Veazey v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on September 29, 2011. (dmc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
PATRICIA ANN VEAZEY
Civil No. 6:10-cv-06058
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Patricia Ann Veazey (“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 a period of disability and Disability Insurance Benefits (“DIB”) 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 30, 2005. (Tr. 11, 46-47).
Plaintiff alleged she was disabled due to a fungus in her lungs. (Tr. 131-A). Plaintiff alleged an
onset date of November 30, 2005. (Tr. 11, 131-A). These applications were denied initially and
again upon reconsideration. (Tr. 26-28).
Thereafter, on June 1, 2007, Plaintiff requested an administrative hearing on her application,
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.”
and this hearing request was granted. (Tr. 29). Plaintiff’s administrative hearing was held on April
2, 2008 in Hot Springs, Arkansas. (Tr. 389-405). Plaintiff was present but was not represented by
counsel at this hearing. (Tr. 389-405). Only Plaintiff and a witness for Plaintiff testified at this
hearing. Id. At the time of this hearing, Plaintiff was sixty-five (65) years old, which is defined as
a “person of advanced age” under 20 C.F.R. § 404.1563(e), and had completed the tenth grade in
high school. (Tr. 394).
On September 26, 2008, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB. (Tr. 11-19). In this decision, the ALJ determined Plaintiff met the insured
status requirements of the Act through December 31, 2007. (Tr. 13, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since November 30,
2005, her alleged onset date. (Tr. 13, Finding 2). The ALJ determined Plaintiff had the following
severe impairments: granulomatous disease of the left lower lobe with bronchial artery erosion and
hypertension (generally well controlled). (Tr. 13, Finding 3). 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. 13-14, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 14-18, 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 following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform the full range of light work
as defined in 20 CFR 404.1567(b). Thus, the undersigned Administrative Law Judge
has concluded that the claimant retains the ability to lift-carry and/or push-pull up to
20 pounds occasionally and 10 pounds frequently with the ability to stand and/or
walk up to 6-8 hours in an 8-hour workday and the ability to sit without significant
limitations. The claimant should avoid concentrated exposure to fumes, odors, dusts,
gases, poor ventilation, etc.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 19, Finding 6). The ALJ
determined Plaintiff’s PRW included work as a restaurant cook and a precision cutter (production
worker). Id. Based upon her RFC, the ALJ determined Plaintiff’s RFC did not preclude her from
performing any of this PRW. Id. Accordingly, the ALJ determined Plaintiff had not been under a
disability, as defined by the Act, from November 30, 2005 through the date of his decision or
through September 26, 2008. (Tr. 19, Finding 7).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 6-7). See 20 C.F.R. § 404.968. The Appeals Council declined to review this
unfavorable decision. (Tr. 3-5). On August 9, 2010, Plaintiff filed the present appeal. ECF No. 1.
The Parties consented to the jurisdiction of this Court on August 20, 2010. ECF No. 5. Both Parties
have filed appeal briefs. ECF Nos. 12-13. 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 her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 12. Specifically, Plaintiff claims the ALJ erred by
improperly discrediting her testimony regarding her impairments. Id. Because this Court agrees
with Plaintiff’s argument and finds the ALJ improperly evaluated Plaintiff’s subjective complaints,
this Court will only address that 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
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 summarized the medical records and recited he
complied with Polaski:
As for the opinion evidence, as further required by Polaski v. Heckler, the
Administrative Law Judge has also given careful consideration to the medical
evidence, including the observations and opinions of treating and examining
physicians, relative to what effect, if any, the claimant’s symptoms might have on her
ability to engage in substantial gainful work activity.
The ALJ then found Plaintiff’s subjective complaints were not credible because they were
not supported by the objective medical evidence:
Notably, there is no probative, objective medical evidence to show that the claimant
has ever been advised by any treating or examining physician that her symptoms are
of such severity as to completely preclude involvement in substantial gainful activity.
There is also no objective medical evidence to show that the claimant has ever been
medically advised to permanently limit activities secondary to any medically
determinable impairment or combination of impairments.
Instead of discounting Plaintiff’s subjective complaints based upon the medical evidence
alone, the ALJ was also required to evaluate the Polaski factors. See Polaski, 739 F.2d at 1322
(holding the ALJ cannot discount Plaintiff’s subjective complaints “solely because the objective
medical evidence does not fully support them [the subjective complaints]”). Because the ALJ did
not comply with Polaski, this case must be reversed and remanded.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 29th day of September, 2011.
/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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