Bough v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 24, 2014. (jn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MICHAEL RODNEY BOUGH
Civil No. 5:13-cv-05106
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Michael Rodney Bough (“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. 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 December 14, 2004. (Tr. 57-59,
552). In his applications, Plaintiff alleges being disabled due to the following:
Articular cartilage defect of left knee My knee doesn’t support my weight. It tends
to go out or lock up. This is when it is painful. Right now I can’t stand up for more
than a few minutes at a time and walking is done with a cane. Damage to the left
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.”
(Tr. 117-118). Plaintiff alleges an onset date of September 7, 2004. (Tr. 552). These applications
were denied initially and again upon reconsideration. (Tr. 38-42). Thereafter, Plaintiff requested
an administrative hearing, this administrative hearing was granted, and the ALJ issued a fully
unfavorable disability ruling denying Plaintiff disability benefits. (Tr. 17-27).
Plaintiff then appealed that fully unfavorable decision to this Court. See Bough v. SSA, 5:08cv-05061 (W.D. Ark. Mar. 20, 2008). On August 21, 2009, Plaintiff’s case was reversed and
remanded to give the ALJ the opportunity to fully comply with the requirements of Polaski. ECF
No. 11. In that action, the ALJ was directed to “analyze and evaluate the Plaintiff’s subjective
complaints.” ECF No. 10 at 7. After this remand, the ALJ held a second administrative hearing.
(Tr. 604-655). This hearing was held on September 18, 2009 in Fayetteville, Arkansas. Id.
Plaintiff was present at this hearing and was represented by counsel, Evelyn E. Brooks. (Tr.
604-655). Plaintiff and Vocational Expert (“VE”) John Massey testified at this hearing. Id. As of
the date of this hearing, Plaintiff was forty-two (42) years old, which is defined as a “younger
person” under 20 C.F.R. § 404.1563(c) (2008) (DIB) and and 20 C.F.R. § 416.963(c) (2008) (SSI).
(Tr. 69). As for his level of education, Plaintiff testified the highest level of education he completed
was high school with a semester of college. (Tr. 613).
On April 2, 2010, the ALJ entered a partially favorable disability determination. (Tr. 552564). In this decision, the ALJ found Plaintiff was disabled as of January 1, 2008. Id. However,
prior to January 1, 2008, the ALJ found Plaintiff was not disabled. Id.
Specifically, the ALJ found Plaintiff met the insured status requirements of the Act through
December 31, 2013. (Tr. 555, Finding 1). The ALJ found Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since his alleged onset date of September 7, 2004. (Tr. 555, Finding 2).
The ALJ determined Plaintiff had the following severe impairments since the time of his alleged
onset date: psoriatic arthritis, osteoarthritis, carpal tunnel syndrome (CTS), obesity, and depression.
(Tr. 555, 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. 555-557, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s RFC both before January 1, 2008 and after
January 1, 2008. First, the ALJ evaluated Plaintiff’s subjective complaints prior to January 1, 2008
and found his claimed limitations were not entirely credible. (Tr. 557-561, Finding 5). Second, the
ALJ determined that, prior to January 1, 2008, he retained the RFC to perform a limited range of
After careful consideration of the entire record, I find that prior to January 1, 2008,
the date the claimant became disabled, the claimant had the residual functional
capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except the claimant could not climb ladders, ropes or scaffolds and could only
occasionally climb ramps and stairs, balance, stoop, crouch, crawl and kneel. He
could have no more than moderate exposure to eights and uneven surfaces, no more
than moderate extension and flexion of the wrists bilaterally and no more than
occasional reaching with the right upper extremity.
The ALJ then evaluated Plaintiff’s RFC beginning on January 1, 2008 and found he retained
the following RFC after that date:
After careful consideration of the entire record, I find that beginning on January 1,
2008, the claimant has the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant cannot climb
ladders, ropes or scaffolds and can only occasionally climb ramps and stairs, balance,
stoop, crouch, crawl and kneel. He can have no more than moderate exposure to
heights and uneven surfaces and no more than moderate extension and flexion of the
wrists bilaterally, only occasional grasping and handling, and no more than
occasional reaching with the right upper extremity.
