Cruz v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on June 14, 2012. (dmc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
ALISA D. CRUZ
Civil No. 6:11-cv-06041
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Alisa Cruz (“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 Supplemental
Security Income (“SSI”) and a period of disability under Title 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. 6.1 Pursuant to this authority, the Court issues this memorandum opinion and
orders the entry of a final judgment in this matter.
Plaintiff filed an application for disability benefits on July 8, 2005. (Tr. 18). Plaintiff alleged
she was disabled due to a back injury. (Tr. 139). Plaintiff alleged an onset date of March 15, 2005. (Tr.
140). This application was denied initially and again on reconsideration. (Tr. 83-91). Thereafter,
Plaintiff requested an administrative hearing on her application and this hearing request was granted.
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.”
This hearing was held on May 15, 2007 in Hot Springs, Arkansas. (Tr. 507-542). Plaintiff was
present and was represented by counsel, James Street, at this hearing. Id. Plaintiff, her witness Deborah
Boarhaus, and Vocational Expert (“VE”) Nancy Hughes testified at this hearing. Id. On the date of this
hearing, Plaintiff was twenty-five (25) years old, which is defined as a “younger person” under 20 C.F.R.
§ 404.1563(c) (2008), and had an eighth grade education. (Tr. 511, 530).
On October 22, 2007, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI. (Tr. 53-59). Thereafter, Plaintiff requested that the Appeals Council review the ALJ’s
unfavorable decision. (Tr. 49). See 20 C.F.R. § 404.968. On July 30, 2010, the Appeals Council
vacated the ALJ decision of October 22, 2007 and remanded the case to the ALJ. (Tr. 46-48).
Following remand, a second hearing was held on November 4, 2009 in Hot Springs, Arkansas.
(Tr. 543-577). Plaintiff was present and was represented by counsel, James Street, at this hearing. Id.
Plaintiff and Vocational Expert (“VE”) Elizabeth Clem testified at this hearing. Id. On the date of this
hearing, Plaintiff was twenty-seven (27) years old, which is defined as a “younger person” under 20
C.F.R. § 404.1563(c) (2008), and had an eighth grade education. (Tr. 548)
On February 26, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI. (Tr. 18-29). In this decision, the ALJ determined Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since September 8, 2005, her alleged onset date. (Tr. 20, Finding 1). The ALJ
determined Plaintiff had the severe impairments of scoliosis, protrusion at L5-S1, spondylosis,
fibromyalgia, sciatica, poor dentition, headaches, carpal tunnel syndrome in the left wrist, and
degenerative disc disease. (Tr. 20, Finding 2). The ALJ also determined, however, that Plaintiff did not
have an impairment or a combination of impairments that met or medically equaled one of the listed
impairments in the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 and No. 16
(“Listings”). (Tr. 23, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 23-27, Finding 4). The ALJ indicated he evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not fully credible. (Tr. 26). The ALJ also determined, based upon his review
of Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record, that Plaintiff
retained the RFC for less than the full range of medium work. (Tr. 23, Finding 4).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 27). The ALJ found Plaintiff
had no PRW. (Tr. 27, Finding 5). The ALJ, however, also determined there was other work existing
in significant numbers in the national economy Plaintiff could perform. (Tr. 28, Finding 9). The ALJ
based his determination upon the testimony of the VE. Id. Specifically, the VE testified that given all
Plaintiff’s vocational factors, a hypothetical individual would be able to perform the requirements of a
representative occupation such as a kitchen helper/dishwasher with approximately 1,600 such jobs
locally and 408,000 such jobs in the nation and laundry worker with approximately 1,300 such jobs
locally and 120,000 such jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff
had not been under a disability as defined by the Act from September 8, 2005 through the date of the
ALJ’s decision. (Tr. 29, Finding 10).
Thereafter, Plaintiff requested that the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 9). See 20 C.F.R. § 404.968. On March 31, 2011, the Appeals Council declined to review this
unfavorable decision. (Tr. 5). On May 27, 2011, Plaintiff filed the present appeal. ECF No. 1. Both
parties have filed appeal briefs. ECF Nos. 8, 13. 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) (2010); 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. 8. Specifically, Plaintiff claims the following: (1) the ALJ
improperly discounted her subjective complaints and (2) the ALJ erred in his RFC assessment. ECF No.
8 at 10-21. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 13.
After reviewing Plaintiff’s argument in the briefing and the opinion by the ALJ, this Court finds
the ALJ did not fully consider Plaintiff’s subjective complaints as required by Polaski v. Heckler, 739
F.2d 1320 (8th Cir. 1984). Thus, this 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 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
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,
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.
928 F.2d 255, 259 (8th Cir. 1991).
In the present action, the ALJ did not perform a proper Polaski analysis. While the ALJ
indicated the factors from Polaski had been considered (Tr. 25), a review of the ALJ’s opinion shows
that instead of evaluating these factors and noting inconsistencies between Plaintiff’s subjective
complaints and the evidence in the record, the ALJ merely reviewed the medical records and recognized
the proper legal standard for assessing credibility. Other than mentioning some of Plaintiff’s daily
activities and finding Plaintiff noncompliant with some medical treatment, the ALJ made no other
specific findings regarding the inconsistencies between Plaintiff’s claimed subjective complaints and
the record evidence. 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.
This lack of analysis 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 14th day of June 2012.
/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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