Johnson v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on August 18, 2017. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 4:16-cv-04082
NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration
John Johnson (“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 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. 5. 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 August 15, 2013 (DIB) and on
August 23, 2013 (SSI). (Tr. 296). In these applications, Plaintiff alleges being disabled due to
COPD, anxiety attacks, and high blood pressure. (Tr. 512). Plaintiff’s alleged onset date is May 23,
2013. (Tr. 296). His applications were denied initially and again upon reconsideration. (Tr. 350400).
Plaintiff requested an administrative hearing on his denied applications. (Tr. 431-432). This
request was granted, and Plaintiff’s administrative hearing was held on April 14, 2015 in Texarkana,
Arkansas. (Tr. 321-349). At this hearing, Plaintiff was present and was represented by Greg Giles.
Id. Plaintiff and Vocational Expert (“VE”) Ms. Johnson testified at this hearing. Id. During this
hearing, Plaintiff testified he was fifty (50) years old on his alleged onset date. (Tr. 323-324). As
such, he was categorized as a “person closely approaching advanced age” under 20 C.F.R. §
404.1563(d) (DIB) and 20 C.F.R. § 416.965(d) (SSI). Id. As for his education, Plaintiff testified he
had obtained his GED. (Tr. 326).
On May 28, 2015, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s applications. (Tr. 293-306). The ALJ determined Plaintiff met the
insured status requirements of the Act through December 31, 2017. (Tr. 298, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 23, 2013,
his alleged onset date. (Tr. 298, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: hypertension, COPD, and obstructive sleep apnea. (Tr. 298-300, Finding 3). 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. 300,
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 300-304, 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 capacity to perform the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except he must avoid unprotected heights and
dangerous, moving machinery, as well as any exposure to extreme temperatures. The
claimant can also tolerate occasional exposure to pulmonary irritants such as gases,
smoke, cleaning supplies, and perfumes.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff did not retain
the capacity to perform any of his PRW. (Tr. 304, Finding 6). The ALJ then considered whether
Plaintiff retained the capacity to perform other work existing in significant numbers in the national
economy. (Tr. 304-305, Finding 10). The VE testified at the administrative hearing regarding this
Based upon this testimony and considering his RFC, the ALJ determined Plaintiff retained
the capacity to perform the following semi-skilled jobs: (1) information clerk (sedentary) with
approximately 973,000 such jobs nationally; (2) customer service clerk (light) with approximately
114,000 such jobs nationally; and (3) lock installer (light) with approximately 206,000 such jobs
nationally. (Tr. 304-305). 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, at any time from
May 23, 2013 through the date of her decision or through May 28, 2015. (Tr. 305, Finding 11).
Plaintiff sought review with the Appeals Council. On August 1, 2016, the Appeals Council
denied his request for review. (Tr. 1-3). On September 1, 2016, Plaintiff filed a Complaint in his
case. ECF No. 1. Both Parties have filed appeal briefs and have consented to the jurisdiction of this
Court. ECF Nos. 5, 11, 13. This case is now ready for determination.
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)
(2010); 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 two arguments for reversal: (1) the ALJ erred in finding
his impairments did not meet the requirements of the Listings; and (2) the ALJ erred in assessing his
RFC. ECF No. 11 at 1-19. Defendant has responded to Plaintiff’s brief and claims his case should
be affirmed. ECF No. 13. Upon review, the Court finds the ALJ did err in assessing Plaintiff’s RFC
and in considering his subjective complaints. Thus, the 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. § 416.929.1 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
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.
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 specifically discounted
Plaintiff’s alleged limitations for the sole reason that they were not supported by his medical records.
(Tr. 300-304). Notably, the ALJ recited he had considered Plaintiff’s subjective complaints and then
stated the following:
After careful consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to cause
symptoms; however, the claimant’s statements considering the intensity, persistence
and limiting effects of these symptoms are not entirely credible for the reasons
explained in this decision.
The “reasons” outlined in the decision, however, were truly only one reason: Plaintiff’s
allegations were not supported by his medical records. Indeed, the ALJ repeatedly referenced the
“objective medical evidence” as being a basis for discounting Plaintiff’s allegations. (Tr. 300-304).
The ALJ also summarized his findings as follows: “In sum, the above residual functional capacity
assessment is supported by the objective medical evidence of record and the observations of the state
agency medical consultant.” (Tr. 304) (emphasis added).
The Court finds the ALJ’s decision to discount Plaintiff’s subjective complaints without a
sufficient basis was improper under Polaski. See Polaski, 739 F.2d at 1322 (holding a claimant’s
subjective complaints cannot be discounted “solely because the objective medical evidence does not
fully support them [the subjective complaints]”). Accordingly, because the ALJ provided no valid
reasons 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. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 18th day of August 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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