Formby v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 11, 2018. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MICHAEL W. FORMBY
Civil No. 4:17-cv-04036
NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration
Michael W. Formby (“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, Supplemental Security Income (“SSI”), and Disability
Insurance Benefits (“DIB”) under Title 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 February 6, 2014 (DIB) and on May
15, 2014 (SSI). (Tr. 113). In these applications, Plaintiff alleges being disabled due to lumbar
spondylosis. (Tr. 248). Plaintiff alleges an onset date of October 30, 2013. (Tr. 113). His
applications were denied initially and again upon reconsideration. (Tr. 149-169).
Plaintiff requested an administrative hearing on his denied applications. (Tr. 180-181). This
hearing request was granted, and Plaintiff’s administrative hearing was held on September 23, 2015
in Texarkana, Arkansas. (Tr. 126-148). At this hearing, Plaintiff was present and was represented
by counsel, Greg Giles. Id. Plaintiff and Vocational Expert (“VE”) James Wallace testified at this
On February 4, 2016, after the administrative hearing, the ALJ entered an unfavorable
decision denying Plaintiff’s disability applications. (Tr. 110-121). The ALJ determined Plaintiff met
the insured status requirements of the Act through December 31, 2018. (Tr. 115, Finding 1). The
ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since October
30, 2013, his alleged onset date. (Tr. 115, Finding 3). The ALJ determined Plaintiff had the
following severe impairments: degenerative disc disease of the lumbar spine and lumbar
levoscoliosis. (Tr. 115-117, Finding 3). The ALJ also determined that Plaintiff did not have an
impairment or combination of impairments that 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. 117,
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his
Residual Functional Capacity (“RFC”). (Tr. 117-119, Finding 5). First, the ALJ evaluated Plaintiff’
subjective complaints and found they were not entirely credible. Id. Second, the ALJ determined
Plaintiff had the following RFC:
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 the claimant can occasionally balance, knee,
crouch, crawl, stoop, and climb ramps/stairs, but no climbing of ladders, ropes, or
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 119, Finding 6).
Considering his RFC, the ALJ determined Plaintiff did not retain the capacity to perform his PRW.
(Tr. 119, Finding 6). Based upon this finding, the ALJ determined Plaintiff had not been under a
disability (as defined by the Act) from October 30, 2013 (alleged onset date) through February 4,
2016 (ALJ’s decision date). (Tr. 121, Finding 11).
Plaintiff sought review with the Appeals Council. On May 8, 2017, the Appeals Council
denied this request for review. (Tr. 1-3). On May 26, 2017, Plaintiff filed a Complaint in this case.
ECF No. 1. Both Parties have filed appeal briefs and have consented to the jurisdiction of this Court.
ECF Nos. 5, 11-12. 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 claims the following: (1) the ALJ erred in evaluating Listing 1.04
and in assessing his RFC; and (2) the ALJ erred by failing to give proper weight to the opinion of
his treating physician. ECF No. 11 at 1-20. Upon review, the Court finds the ALJ has not a supplied
a sufficient basis for assessing Plaintiff’s RFC and discounting Plaintiff’s subjective complaints.
Thus, the Court will only consider Plaintiff’s first 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. § 416.929.1 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
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.
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 comply with the requirements of Polaski. Instead, the
ALJ based his credibility determination upon the fact Plaintiff’s subjective complaints were not
supported by his medical records. (Tr. 119). The ALJ summarized Plaintiff’s medical records and
discounted his subjective complaints solely because they were not supported by the objective
In sum, the above residual functional capacity assessment is supported by the
objective medical evidence of record and the observations of the consultative
examiners, state agency medical consultant, and medical expert, as discussed.
(Tr. 119) (emphasis added). Such a finding was improper. 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 an insufficient basis 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 11th day of April 2018.
/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?