Morrison v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 7, 2011. (dmc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
DENISE J. MORRISON
Civil No. 6:10-cv-06021
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Denise J. Morrison (“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 her application
for Disability Insurance Benefits (“DIB”) and a period of disability under Title II 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 an application for DIB on November 2, 2006. (Tr. 8, 109).
Plaintiff alleged she was disabled due to several different impairments, including muscle disease,
metabolic myopathy, and hypertension. (Tr. 116). Plaintiff alleged an onset date of October 30,
2006. (Tr. 116). This application was denied initially and again upon reconsideration. (Tr. 59, 68).
Thereafter, Plaintiff requested an administrative hearing on her application, and this hearing request
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.”
was granted. (Tr. 70).
Plaintiff’s administrative hearing was held on November 4, 2008 in Hot Springs, Arkansas.
(Tr. 20-56). Plaintiff was present and was represented by counsel, Charles Padgham, at this hearing.
Id. Plaintiff, Vocational Expert (“VE”) Dr. Tyra Watts, and Medical Expert (“ME”) Dr. John Murry
testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-five (45) years old, which
is defined as a “younger person” under 20 C.F.R. § 404.1563(c), and had completed high school.
On July 9, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s application for
DIB. (Tr. 8-19). In this decision, the ALJ determined Plaintiff met the insured status requirements
of the Act through December 31, 2010. (Tr. 10, Finding 1). The ALJ determined Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”) since October 30, 2006, her alleged onset date.
(Tr. 10, Finding 2). The ALJ determined Plaintiff had the following severe impairments: metabolic
myopathy, fibromyalgia, elevated creatine phosphokinase, hypertension, and obesity. (Tr. 10,
Finding 3). The ALJ also determined Plaintiff’s impairments did not meet or medically equal the
requirements of any of the Listing of Impairments in Appendix 1 to Subpart P of Regulations No.
4 (“Listings”). (Tr. 13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 13-18, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to perform the full range of medium work. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18-19, Finding 6). The
ALJ determined Plaintiff’s PRW included work as a scriber and veterinary technician. (Tr. 19).
Based upon her RFC, the ALJ determined Plaintiff would be able to perform this PRW. Id. Based
upon these findings, the ALJ determined Plaintiff had not been under a disability as defined by the
Act from October 30, 2006 through the date of the ALJ’s decision. (Tr. 19, Finding 7).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 101). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On March 18, 2010, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on March 30, 2010. ECF No. 5. Both Parties have filed
appeal briefs. ECF Nos. 7-8. 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
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 her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 7 at 3-13. Specifically, Plaintiff claims the ALJ erred
(1) in evaluating her RFC; (2) in evaluating her subjective complaints; and (3) in the weight given
to treating physician opinions. In response, the Defendant argues the ALJ did not err in any of his
findings. ECF No. 8. Because this Court finds the ALJ improperly evaluated Plaintiff’s subjective
complaints, this Court will only address this issue Plaintiff raised.
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.
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
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.
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. Instead of
evaluating the Polaski factors and noting inconsistencies between Plaintiff’s subjective complaints
and the evidence in the record, the ALJ merely stated the Polaski factors, summarized Plaintiff’s
medical records, and listed Plaintiff’s subjective complaints of disabling limitations. The ALJ did
state that the Plaintiff’s daily activities appear to be normal. This was based on the finding that
Plaintiff was able to play computer games and if she were in constant severe pain she would be
unable to play computer games. The ALJ also found Plaintiff was able to write lengthy handwritten
notes. (Tr. 18).
This Court disagrees with the ALJ’s finding that these activities are evidence of an active
lifestyle. These finding by the ALJ do not address the Plaintiff’s credibility nor are they inconsistent
with Plaintiff’s subjective complaints. 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.
The perfunctory analysis performed by the ALJ in this matter is insufficient under Polaski,
and this case should be reversed and remanded for further consideration consistent with Polaski.
Upon remand, the ALJ may still find Plaintiff not disabled, however a proper and complete analysis
pursuant to Polaski should be performed.3
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 7th day of July, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
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