Crosby v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on August 18, 2017. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
PAMELA A. CROSBY
Civil No. 6:16-cv-06092
NANCY A. BERRYHILL
Acting Commissioner, Social Security Administration
Pamela A. Crosby (“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 applications 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. 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 her disability applications on February 10, 2014. (Tr. 11). In her
applications, Plaintiff alleges being disabled due to anxiety, depression, “early warning signs of
COPD,” arthritis, social anxiety, possible bipolar disorder, chronic foot pain, chronic back pain,
obesity, and paranoia. (Tr. 203). Plaintiff alleges an onset date of May 14, 2010. (Tr. 11). 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. 67-103).
Thereafter, Plaintiff requested an administrative hearing on September 24, 2014. (Tr. 131).
The ALJ granted that request and held an administrative hearing on July 14, 2015 in Hot Springs,
Arkansas. (Tr. 27-66). At this hearing, Plaintiff was present and was represented by counsel. Id.
Plaintiff and Vocational Expert (“VE”) Diane Smith testified at this hearing. Id. At this hearing,
Plaintiff testified she was thirty-five (35) years old, which is defined as a “younger person” under
20 C.F.R. § 404.1563(c) (DIB) and 20 C.F.R. § 416.965(c) (SSI). (Tr. 32). As for her education,
Plaintiff also testified she had obtained her GED. (Tr. 34).
After this hearing, on September 14, 2015, the ALJ entered an unfavorable decision denying
Plaintiff’s disability applications. (Tr. 8-22). In this decision, the ALJ determined Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”) since May 14, 2010, her alleged onset date. (Tr.
13, Finding 2). The ALJ determined Plaintiff had the following severe impairments: morbid obesity,
anxiety, depression, and cannabis abuse. (Tr. 13, Finding 3). Despite being severe, the ALJ
determined these 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. 14-15,
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (Tr. 15-20,
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 from the
claimant’s alleged onset date of May 14, 2010 through her date last insured of March
31, 2011 the claimant had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except she was limited to occasional
climbing, stooping, kneeling, crouching, and crawling and no jobs requiring balance
such as climbing ladders, working with scaffolding, or working at unrestricted
heights. She was limited to simple unskilled or semiskilled work, much as she has
done in the past, involving limited contact with the public and superficial contact
with supervisors and co-workers. However, from February 10, 2014, the
supplemental security income application date, and continuing the claimant has the
same residual functional capacity in terms of non-exertional limitations but has been
further reduced to sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a).
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 20-21, Finding 6).
The VE testified at administrative hearing regarding this issue. Id. Based upon that testimony, the
ALJ determined that Plaintiff retained the capacity to perform her PRW as a data entry clerk
(sedentary, semis-skilled). Id. Because she retained the capacity to perform this PRW, the ALJ
determined Plaintiff had not been under a disability, as defined by the Act, from May 14, 2010
through the date of his decision or through September 14, 2015. (Tr. 21, Finding 7).
Thereafter, Plaintiff requested a review by the Appeals Council. (Tr. 1-3). On August 16,
2016, the Appeals Council denied this request. Id. On September 22, 2016, Plaintiff filed the
present appeal with the Court. ECF No. 1. The Parties consented to the jurisdiction of this Court
on September 22, 2016. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 11-12. This
case is now ripe for determination.
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 raises one argument for reversal: the ALJ’s decision is not
supported by substantial evidence because of his failure to “consider the combination of Plaintiff’s
impairments as a whole.” ECF No. 11 at 1-13. In making this argument, Plaintiff alleges the ALJ
erred in evaluating her subjective complaints. Id. Because the Court finds the ALJ erred in
evaluating Plaintiff’s subjective complaints, the Court will only consider this 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
Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 r equire 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.
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 comply with the requirements of Polaski. Instead of
complying with Polaski and considering the Polaski factors, the ALJ only focused on Plaintiff’s
medical records. (Tr. 15-20). Indeed, although the ALJ recited he had properly evaluated Plaintiff’s
subjective allegations, the ALJ truly only discounted Plaintiff’s subjective complaints because they
were not supported by her medical records:
In sum, the above residual functional capacity assessment is supported by the
objective medical evidence contained in the record. Treatment notes in the record do
not sustain the claimant’s allegations of disabling symptoms and limitations. The
consultative examinations of the claimant support the residual functional capacity as
described above. The credibility of the claimant’s allegations is weakened by the
reasons as previously addressed above. The claimant experiences some symptoms
and limitations; however, the record does not fully support the severity of the
(Tr. 20) (emphasis added).
The Court finds the ALJ’s decision to discount Plaintiff’s subjective complaints based upon
her medical records and without a sufficient basis was 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 18th day of August 2017.
/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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