impairments: cervical and lumbar
degenerative disc disease and hypertension. (Tr. 14-16, Finding 3). However, 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 his RFC.
(Tr. 16-20, 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
the RFC to perform a limited range of light work:
After careful consideration of the entire record, the undersigned finds that the
2

The first names of the VE and the ME were not included in the transcript. (Tr. 23-63).

2

claimant has the residual functional capacity to lift or carry occasionally 20 pounds
and 10 pounds frequently; sit for 6 hours out of an 8-hour workday; stand or walk 6
hours of an 8-hour work day; the upper extremities would be limited to occasional
pushing and pulling; the claimant can frequently climb ramps or stairs, balance,
stoop, kneel, crouch and crawl, but should never climb ladders, ropes or scaffolds.
The claimant is precluded from heavy industrial driving but light industrial driving
is not precluded.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”), and the ALJ found Plaintiff did
not retain the capacity to perform his PRW. (Tr. 20-21, Finding 6). The ALJ then evaluated whether
Plaintiff retained the capacity to perform other work existing in significant numbers in the national
economy. (Tr. 21-22, Finding 10). The ALJ relied upon the testimony of the VE to make this
determination. Id. Specifically, based upon that testimony, the ALJ found Plaintiff retained the
capacity to perform the following light, unskilled occupations: (1) cashier with 20,000 such jobs in
the region and 200,000 in the nation; (2) ticket seller with 7,000 such jobs in the region and 70,000
in the nation; and (3) electronics worker with 2,000 such jobs in the region and 20,000 in the nation.
(Tr. 22). Because Plaintiff retained the capacity to perform this other work, the ALJ determined
Plaintiff had not been under a disability, as defined in the Act, from July 24, 2007 through the date
of the ALJ’s decision or through June 1, 2009. (Tr. 22, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 6). On March 12, 2010, the Appeals Council denied this request for review of the
ALJ’s unfavorable determination. (Tr. 1-3). On May 15, 2013, Plaintiff filed the present appeal.
ECF No. 1. The Parties consented to the jurisdiction of this Court on May 15, 2013. ECF No. 6.
Both Parties have filed appeal briefs. ECF Nos. 9-10. This case is now ready for decision.

3

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).
4

To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. She 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 raises the following arguments for reversal: (1) the ALJ erred by

failing to fully and fairly develop the administrative record; (2) the ALJ improperly evaluated his
PRW; (3) the evidence as a whole supports a finding of disability; and (4) Plaintiff’s case should be
reversed and rendered with a direction that benefits be awarded. ECF No. 9 at 1-15. The Court has
reviewed the ALJ’s decision, the transcript in this matter, and the briefing filed by the Parties.
Because the Court finds the ALJ improperly evaluated Plaintiff’s subjective complaints, only this
issue will be addressed.
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
5

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

3

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.

6

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 the requirements of Polaski. (Tr. 9-22).
Instead of evaluating the Polaski factors and noting inconsistencies between Plaintiff’s testimony
and the record in this case, the ALJ solely focused on Plaintiff’s medical records and merely gave
the following canned reason for discounting his 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 within a range
of light work.
(Tr. 18). Indeed, the only other “inconsistency” the ALJ found was related to Plaintiff’s medical
records and the fact those medical records did not support his subjective complaints: “For these
reasons, the claimant’s allegations of disabling back, hip and leg pain are not wholly credible
because they are inconsistent with the medical records as a whole.” (Tr. 19) (emphasis added).
These reasons for discounting Plaintiff’s subjective complaints are not sufficient under
Polaski. Importantly, in addition to the Polaski factors, the ALJ also failed to consider Plaintiff’s
extensive work history. Plaintiff has a work history of over 30 years at the same place of
employment. (Tr. 30). Despite the importance of this fact, the ALJ entirely ignored Plaintiff’s work
history in assessing his credibility. Accordingly, based upon these findings and because the ALJ
disregarded Polaski in his analysis, this case must be reversed and remanded.4

4

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

7

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. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 27th day of May 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

disability determination, subject to this Court’s later review.

8