# Bennett v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · December 20, 2018

URL: https://www.frixlaw.com/law-library/cases/10009620

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** December 20, 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/10009620

## How later opinions describe it (automated extraction)

- holding a claimant’s subjective complaints cannot be discounted “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
HOT SPRINGS DIVISION
LETICIA BENNETT PLAINTIFF
vs. Civil No. 6:18-cv-06005
NANCY A. BERRYHILL DEFENDANT
Acting Commissioner, Social Security Administration

MEMORANDUM OPINION
Leticia Bennett (“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 application for
Disability Insurance Benefits (“DIB”) under Title II 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. 4. Pursuant to this authority, the Court issues
this memorandum opinion and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff filed her application for DIB on August 24, 2015. (Tr. 15). In this application,
Plaintiff alleges being disabled due to carpel tunnel, right shoulder injury, ganglion cyst, limited
education, difficulty with English language, high blood pressure, breathing issues, and obesity. (Tr.
179). Plaintiff alleges an onset date of July 22, 2015. (Tr. 15). Her application was denied initially
and again upon reconsideration. Id.
Plaintiff requested an administrative hearing on her denied application. (Tr. 91-92). This
hearing request was granted, and Plaintiff’s administrative hearing was held on January 10, 2017.

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(Tr. 30-56). At this hearing, Plaintiff was present and was represented by counsel, Michael Hamby.
Id. Plaintiff and Vocational Expert (“VE”) Elizabeth Clem testified at this hearing. Id.
On April 11, 2017, after the administrative hearing, the ALJ entered an unfavorable decision
denying Plaintiff’s disability application. (Tr. 15-24). In this decision, the ALJ determined Plaintiff
met the insured status requirements of the Act through December 31, 2020. (Tr. 17, Finding 1). The

ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since July
22, 2015, the alleged onset date. (Tr. 17, Finding2).
The ALJ then determined Plaintiff had the following severe impairments: degenerative joint
disease, obesity, asthma, and hypertension. (Tr. 17, Finding 3). The ALJ also determined Plaintiff
did not have an impairment or combination of impairments that 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. 17, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her

Residual Functional Capacity (“RFC”). (Tr. 18-21, Finding 5). First, the ALJ evaluated Plaintiff’
subjective complaints and found they were not entirely credible. Id. Second, the ALJ determined
Plaintiff had the RFC for sedentary work, except she could occasionally stoop and reach overhead
with the dominant upper extremity, and could have no exposure to respiratory irritants. Id.
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 21, Finding 6).
Considering her RFC, the ALJ determined Plaintiff did not retain the capacity to perform her PRW.
Id. The ALJ then determined whether Plaintiff retained the capacity to perform other work existing

in significant numbers in the national economy. (Tr. 23, Finding 10). The VE testified at the
administrative hearing regarding this issue. Id. Specifically, the VE testified Plaintiff retained the

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capacity to perform work as an inspector with 200,000 such jobs nationally and assembly with
150,000 such jobs nationally. Id. Based upon this finding, the ALJ determined Plaintiff had not
been under a disability (as defined by the Act) from July 22, 2015 through the date of the ALJ’s
decision. (Tr. 23, Finding 11).
Plaintiff sought review with the Appeals Council. On November 15, 2017, the Appeals

Council denied this request for review. (Tr. 1-6). On January 10, 2018, Plaintiff filed a Complaint
in this case. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 10, 11. This case is now
ready for determination.
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

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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 her appeal brief, Plaintiff claims the ALJ erred: (1) in evaluating Plaintiff’s severe

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impairments, (2) in the RFC determination, and (3) in evaluating Plaintiff’s subjective complaints.
ECF No. 10 at 2-4. Upon review, the Court finds Plaintiff’s third argument is merited, and the ALJ
has not a supplied a sufficient basis for discounting Plaintiff’s subjective complaints. Thus, 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
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. § 416.929.1 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

1 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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[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, the
ALJ based his credibility determination upon the fact Plaintiff’s subjective complaints were not
supported by her medical records. (Tr. 23-26). The ALJ summarized Plaintiff’s medical records and
discounted her subjective complaints because they were not supported by the objective medical
records:

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. 21). Indeed, although the ALJ mentioned Plaintiff’s subjective complaints, the ALJ did not
explain what specific findings supported the ALJ’s credibility determination. Such a finding was
improper. 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 an insufficient basis for
discounting Plaintiff’s subjective complaints, this case must be reversed and remanded.
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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 20th day of December 2018.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10009620. Public record. Not legal advice.