# Daniels v. Social Security Administration Commissioner > District Court, W.D. Arkansas · May 16, 2018 URL: https://www.frixlaw.com/law-library/cases/10009199 ## Case - **Court:** District Court, W.D. Arkansas - **Decided:** May 16, 2018 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10009199 ## How later opinions describe it (automated extraction) - recognizing the ALJ cannot discount a claimant’s subjective complaints “solely because the objective medical evidence does not fully support them [the subjective complaints]” ## Opinion text IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION JOHN MARSHALL DANIELS PLAINTIFF vs. Civil No. 1:17-cv-01047 NANCY BERRYHILL DEFENDANT Acting Commissioner, Social Security Administration MEMORANDUM OPINION John Marshall Daniels (“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 Supplemental Security Income (“SSI”) 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. 7.1 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 application on August 5, 2014. (Tr. 362). In this application, Plaintiff alleges being disabled due to two surgeries on left shoulder-pop out of joint; right foot injury; heart attack 2007 stents; diabetes; 2011 balloon surgeries both legs; 2010 hernia repaired; high blood pressure; neuropathy in feet; acid reflux; and high cholesterol. (Tr. 578). Plaintiff alleged an onset date of June 1, 2007. Id. This application was denied initially and again 1 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.” 1 upon reconsideration. (Tr. 362). On February 25, 2016, Plaintiff had an administrative hearing on his application. (Tr. 444- 475). Plaintiff was present and was represented by Mary Thomason. Id. Plaintiff and Vocational Expert (“VE”) Charles Smith, testified at this hearing. Id. At this hearing, Plaintiff testified he was fifty-four (54) years old and had a GED. (Tr. 450-451). On April 14, 2016, the ALJ entered an unfavorable decision denying Plaintiff’s application. (Tr. 362-371). In this decision, the ALJ determined Plaintiff had not engaged in substantial gainful activity (“SGA”) since August 5, 2014, the alleged onset date. (Tr. 364, Finding 1). The ALJ also found Plaintiff had the following severe impairments: degenerative joint disease; chronic obstructive pulmonary disease; peripheral vascular disease; and gout. (Tr. 364, Finding 2). The ALJ then determined those 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. 366, Finding 3). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC. (Tr. 366-369). First, the ALJ indicated she evaluated Plaintiff’s subjective complaints and found his claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC for light work with restrictions. Id. The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 369, Finding 5). The ALJ found Plaintiff was unable to perform his PRW. Id. The ALJ, however, also determined there was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 370, Finding 9). The ALJ based this 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 2 perform the requirements of representative occupations such as price marker with 332,600 such jobs in the nation and cafeteria attendant with 268,381 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 since August 5, 2014. (Tr. 371, Finding 10). Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable decision. (Tr. 5). The Appeals Council declined to review this unfavorable decision. (Tr. 1-4). On July 21, 2017, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 13, 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) (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 3 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). 3. Discussion: In his appeal brief, Plaintiff raises the following arguments for reversal: (1) the ALJ erred in 4 evaluating the combined effects of his impairments, (2) the ALJ erred in assessing his credibility, and (3) the ALJ erred in the hypothetical asked of the VE. ECF No. 13. In response, the Defendant argues the ALJ did not err in any of her findings. ECF No. 14. Upon review, the Court finds the ALJ improperly evaluated Plaintiff’s subjective complaints. Thus, the Court will only evaluate 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 2 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. 5 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 an appropriate Polaski evaluation. Notably, instead of evaluating the Polaski factors as the ALJ understood she was required to do and instead of stating inconsistencies in the record as required by Polaski, the ALJ stated the following: After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. (Tr. 367). Other than mentioning some of Plaintiff’s daily activities, 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. 6 The ALJ’s decision to discount Plaintiff’s subjective complaints because the medical evidence did not support those allegations was improper under Polaski. See Polaski, 739 F.2d at 1322 (recognizing the ALJ cannot discount a claimant’s subjective complaints “solely because the objective medical evidence does not fully support them [the subjective complaints]”). Thus, because the ALJ did not comply with the requirements of Polaski, this case must be reversed and remanded. 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. A judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58. ENTERED this 16th day of May 2018. /s/ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE 7 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10009199. Public record. Not legal advice.