Witherspoon v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 2, 2015. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
ROY WITHERSPOON, JR.
Civil No. 4:14-cv-04053
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Roy Witherspoon, Jr. (“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 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) 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 his disability applications on February 10, 2012. (Tr. 38, 142-
149). In his applications, Plaintiff alleges being disabled due to back problems, neck problems and
high blood pressure. (Tr. 172). Plaintiff alleged an onset date of May 15, 2010 which was later
amended to April 27, 2010. (Tr. 38, 142, 144). These applications were denied initially and again
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.”
upon reconsideration. (Tr. 76-79).
Thereafter, Plaintiff requested an administrative hearing on his denied applications, and this
hearing request was granted. (Tr. 105-106). On January 8, 2013, the ALJ held an administrative
hearing to address Plaintiff’s applications. (Tr. 51-75). Plaintiff was present at this hearing and was
represented by counsel, Greg Giles. Id. Plaintiff and Vocational Expert (“VE”) Russell Bowden
testified at this hearing. Id. At the time of this hearing, Plaintiff was thirty-seven (37) years old,
which is defined as a “younger person” under 20 C.F.R. § 404.1563(c), and had a high school
education. (Tr. 56-57).
After this hearing, on January 8, 2013, the ALJ entered an unfavorable decision denying
Plaintiff’s application for DIB and SSI. (Tr. 38-46). In this decision, the ALJ found Plaintiff met
the insured status of the Act through December 31, 2013. (Tr. 40, Finding 1). The also ALJ found
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 27, 2010, his alleged
onset date. (Tr. 40, Finding 2).
The ALJ determined Plaintiff had the following severe impairments: lumbar disc disease
status post-surgery, obesity, cervical disc disease, left shoulder tendinosis, and mild AC joint
degenerative joint disease. (Tr. 40, 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. 41, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 41-44, 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 sedentary work with occasional postural activities of no climbing ladders, ropes,
or scaffolds; and occasional overhead reaching with the left upper extremity. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was unable
to perform his PRW. (Tr. 44, Finding 6). The ALJ then considered whether Plaintiff retained the
capacity to perform other work existing in significant numbers in the national economy. (Tr. 45-46,
Finding 10). The VE testified at the administrative hearing on this issue. Id. Based upon that
testimony, the ALJ determined Plaintiff retained the capacity to perform the following occupations:
(1) eyeglass frame packager with 8,000 such jobs in the United States and 800 such jobs in the
region; (2) lamp shade assembler with 7,250 such jobs in the United States and 725 such jobs in the
region; and (3) semi-conductor loader with 24,000 such jobs in the United States and 2,400 such jobs
in the region. 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 April 27, 2010
through the date of his decision. (Tr. 46, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 10). On February 21, 2014, the Appeals Council denied this request for review. (Tr.
1-4). Plaintiff then filed the present appeal on April 3, 2014. ECF No. 1. The Parties consented to
the jurisdiction of this Court on April 3, 2014. ECF No. 7. Both Parties have filed appeal briefs.
ECF Nos. 12, 15. 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 disability determination is not supported by
substantial evidence in the record. ECF No. 12, Pg. 7-19. Specifically, Plaintiff claims the ALJ
erred (1) in failing to find Plaintiff met a Listing, (2) in failing to find Plaintiff met a closed period
of disability, (3) in the credibility determination of Plaintiff, and (4) by failing to fully and fairly
develop the record. Id. In response, the Defendant argues the ALJ did not err in any of his findings.
ECF No. 15. 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, 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
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.
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.
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 did not perform a proper Polaski analysis. While the ALJ
indicated the factors from Polaski had been considered (Tr. 42-43), 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,
briefly discussed some daily activities, 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:
after careful consideration of the evidence find 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 for the reasons explained in
The ALJ discounted Plaintiff’s subjective complaints for the sole reason that they were not
consistent with his medical records. The ALJ’s decision to discount Plaintiff’s subjective allegations
based upon the medical evidence alone was improper. 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 2nd day of April 2015.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?