Bates v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on June 1, 2016. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 4:15-cv-04090
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Teddy Bates (“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 a
period of disability, 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. 5.1 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 September 11, 2012 (DIB) and on
September 17, 2012 (SSI). (Tr. 10). In his applications, Plaintiff alleges being disabled due to
shoulder problems, back problems, and leg problems. (Tr. 245). Plaintiff alleges an onset date of
August 9, 2010. (Tr. 10). These applications were denied initially and again upon reconsideration.
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.”
Thereafter, Plaintiff requested an administrative hearing on his denied applications, and this
hearing request was granted. (Tr. 30-55). Plaintiff’s administrative hearing was held on March 7,
2014 in Texarkana, Arkansas. Id. Plaintiff was present and was represented by counsel at this
hearing. Id. Plaintiff and Vocational Expert (“VE”) Ms. Parker2 testified at this hearing. Id. At this
hearing, Plaintiff testified he was forty-nine (49) years old, which is defined as a “younger person”
under 20 C.F.R. § 416.963(c) (SSI) and 20 C.F.R. § 404.1563(c) (DIB). (Tr. 32). As for his level
of education, Plaintiff testified he had obtained his GED and also completed some vocational
training. (Tr. 32-33).
After this hearing, on May 23, 2014, the ALJ entered an unfavorable decision denying
The ALJ determined Plaintiff met the insured status
requirements of the Act through September 30, 2015. (Tr. 12, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since August 9, 2010, his alleged
onset date. (Tr. 12, Finding 2). The ALJ determined Plaintiff had the following severe impairments:
lumbar degenerative disc disease, degenerative two left shoulder surgeries and right shoulder rotator
cuff tear, knee degenerative joint disease, diabetes mellitus, depression, anxiety, and organic mental
impairment. (Tr. 12-15, Finding 3). Despite being severe, the ALJ determined these 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. 15-17, Finding 4).
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (Tr. 17-23,
Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found his claimed
The first name of “Ms. Parker” was not included in the transcript.
limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC
to perform the following:
The residual functional capacity produced by the medically determinable
impairments permits the lifting of 10 pounds occasionally, and to frequently lift
and/or carry less than 10 pounds, and to walk and stand for 2 hours in an 8 hour
workday, and sit for 6 hours in an 8 hour workday, as defined by the regulations at
20 CFR §404. The claimant cannot climb, use ladders, ropes, scaffolds or crawl.
The claimant can occasionally balance, stoop, bend, squat, kneel, and crouch. The
claimant should avoid reaching overhead and can frequently but not constantly
handle and finger. The claimant can make simple work related decisions, and has the
ability to understand, carryout, and remember short and simple tasks and instructions.
The claimant requires nonpublic work, and requires minimal coworker or supervisory
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff was unable
to perform any of his PRW. (Tr. 23-24, Finding 6). The ALJ then considered whether Plaintiff
retained the capacity to perform other work existing in significant numbers in the national economy.
(Tr. 24-25, Finding 10). The VE testified at the administrative hearing regarding this issue. Id.
Specifically, the VE testified that, given Plaintiff’s RFC and other limitations, a hypothetical person
would be able to perform the requirements of two unskilled, sedentary jobs: (1) order clerk with
185,000 such jobs in the nation and 3,200 such jobs in Arkansas; and (2) change account clerk with
180,000 such jobs in the nation and 4,300 such jobs in Arkansas. (Tr. 24). Based upon this
testimony, and because Plaintiff retained the capacity to perform these occupations, the ALJ
determined Plaintiff had not been under a disability (as defined in the Act) from August 9, 2010
through the date of his decision or through May 23, 2014. (Tr. 25, Finding 11).
Plaintiff then requested the Appeals Council’s review of the ALJ’s unfavorable decision, and
the Appeals Council denied Plaintiff’s request for review. (Tr. 1-3). Thereafter, on September 16,
2015, Plaintiff filed the present appeal with this Court. ECF No. 1. The Parties consented to the
jurisdiction of this Court on September 17, 2015. ECF No. 5. 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 raises one issue for reversal. ECF No. 11 at 4-20. Specifically,
Plaintiff claims the ALJ erred in finding his impairments did not meet or equal the requirements of
one of the Listings. Id. In his briefing on this issue, Plaintiff also raises another issue: whether the
ALJ properly evaluated his subjective complaints. ECF No. 11 at 16-20. Upon review, the Court
finds the ALJ’s evaluation of his credibility and his subjective complaints is not supported by
substantial evidence in the record, and this case must be reversed and remanded. Accordingly, the
Court will only address this 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.
Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 r equire 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.
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 comply with the requirements of Polaski. Instead of
complying with Polaski and considering the Polaski factors, the ALJ only focused upon whether
Plaintiff’s subjective complaints were supported by his medical records. (Tr. 18-23). Indeed, the
ALJ entirely missed the point of Polaski and determined Plaintiff’s subjective complaints could not
be valid if they were not supported by his medical records:
In this case, the claimant appears to be sincere and genuine regarding the pain and
limitations she4 [he] states she [he] experienced with the medical impairments. But
perception alone does not satisfy the two step analysis required by SSR 96-7p. If one
solely relied upon the claimant’s own perception of functional ability, there would
be no need for a disability determination (citations omitted). The disability
evaluation covers the entire subjective and objective record.
(Tr. 21) (emphasis in the original).
Notably, the ALJ entirely ignored his responsibility to consider Plaintiff’s subjective
complaints in the context of the Polaski factors and not simply discount those complaints because
there was no medical support for them. See Polaski, 739 F.2d at 1322 (holding a claimant’s
According to the transcript and Plaintiff’s medical records, Plaintiff is a male, but it appears the
ALJ improperly characterized him as a female.
subjective complaints cannot be discounted “solely because the objective medical evidence does not
fully support them [the subjective complaints]”). Accordingly, because the ALJ misapplied the
relevant law and provided no valid reason for discounting Plaintiff’s subjective complaints, this case
must be reversed and remanded.
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.5 A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 1st day of June 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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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