Patton v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 12, 2015. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
Civil No. 6:14-cv-06009
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Garey Patton (“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 application 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. 6.1
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 and SSI on June 24, 2011. (Tr. 13, 120134). Plaintiff alleged he was disabled due to Leukemia, fluid retention, muscle cramps, bone pain,
vomiting, diarrhea, dizziness, loss of appetite, sores in mouth, bleeding gums, memory loss, and
depression. (Tr. 153). Plaintiff alleged an onset date of May 8, 2011. (Tr. 13, 120, 128). These
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.”
applications were denied initially and again upon reconsideration. (Tr. 13). Thereafter, Plaintiff
requested an administrative hearing on his application and this hearing request was granted. (Tr. 8183).
Plaintiff’s administrative hearing was held on September 20, 2012. (Tr. 31-60). Plaintiff was
present and was represented by counsel, Shannon Carroll, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Diane Smith testified at this hearing. Id. At the time of this hearing,
Plaintiff was forty-forty (44) years old, which is defined as a “younger person” under 20 C.F.R. §
404.1563(c), and had a high school education. (Tr. 35-36).
On December 14, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB and SSI. (Tr. 13-26). In this decision, the ALJ determined Plaintiff met the
insured status requirements of the Act through December 31, 2015. (Tr. 15, Finding 1). The ALJ
also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 8,
2011. (Tr. 15, Finding 2).
The ALJ determined Plaintiff had the severe impairment of leukemia, obesity, hypertension,
anxiety, and depression. (Tr. 15, Finding 3). The ALJ then 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. 16, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 17-24). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to sedentary work, can occasionally kneel, balance, and crawl; should never climb, stoop,
or crouch; is able to occasionally grasp, handle, or manipulate; should not be exposed to respiratory
irritants, hazards, loud noise, high humidity, extreme heat, or vibrations; limited to work with an
SVP of 1 or 2. (Tr. 17, Finding 5).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 24, Finding 6). The
ALJ found Plaintiff unable to perform his PRW. Id. The ALJ however determined there was other
work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 24,
Finding 10). The VE testified at the administrative hearing regarding this issue. (Tr. 54-58). Based
upon that testimony, the ALJ determined Plaintiff retained the ability to perform other work such as
a call-out operator with 900 such jobs in the Arkansas and 165,000 such jobs in the nation and
surveillance system monitor with 600 such jobs in the Arkansas and 56,000 such jobs in the nation.
(Tr. 25). Given this, the ALJ determined Plaintiff had not been under a disability as defined in the
Act from May 8, 2011 through the date of his decision. (Tr. 25, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 8). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On January 28, 2014, Plaintiff filed the present appeal. ECF No. 1. The Parties consented
to the jurisdiction of this Court on January 28, 2014. ECF No. 6. Both Parties have filed appeal
briefs. ECF Nos. 12, 14. 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. 12, Pg. 9-18. Specifically, Plaintiff claims the ALJ
erred: (1) by not finding him disabled as a result of his leukemia and chemotherapy, (2) in finding
Plaintiff non-compliant, (3) in the credibility determination of Plaintiff, (4) in the RFC determination
of Plaintiff, (5) in failing to give proper treatment to the opinions of Plaintiff’s treating physician,
and (5) in failing to ask a proper hypothetical to the VE. Id. In response, the Defendant argues the
ALJ did not err in any of his findings. ECF No. 14. Because this Court finds the ALJ erred in the
credibility determination of Plaintiff and the treatment of the opinions of a treating physician, this
Court will only address these issues.
A. Credibility Determination
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
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.
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, 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 20 C.F.R. § 404.1529, 20 C.F.R. § 416.929 and Polaski had been
considered (Tr. 18), 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.3 In his opinion, the ALJ only made the following perfunctory statement regarding
Plaintiff’s subjective complaints:
After careful consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to cause some of
the alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for the
reason detailed below.
The ALJ made no 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.
B. ALJ’s Treatment of Treating Physician Opinions
Social Security Regulations and case law state that a treating physician's opinion will be
granted “controlling weight,” provided it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
record.” See SSR 96-2p; Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000)(citing 20 C.F.R.
§ 404.1527(d)(2)). An ALJ is required to give good reasons for the particular weight given to a
The ALJ also did not even specifically reference the Polaski factors which, although not required, is the
preferred practice. See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007).
treating physician’s evaluation. See Prosch, 201 F.3d at1013 (citing 20 C.F.R § 404.1527(d)(2), and
SSR 96-2p). An ALJ may disregard the opinion of a treating physician only where other medical
assessments “are supported by better or more thorough medical evidence,” or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions. Id. at 1013
(quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), and Cruze v. Chater, 85 F.3d 1320,
1324-25 (8th Cir. 1996)).
In April 2011, Plaintiff was diagnosed with Leukemia and was referred for treatment to Dr.
Prabhakara Reddy. (Tr. 232). The record shows Dr. Reddy treated Plaintiff for his Leukemia
through 2012. (Tr. 222-272). On December 16, 2011, Dr. Reddy completed a Medical Assessment
of Ability to Perform Work-Related Activities. (Tr. 325). In this report, Dr. Reddy indicated
Plaintiff could only stand or walk for one hour of an eight-hour day, and only sit for two hours of an
eight-hour day. Id.
In discussing Dr. Reddy’s findings in the Medical Assessment of Ability to Perform WorkRelated Activities, the ALJ stated that due to inconsistencies, Dr. Reddy’s statement was not entitled
to controlling weight, but where supported by objective evidence and consistent with the record as
a whole, some weight was given. (Tr. 24). The ALJ gave no further analysis of why he gave this
assessment less weight.
The ALJ has the responsibility to determine which findings are inconsistent and which
opinions should be given greater weight than other opinions. See Brown v. Astrue, 611 F.3d 941,
951-52. However, when an ALJ determines that a treating physician’s opinion should be discounted,
“he should give good reasons for doing so.” Id. (internal quotation and citation omitted). In this
matter, the ALJ’s complete lack of analysis and review certainly does not amount to “good reasons”
for discounting Dr. Reddy’s findings. See Brown, 611 F.3d at 951-52. The ALJ has completely
failed to discuss and analyze the opinions of Dr. Reddy other than to say they are inconsistent with
the medical record.
Substantial evidence does not support the ALJ’s decision of Plaintiff being not disabled
because the ALJ failed to properly analyze the opinions of Plaintiff’s treating physician, Dr. Reddy.
Because the ALJ did not properly review the opinions of Plaintiff’s treating physician, this case
should be reversed and remanded for proper review and analysis of these opinions.
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 12th day of February 2015.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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