holding a claimant’s subjective complaints cannot be discounted “solely because the objective medical evidence does not fully support them [the subjective complaints]”
How later courts described this case
- holding a claimant’s subjective complaints cannot be discounted “solely because the objective medical evidence does not fully support them [the subjective complaints]”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
BELINDA BEARDEN PLAINTIFF
vs. Civil No. 4:18-cv-04080
NANCY A. BERRYHILL DEFENDANT
Acting Commissioner, Social Security Administration
MEMORANDUM OPINION
Belinda Bearden (“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 a
period of disability and 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. 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 her DIB application on June 4, 2015. (Tr. 78). In this application,
Plaintiff alleges being disabled due to back, neck, arm, wrist, upper extremity, and shoulder
problems. (Tr. 311). Plaintiff alleges an onset date of February 8, 2013. (Tr. 78). This application
was denied initially and again upon reconsideration. (Tr. 217-250).
After Plaintiff’s application was denied, Plaintiff requested an administrative hearing on this
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.”
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application, and this hearing request was granted. (Tr. 140-188, 251-252). Plaintiff’s administrative
hearing was held on January 31, 2017 in Shreveport, Louisiana. (Tr. 140-188). At this hearing,
Plaintiff was present but was not represented by counsel. Id. Plaintiff and Vocational Expert (“VE”)
Ms. Matuk2 testified at this hearing. Id. The ALJ determined Plaintiff was forty-four (44) years old,
which is defined as a “younger individual” under 20 C.F.R. § 404.1563(c) (2008) (DIB). (Tr. 152).
Plaintiff also testified she had completed high school. Id.
Thereafter, the ALJ entered an unfavorable disability determination on June 19, 2017. (Tr.
75-92). The ALJ found Plaintiff last met the insured status requirements of the Act on December
31, 2013. (Tr. 80, Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) during the period from her alleged onset date of February 8, 2013 through her date
last insured of December 31, 2013. (Tr. 81, Finding 2). The ALJ determined, through the date last
insured, Plaintiff had the following severe impairments: degenerative disc disease of the cervical and
lumbar spines; residual effects of the left carpal tunnel release; left rotator cuff tendinitis; and
obesity. (Tr. 81, Finding 3). Despite being severe, the ALJ determined Plaintiff did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 81, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 82-86, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and largely
discounted them. Id. Second, the ALJ found Plaintiff retained the following RFC:
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) except the claimant can occasionally reach
2 The first name of Ms. Matuk was not included in the record.
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overhead with either upper extremity; can occasionally stoop, crouch, crawl and
kneel; cannot climb ladders, ropes or scaffolds; can occasionally climb stairs and
ramps; and, is unable to balance on narrow or moving surfaces, but is able to balance
occasionally on level surfaces.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was
unable to perform any of her PRW through her date last insured. (Tr. 86, Finding 6). The ALJ also
considered whether Plaintiff retained the capacity to perform other work existing in significant
numbers in the national economy. (Tr. 86-87, Finding 10). The VE testified at the administrative
hearing regarding this issue. Id.
Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform the
following three occupations: (1) price marker (light, unskilled) with approximately 291,922 such
jobs in the national economy; (2) cashier II (light, unskilled) with approximately 846,341 such jobs
in the national economy; and (3) hotel housekeeper (light, unskilled) with approximately 135,189
such jobs in the national economy. Id. Because Plaintiff retained the capacity to perform this other
work, the ALJ determined Plaintiff had not been under a disability, as defined by the Act, at any time
from February 8, 2013 (alleged onset date) through December 31, 2013 (Plaintiff’s date last insured).
(Tr. 87, Finding 11).
Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable disability
determination. On March 19, 2018, the Appeals Council declined to review the ALJ’s disability
determination. (Tr. 67-69). On May 11, 2018, Plaintiff filed the present appeal. ECF No. 1. The
Parties consented to the jurisdiction of this Court on May 14, 2018. ECF No. 7. This case is now
ready for decision.
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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
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).
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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 raises two claims: (1) the ALJ erred by failing to give proper
consideration to her neck pain; and (2) the ALJ erred in considering her medical records. ECF No.
13 at 1-21. Upon review, the Court finds the ALJ’s evaluation of Plaintiff’s subjective complaints
is not supported by substantial evidence in the record. As such, the Court will only address
Plaintiff’s first claim.
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. § 416.929.3 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to consider are
3 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
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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).
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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In the present action, the ALJ did not comply with the requirements of Polaski. Instead, the
ALJ based his credibility determination almost entirely upon the fact that Plaintiff’s subjective
complaints were not supported by her medical records. (Tr. 82-86). In his opinion, the ALJ
summarized Plaintiff’s medical records and discounted Plaintiff’s subjective complaints because
they were not supported by her objective medical records and stated the following:
After careful consideration of the evidence from the alleged onset date of February
8, 2013 through the claimant’s date last insured of December 31, 2013, 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.
. . .
In sum, the above residual functional capacity assessment is supported by the
objective medical evidence record and the observations of the state agency medical
consultants.
(Tr. 83, 86). Indeed, although the ALJ references “other evidence,” the ALJ does not provide any
specific “other evidence” to supports his assessment of her subjective complaints.
Based upon this review, the Court finds the ALJ discounted Plaintiff’s subjective complaints
based upon her medical records. 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.
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
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judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 7th day of March 2019.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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