(Tr. 561-562, Finding 6).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 562-563, Finding 7). The
ALJ found Plaintiff retained the capacity to perform his PRW prior to January 1, 2008 but did not
retain the capacity to perform his PRW after that date. (Tr. 562-563, Findings 7-8). The ALJ also
determined that after January 1, 2008, Plaintiff was unable to perform other work existing in
significant numbers in the national economy. (Tr. 563-564, Finding 12). Based upon these findings,
the ALJ determined Plaintiff was disabled after January 1, 2008 but not before that date. (Tr. 564,
On May 24, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to
the jurisdiction of this Court on June 12, 2013. ECF No. 7. Both Parties have filed appeal briefs.
ECF Nos. 14-15. 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 raises the following arguments for reversal: (1) the ALJ erred in
considering his impairments in combination; (2) the ALJ erred in her credibility analysis; (3) the ALJ
erred in her RFC determination; and (4) the ALJ erred by disregarding the opinions and findings of
his primary treating physicians. ECF No. 14. Notably, Plaintiff only takes issue with the ALJ’s
findings prior to January 1, 2008. As established above, after January 1, 2008, the ALJ found
Plaintiff was disabled. Upon review, because the ALJ improperly evaluated Plaintiff’s subjective
complaints dated prior to January 1, 2008, 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. § 416.929.2 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.
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.
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.
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, in assessing Plaintiff’s subjective complaints dated prior to January 1,
2008, the ALJ did not comply with the requirements of Polaski. (Tr. 557-561). Indeed, the ALJ’s
failure to comply with Polaski is especially troubling because this is the second time Plaintiff’s case
has been remanded for proper consideration of Polaski. See Bough v. SSA, 5:08-cv-05061 (W.D.
Ark. Mar. 20, 2008). In the prior case, the Court admonished the ALJ for mentioning “Plaintiff’s
daily activities and some medications taken by Plaintiff” but not discussing “inconsistencies in the
claimed subjective complaints” and not performing “an analysis of the Polaski factors.” ECF No.
10 at 7.
Despite this admonishment in the prior case, the ALJ did not expressly outline any
inconsistencies or consider the Polaski factors in the present action. (Tr. 558). Instead, the ALJ
merely stated she had complied with Polaski and then discounted Plaintiff’s subjective complaints
because they were not supported by the medical evidence in the record: “I have reviewed the
claimant’s subjective complaints of pain and considered the claimant’s daily activities; the duration,
frequency and intensity of the pain; the precipitating and aggravating factors; the dosage,
effectiveness, and side effects of the medication; and the functional restrictions, as discussed more
fully below. After considering all of these factors, I find that the claimant’s pain was not disabling
prior to the established onset date. Before that date, medical evidence of record documented that
his pain was being controlled, to a large extent, by medications.” Id. (emphasis added).
Importantly, even though the ALJ stated the Polaski factors were “discussed more fully
below,” the ALJ did not discuss those factors “more fully below.” Instead, the ALJ solely focused
upon Plaintiff’s medical records to determine whether Plaintiff’s subjective complaints were
supported by them. (Tr. 557-561). Notably, the ALJ discounted Plaintiff’s subjective complaints
dated prior to January 1, 2008 based upon the following:
After carefully considering the record in this matter prior to the established onset
date, I conclude that the claimant retained the residual functional capacity to perform
a range of sedentary exertional level work. The residual functional capacity
assessment is supported by the objective medical evidence of record which
documents that the claimant’s condition had improved by July, 2007, enough for him
to stop using pain medications and return to work as well as the mental health
opinion of Dr. McCarty.
Id. (emphasis added). Again, the ALJ’s decision to discount Plaintiff’s subjective complaints was
not based upon her analysis of the Polaski factors. The ALJ discounted Plaintiff’s subjective
complaints because they were not fully supported by the medical evidence in the record. This was
improper. See Polaski, 739 F.2d at 1322 (holding the ALJ cannot discount a claimant’s subjective
complaints “solely because the objective medical evidence does not fully support them [the
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.3 A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 24th day of July 2014.
/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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