Johnson v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on August 26, 2011. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
M. ELLEN JOHNSON
vs.

PLAINTIFF
Civil No. 6:10-cv-06039

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
M. Ellen 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 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 postjudgment 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.
1. Background:
Plaintiff protectively filed an application for DIB on April 19, 2006. (Tr. 15, 36). Plaintiff
alleged she was disabled due to several different impairments, including severe arthritis in both
knees, osteoarthritis, and asthma. (Tr. 100). Plaintiff alleged an onset date of February 28, 2006.
(Tr. 100). This application was denied initially and again upon reconsideration. (Tr. 30-35).
Thereafter, Plaintiff requested an administrative hearing on her application, and this hearing request

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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.”

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was granted. (Tr. 26).
Plaintiff’s administrative hearing was held on November 7, 2007 in Hot Springs, Arkansas.
(Tr. 502-519). Plaintiff was present and was represented by counsel, Don Pullen, at this hearing.
Id. Plaintiff testified at this hearing. Id. Vocational Expert (“VE”) Tyra Watts was present at this
hearing, but did not testify. Id. At the time 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), and had a 9th grade education.
(Tr. 505).
On January 25, 2008, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 15-20). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2011. (Tr. 19, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since February 28, 2006, her
alleged onset date. (Tr. 19, Finding 2).
The ALJ determined Plaintiff had the following severe impairments: obesity and idiopathic
knee pain. (Tr. 19, 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. 19, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 16-19, Findings 5, 6). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
claimed limitations were only credible to the extent she is unable to work as a nurse or other activity
which requires extensive standing and walking. But her allegations, when examined overall, did not
rise to the level correlated with disability. Id. Second, the ALJ determined Plaintiff retained the
RFC to perform the full range of sedentary work activity. Id.

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The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18-19, Finding 7). The
ALJ determined Plaintiff’s PRW included work as a nurse aid. (Tr. 17). Based upon her RFC, the
ALJ determined Plaintiff would be unable to perform this PRW. Id.
The ALJ then used Medical-Vocational Guidelines Rule 201.25 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, § 201.25. (Tr. 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. 11). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 4-6). On May 25, 2010, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on June 16, 2010. ECF No. 5. Both Parties have filed
appeal briefs. ECF Nos. 8-9. 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

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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
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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).
3. Discussion:
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 8 at 7-19. Specifically, Plaintiff claims the ALJ erred
(1) in evaluating her subjective complaints, (2) by failing to find Plaintiff’s impairments met or
equaled a Listing, (3) in evaluating her RFC, (4) by failing to properly evaluate the medical evidence,
and (5) by failing to question a VE at the hearing. In response, the Defendant argues the ALJ did not
err in any of his findings. ECF No. 9. 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

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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.

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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
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 some of Plaintiff’s subjective complaints of disabling limitations. The
ALJ also stated the following:
After considering all the evidence of record, the Administrative Law Judge finds the
claimant’s subjective allegations regarding her symptoms and limitations to be
credible to the extent that she is unable to work as a nurses aid or performing other
activity which requires extensive standing and walking. Nonetheless, her allegations
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when examined overall do not rise to a level correlated with disability.
(Tr. 17). The ALJ only found Plaintiff’s subjective complaints credible in so far as she could work
as a nurse, otherwise, according to the ALJ they were not credible. By discounting Plaintiff’s
subjective complaints without analysis, the ALJ failed to comply with the requirements of Polaski.
Thus, this case must be reversed and remanded.
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
4. Conclusion:
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 26th day of August, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
this appeal.

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