Watson v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 12, 2016. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
BRENT KERMIT WATSON

PLAINTIFF

vs.

Civil No. 4:15-cv-04029

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Brent Kermit Watson (“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. 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 applications on January 14, 2013. (Tr. 18, 183-192).

In his applications, Plaintiff alleges being disabled due to a stroke. (Tr. 228). Plaintiff alleged an
onset date of January 9, 2013. (Tr. 18). These applications were denied initially and again upon
reconsideration. (Tr. 18, 91-101).

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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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Thereafter, Plaintiff requested an administrative hearing on his denied applications, and this
hearing request was granted. (Tr. 127-128). On June 13, 2014, the ALJ held an administrative
hearing to address Plaintiff’s applications. (Tr. 41-73). Plaintiff was present at this hearing and was
represented by counsel, Patrick O’Neal. Id. Plaintiff and Vocational Expert (“VE”) Donald
Anderson testified at this hearing. Id. At the time of this hearing, Plaintiff was forty (40) years old,
which is defined as a “younger person” under 20 C.F.R. § 404.1563(c), had graduated from high
school, and had a certification in welding. (Tr. 45).
After this hearing, on January 8, 2015, the ALJ entered an unfavorable decision denying
Plaintiff’s application for DIB and SSI. (Tr. 18-32). In this decision, the ALJ found Plaintiff met
the insured status of the Act through March 31, 2016. (Tr. 21, Finding 1). The ALJ also found
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since January 9, 2013, his alleged
onset date. (Tr. 21, Finding 2).
The ALJ determined Plaintiff had the following severe impairments: disorders of the back,
cerebrovascular accident, late effects of cerebrovascular disease, and valvular heart disease or other
stenotic defects or valvular regurgitation. (Tr. 21, 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. 22, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 23-29, 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, specifically with the ability to lift or carry up to 10 pounds
frequently and 20 pounds occasionally; stand or walk for up to 6 hours of an 8-hour workday, and

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sit for up to 6 hours in an 8-hour workday; not limited in his ability to push or pull with his
extremities, and had no postural, manipulation, environmental, or communicative limitations. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was unable
to perform his PRW. (Tr. 29, Finding 6). The ALJ then considered whether Plaintiff retained the
capacity to perform other work existing in significant numbers in the national economy. (Tr. 30-31,
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) cleaner with 225,000 such jobs in the United States and 1,900 such jobs in Arkansas; (2) bagger
with 83,000 such jobs in the United States and 600 such jobs in Arkansas; and (3) assembler with
52,000 such jobs in the United States and 1,300 such jobs in Arkansas. 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 January 9, 2013 through the date of his decision. (Tr. 31,
Finding 10).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 12). On February 3, 2015, the Appeals Council denied this request for review. (Tr.
2-5). Plaintiff then filed the present appeal on March 16, 2015. ECF No. 1. The Parties consented
to the jurisdiction of this Court on March 17, 2015. ECF No. 6. Both Parties have filed appeal
briefs. ECF Nos. 9, 10. 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

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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
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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 claims the ALJ’s disability determination is not supported by

substantial evidence in the record. ECF No. 9, Pg. 4-10. Specifically, Plaintiff claims the ALJ erred
(1) in the credibility determination of Plaintiff, and (2) at the Step 5 analysis. Id. In response, the
Defendant argues the ALJ did not err in any of his findings. ECF No. 10. 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

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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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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 did not perform a proper Polaski analysis. While the ALJ
indicated the factors from Polaski had been considered (Tr. 22, 26), 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 prior work history, and recognized the proper legal standard for assessing
credibility. In his opinion, the ALJ discussed in detail Polaski and what must be examined but he
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failed to articulate the reasons for discrediting Plaintiff’s testimony or address any inconsistencies.
In the end, 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.
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 12th day of February 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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