Gonzalez v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 15, 2015. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
RICHARD FRANK GONZALEZ
Civil No. 6:14-cv-06070
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Richard Frank Gonzalez (“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 Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), 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. 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 his disability applications on March 9, 2011. (Tr. 21). In his
applications, Plaintiff alleges being disabled due to knee injuries, a back injury, depression, a stroke,
and a heart condition. (Tr. 220). Plaintiff alleges an onset date of April 2, 2009. (Tr. 21). These
applications were denied initially and again upon reconsideration. (Tr. 77-80).
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.”
Thereafter, Plaintiff requested an administrative hearing on his denied applications, and this
hearing request was granted. (Tr. 45-76). On December 11, 2012, the ALJ held this administrative
hearing. Id. This hearing was held in Hot Springs, Arkansas. Id. Plaintiff was present and was
represented by Hans Pullen at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Elizabeth
Clem testified at this hearing. Id. At the time of this hearing, Plaintiff testified he was forty-three
(43) years old, which 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). (Tr. 51). As far as his education, Plaintiff also testified
he had obtained his GED. (Tr. 53).
After this hearing, on February 26, 2013, the ALJ entered an unfavorable decision denying
Plaintiff’s applications for DIB and SSI. (Tr. 18-39). In this decision, the ALJ found Plaintiff met
the insured status requirements of the Act through June 30, 2011. (Tr. 23, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 2, 2009,
his alleged onset date. (Tr. 23, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: central vascular accident (“CVA”) with residuals for right sided weakness, back and
spine disorder, “dysfunctional joint,” ankle and knee problems, loss of visual acuity, hearing loss
without cochlear implant, and a renal impairment. (Tr. 23-24, 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. 24-27,
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 27-37, 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:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform work at the light exertional
level as defined in 20 CFR 404.1567(b) and 416.967(b); however, the work is
reduced by these additional limitations: He can occasionally climb stairs; never climb
ladders, he can occasionally balance, stoop, kneel, crouch, and crawl. He can use the
right dominant arm, but only occasionally for overhead reaching, pushing, and
pulling. He can use the left leg, but only occasionally for pushing and pulling. He
can perform no greater than unskilled work, defined as being able to understand,
retain, and carry out simple instructions; make simple work-related decision; perform
work where the complexity of a task is learned and performed by rote, with few
variables, and with little judgment; work in an environment with few, if any work
place changes; perform work where interpersonal contact is incidental to the work
performed; and, work where supervision is simple, direct, and concrete. He can see,
but must avoid jobs requiring excellent vision due to problems with peripheral vision
on the left side. He can hear, but must avoid jobs that require excellent hearing; he
can hear moderate or office level noise with a hearing aide on the left and does not
need a hearing aide on the right side. He must avoid extreme cold, extreme heat, and
hazards such as moving machinery or unprotected heights.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff had no PRW
he could perform. (Tr. 37, Finding 6). The ALJ then determined whether Plaintiff retained the
capacity to perform other work existing in significant numbers in the national economy. (Tr. 38,
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 occupation: janitorial work (unskilled, light) with 4,500 such
jobs in Arkansas and 500,000 such jobs in the national economy. (Tr. 38). Because Plaintiff
retained the capacity to perform this other work, the ALJ determined Plaintiff had not been under
a disability, as defined in the Act, from April 2, 2009 through the date of the ALJ’s decision or
through February 26, 2013. (Tr. 38, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 16). On February 26, 2014, the Appeals Council denied this request for review. (Tr.
1-3). Plaintiff then filed the present appeal on May 22, 2014. ECF No. 1. The Parties consented
to the jurisdiction of this Court on May 22, 2014. ECF No. 5. 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 his appeal brief, Plaintiff raises the following three arguments for reversal: (1) the ALJ
erred by failing to consider his impairments as a whole; (2) the ALJ erred in considering Listing
1.02; and (3) the ALJ erred by failing to consider his inability to afford treatment. ECF No. 10.
Because the ALJ improperly evaluated his subjective complaints, the Court will only address
Plaintiff’s first argument for reversal.
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
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
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.
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 comply with the requirements of Polaski. (Tr. 27-37).
Instead of complying with its requirements, the ALJ did what is specifically prohibited by Polaski
and discounted Plaintiff’s subjective complaints because they were not supported by the objective
Despite his subjective complaints, including pain, the objective medical evidence,
especially when viewed longitudinally, simply does not support the claimant’s
allegations as to the severity of limitations alleged. The claimant has impairments
that cause significant limitations in his ability to perform basic work activities.
However, his combination produces symptoms that are not disabling and are
supportive of the aforementioned residual functional capacity analysis.
(Tr. 37) (emphasis added). The ALJ’s decision to discount Plaintiff’s subjective complaints for the
sole stated reason that they were not supported by his objective medical records is entirely improper
under Polaski. See Polaski, 739 F.2d at 1322 (holding a claimant’s subjective complaints cannot be
discounted “solely because the objective medical evidence does not fully support them [the
subjective complaints]”). Accordingly, because the ALJ provided no valid reasons for discounting
Plaintiff’s subjective complaints, this case must be reversed and remanded.
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
52 and 58.
ENTERED this 15th day of April 2015.
/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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