Hardin v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 17, 2014. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JAMES BRIAN HARDIN

vs.

PLAINTIFF

Civil No. 4:13-cv-04068

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
James Brian Hardin (“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
applications for Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), 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. 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 DIB application on March 2, 2011 and protectively filed his

SSI application on July 12, 2011. (Tr. 13, 140-151). In his applications, Plaintiff claims to be
disabled due to multiple strokes, high blood pressure, broken ribs, a cervical neck injury at C5-C6,

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.”

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“mild damage” to C2 to C3, bursitis in his shoulders, sciatic nerve damage in his hips, depression,
injury to his right elbow, and 50% hearing loss in his left ear. (Tr. 163). Plaintiff alleges an onset
date of August 1, 2010. (Tr. 13, 146). These applications were denied initially and again upon
reconsideration. (Tr. 70-73). Thereafter, on March 21, 2012, Plaintiff requested an administrative
hearing on his applications, and this hearing request was granted. (Tr. 92-101).
Plaintiff’s administrative hearing was held on November 16, 2012 in Texarkana, Arkansas.
(Tr. 37-69). Plaintiff was present at this hearing and was represented by Stanley Brummal. Id.
Plaintiff, Vocational Expert (“VE”) Russell Bowden, and Medical Expert (“ME”) Dr. Murphy2
testified at this hearing. Id. On the date of this hearing, Plaintiff was forty-seven (47) years old,
which is defined as a “younger person” under 20 C.F.R. § 416.963(c) (2008) (SSI) and 20 C.F.R. §
404.1563(c) (2008) (DIB). (Tr. 40). As for his level of education, Plaintiff testified he obtained his
GED. Id.
On December 26, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s
applications for DIB and SSI. (Tr. 13-32). In this decision, the ALJ found Plaintiff met the insured
status requirements of the Act on August 1, 2010, his alleged disability onset date, and would
continue to meet those requirements through at least December 31, 2015. (Tr. 16, Finding 1). The
ALJ found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since August 1, 2010,
his alleged disability onset date. (Tr. 16-17, Finding 2). The ALJ found Plaintiff has the following
severe impairments: degenerative disc disease of the cervical spine, poorly controlled hypertension
with hypertensive cardiovascular disease, and cerebral microvascular disease status post several
small cerebral vascular accidents (strokes). (Tr. 17-22, Finding 3). However, the ALJ determined
2

The first name of “Dr. Murphy” is not included in the hearing transcript. (Tr. 38).

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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. 22-24, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 24-29, 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 the full range of light work:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform the full range of light work as defined in 20
CFR 404.1567(b) and 416.967(b). Specifically, at all times from August 1, 2010
through the date of this decision, I find he retained the residual functional capacity
to frequently lift and/or carry 10 pounds and occasionally up to 20 pounds, sit 6 hours
in an 8-hour workday; stand and/or walk 6 hours in an 8-hour workday; and push or
pull commensurate with lifting limitations. There are no non-exertional limitations.
This is commensurate with the full range of light work activity (20 CFR 404.1567(b)
and 416.967(b) SSRs 83-12, 83-14, 85-15, and 96-8p).
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was
unable to perform any of his PRW. (Tr. 29-30, Finding 6). The ALJ then evaluated whether
Plaintiff retained the capacity to perform other work existing in significant numbers in the national
economy. (Tr. 31, Finding 10). The ALJ relied upon the Medical-Vocational Guidelines or “The
Grids” to make that determination. Id. Specifically, considering Rule 202.21 and Rule 202.22 of
the Grids, the ALJ determined Plaintiff was not disabled at any time from August 1, 2010, Plaintiff’s
alleged onset date, through December 26, 2012, the date of the ALJ’s decision. (Tr. 32, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 7). On May 21, 2013, the Appeals Council denied this request for review of the ALJ’s
unfavorable determination. (Tr. 1-3). On June 28, 2013, Plaintiff filed the present appeal. ECF No.
3

1. The Parties consented to the jurisdiction of this Court on June 28, 2013. ECF No. 5. Both Parties
have filed appeal briefs. ECF Nos. 10, 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

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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. 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 five arguments for reversal: (1) the ALJ failed to properly

consider whether his impairments meet the requirements of the Listings; (2) the ALJ erred in
discrediting his subjective complaints; (3) the ALJ erred in discrediting the RFC assessment of Dr.
Michael Young, M.D.; (4) the ALJ erred in failing to discuss his exertional and non-exertional
limitations; and (5) the ALJ erred in presenting his hypothetical to the VE. ECF No. 10 at 1-21. The

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Court has reviewed the ALJ’s decision, the transcript in this matter, and the briefing filed by the
Parties. Because the ALJ improperly evaluated Plaintiff’s subjective complaints, the Court will only
address Plaintiff’s second argument for reversal.
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. § 416.929.3 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.

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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.

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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, in assessing Plaintiff’s subjective complaints, the ALJ did not comply
with the requirements of Polaski. (Tr. 24-29). Although the ALJ’s opinion was lengthy and
detailed, the ALJ still provided no valid reasons for discounting Plaintiff’s subjective complaints.
Indeed, the ALJ did what is specifically prohibited by Polaski and discounted Plaintiff’s subjective
complaints based upon the fact those complaints are not supported by the objective medical
evidence. Id. Specifically, the ALJ made the following findings:
•

“As fully set forth above, the claimant has alleged conditions for which there is no medical
support.” (Tr. 25).

•

“Simply, his allegations are unsupported [by the medical evidence].” (Tr. 26).

•

“He has reported his daily activities are rather minimal. . . . I find that this is simply a matter
of choice given the marked and gross disparity between clinical findings and subjective
allegations.” (Tr. 26-27).

•

“Again, the objective findings are highly inconsistent with the alleged degree of limitation,
and I note that no treating physician has placed any restriction on his activities.” (Tr. 27).

•

“In summary, clinical notations and objective findings are highly inconsistent with his
allegations of rather severe functional limitations.” (Tr. 27).

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•

“In summary, as set forth above, I find that the claimant’s subjective complaints are not
medically supported and are not credible in the intensity alleged.” (Tr. 28).
These findings are entirely improper. 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, based upon these findings and
because the ALJ disregarded Plaintiff’s subjective complaints based solely on the fact that they are
not supported by the objective medical evidence, this case must be reversed and remanded for further
consideration of Polaski.4
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 17th day of July 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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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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