Whitney v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 21, 2011. (dmc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
DON L. WHITNEY
Civil No. 6:10-cv-06027
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Don L. Whitney (“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
Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and a 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. 5.1
Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final
judgment in this matter.
Plaintiff protectively filed applications for DIB and SSI on July 29, 2005. (Tr. 10, 57-61).
Plaintiff alleged he was disabled due to several different impairments, including left leg fracture, and
back, knee and foot pain. (Tr. 71-74). Plaintiff alleged an onset date of July 3, 2005. (Tr. 71).
These applications were denied initially and again upon reconsideration. (Tr. 35-40). Thereafter,
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.”
Plaintiff requested an administrative hearing on his applications, and this hearing request was
granted. (Tr. 34).
Plaintiff’s administrative hearing was held on March 8, 2007 in Hot Springs, Arkansas. (Tr.
271-292). Plaintiff was present and was represented by counsel, William Mortiz, at this hearing.
Id. Plaintiff and his wife, Debbie Whitney, testified at this hearing. Id. Vocational Expert (“VE”)
Nancy Hughes was present at this hearing, but did not testify. 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 a GED. (Tr. 275, 282).
On December 3, 2007, the ALJ entered an unfavorable decision denying Plaintiff’s
applications for DIB and SSI. (Tr. 10-19). In this decision, the ALJ determined Plaintiff met the
insured status requirements of the Act through June 30, 2010. (Tr. 12, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since July 3, 2005,
his alleged onset date. (Tr. 12, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: fracture of the proximal tibia and symptomatic lumbar degenerative disc disease. (Tr.
12, 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 his RFC.
(Tr. 13-18, 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 RFC to perform the full range of sedentary work activity. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, Finding 6). The ALJ
determined Plaintiff’s PRW included work as a roofer, shipping and routing clerk, and grocery store
clerk. (Tr. 18). Based upon his RFC, the ALJ determined Plaintiff would be unable to perform this
The ALJ then used Medical-Vocational Guidelines Rule 201.27 to reach a conclusion of “not
disabled,” based on Plaintiff’s age, education, vocational background, and residual functional
capacity. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.27. (Tr. 18-19, Finding 10). The ALJ then
determined Plaintiff had not been under a “disability,” as defined by the Act, at any time through the
date of his decision. (Tr. 19, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 270). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 3-5). On April 9, 2010, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on April 21, 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 his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 7 at 3-8. Specifically, Plaintiff claims the ALJ erred
(1) in evaluating his subjective complaints, (2) by failing to properly develop the record, and (3) in
evaluating his RFC. 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
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.
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
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 Defendant argues in his brief some points in support of the argument that the ALJ
performed a proper Polaski analysis. ECF No. 8, Pg. 9. These included: (A) Plaintiff resumed
working approximately 20 hours per week at a convenience store after his injury which was same
schedule as prior to his leg injury and (B) Although Plaintiff testified he quit school due to the
inability to sit, the evidence indicates he either quit school or was asked to withdraw based upon his
failure to master the materials. These alleged inconsistencies were not discussed by the ALJ. The
ALJ only stated that the Plaintiff was working 20 hours a week and that Plaintiff returned to school
for eighteen months but could not sit long enough. ECF No. 14-15.
It is the ALJ’s duty to provide full analysis of the Polaski factors and state any
inconsistencies in the opinion. See Ford v. Astrue, 518 F 3d 979, 982-83 (8th Cir. 2008) (requiring
the ALJ to detail the reasons for discrediting a claimant’s subjective complaints and set forth the
inconsistencies he or she found). It is not sufficient for the Defendant to comb the record and
provide support for the ALJ’s Polaski determination after the fact.
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 21st 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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