Walker v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on October 6, 2014. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
ANTHONY LARAY WALKER
vs.

PLAINTIFF
Civil No. 6:13-cv-06104

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Anthony Laray Walker (“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 a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental
Security Income (“SSI”) 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. 6.1 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 his disability applications on December 6, 2010. (Tr. 12, 105-

112). In his applications, Plaintiff claims to be disabled due to the following: high blood pressure,
diabetes, left knee limitations, left shoulder limitations, and ulcers. (Tr. 154). Plaintiff alleges an
onset date of August 8, 2009. (Tr. 12, 105, 109). These applications were denied initially and again

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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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upon reconsideration. (Tr. 43-46). Thereafter, on September 30, 2011, Plaintiff requested an
administrative hearing on his applications, and this hearing request was granted. (Tr. 64-71).
Plaintiff’s administrative hearing was held on July 24, 2012 in Hot Springs, Arkansas. (Tr. 24-42).
Plaintiff was present at this hearing and was represented by counsel, Sherri McDonough. Id.
Plaintiff and Vocational Expert (“VE”) Betsy Ford testified at this hearing. Id.
After this hearing, on September 19, 2012, the ALJ entered an unfavorable decision denying
Plaintiff’s applications for DIB and SSI. (Tr. 9-19). In this decision, the ALJ found Plaintiff met
the insured status requirements of the Act through March 31, 2012. (Tr. 14, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since August 8, 2009,
his alleged onset date. (Tr. 14, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: diabetes, hypertension, left shoulder pain, and status post arthroscopy for left knee
medial meniscus tear. (Tr. 14-15, Finding 3). However, 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. 15, Finding 4).
The ALJ determined Plaintiff had at least a high school education and was able to
communicate in English. (Tr. 17, Finding 8). The ALJ also determined Plaintiff was forty-two (42)
years old on his alleged disability onset date. (Tr. 17, Finding 7). This is defined as a “younger
person” under 20 C.F.R. § 416.963(c) (2008) (SSI) and 20 C.F.R. § 404.1563(c) (2008) (DIB).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 15-17, 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 following:
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After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except sit/stand option at will to perform job
related activities and unskilled entry level employment only.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17, Finding 6). The ALJ
determined Plaintiff’s PRW included work as an oyster shucker (light), a pipe layer helper (very
heavy), and a ditch digger (very heavy). Id. Based upon his RFC, the ALJ determined Plaintiff did
not retain the capacity to perform any of his PRW. Id.
The ALJ then determined whether Plaintiff retained the capacity to perform other work
existing in significant numbers in the national economy. (Tr. 18, Finding 10). The VE testified at
the administrative hearing regarding this issue. Id. Considering his age, education, work experience,
and RFC, the ALJ determined Plaintiff retained the capacity to perform the following representative
occupations: (1) ticket seller (light) with 39,000 such jobs in the nation and 340 such jobs in
Arkansas; and (2) cashier (light) with 1,700,000 such jobs in the nation and 14,000 such jobs in
Arkansas (with the numbers reduced by 50% as a result of the sit or stand option). Id. In accordance
with the VE’s testimony, the ALJ determined Plaintiff had not been under a disability, as defined by
the Act, from August 8, 2009 through the date of his decision or through September 19, 2012. (Tr.
18-19, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 6). On August 30, 2013, the Appeals Council denied this request for review. (Tr. 13). Thereafter, on September 24, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on October 4, 2013. ECF No. 6. Both Parties have filed

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appeal briefs. ECF Nos. 9-10. 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
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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).
3.

Discussion:
In his appeal brief, Plaintiff raises the following arguments for reversal: (1) the ALJ

improperly found his impairments did not meet the requirements of Listing 1.06; (2) the ALJ erred
by failing to consider him for a closed period of disability; (3) the ALJ erred in concluding he
retained the RFC to perform light work; (4) the ALJ erred in failing to properly consider his low I.Q.;
and (5) the ALJ erred in failing to submit a complete hypothetical to the V.E. ECF No. 9 at 1-18.
Because the ALJ improperly evaluated Plaintiff’s subjective complaints, the Court will only address
this issue.
In assessing the credibility of a claimant, the ALJ is required to examine and to apply the five
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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
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

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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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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 comply with the requirements of Polaski. (Tr. 15-17).
Indeed, in this case, the ALJ did what was specifically prohibited by Polaski and discounted
Plaintiff’s subjective complaints based upon the medical evidence alone. Id. Notably, in his
opinion, the ALJ stated he discounted Plaintiff’s subjective complaints based upon his finding that
Plaintiff’s “medical records . . . do not provide a basis to support the level of severity alleged by the
claimant.” (Tr. 17). The ALJ also stated Plaintiff’s testimony regarding his limitations “is
considered credible to the extent it is consistent with the medical records discussed above.” Id.
The ALJ’s decision to discount Plaintiff’s subjective complaints based upon his medical
records alone is entirely prohibited by Polaski. 739 F.2d at 1322 (finding a claimant’s subjective
complaints cannot be discounted “solely because the objective medical evidence does not fully
support them [the subjective complaints]”). Accordingly, this case must be reversed and remanded
for further consideration of Plaintiff’s subjective complaints in accordance with Polaski.
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.3 A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure

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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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52 and 58.
ENTERED this 6th day of October 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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