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
BETTY MAXWELL PLAINTIFF
vs. Civil No. 4:18-cv-04150
ANDREW SAUL1, DEFENDANT
Commissioner, Social Security Administration
MEMORANDUM OPINION
Betty Maxwell (“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. 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 disability applications on December 16, 2015. (Tr. 189).2 In
these applications, Plaintiff alleges being disabled due to seizures, high blood pressure, bipolar
disorder, depression, and PTSD. (Tr. 315). Plaintiff alleges an onset date of May 14, 2014. (Tr.
1 Andrew M. Saul has been appointed to serve as Commissioner of Social Security, and is
substituted as Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
2 References to the Transcript will be (Tr. ___) and refer to the document filed at ECF No. 11,
These references are to the page number of the transcript itself not the ECF page number.
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189). Her disability applications were denied initially and again upon reconsideration. (Tr. 94-185).
Plaintiff requested an administrative hearing on her denied applications, and this hearing
request was granted. (Tr. 27-55). Plaintiff’s administrative hearing was held on February 8, 2018
in Shreveport, Louisiana. Id. At this hearing, Plaintiff was present and was represented by Greg
Giles. Id. Plaintiff and Vocational Expert (“VE”) Lenora Maatouck testified at this hearing. Id.
On May 2, 2018, after the administrative hearing, the ALJ entered an unfavorable decision
denying Plaintiff’s disability applications. (Tr. 189-200). In this decision, the ALJ found Plaintiff
met the insured status requirements of the Act through June 30, 2015. (Tr. 191, Finding 1). The
ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May 14,
2014, her alleged onset date. (Tr. 191, Finding 2). The ALJ determined Plaintiff had the following
severe impairments: hypertension, seizure disorder, hepatitis C, osteoarthritis, history of major
depressive disorder (MDD), PTSD, bipolar disorder, borderline personality disorder, and a history
of alcohol abuse. (Tr. 191, Finding 3). The ALJ also determined that 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. 192-
193, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her
Residual Functional Capacity (“RFC”). (Tr. 193-199, Finding 5). First, the ALJ evaluated Plaintiff’
subjective complaints and found they were not entirely credible. Id. Second, the ALJ determined
Plaintiff had the following RFC:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except the claimant can never climb ladders, ropes,
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or scaffolds. The claimant should avoid all exposure to unprotected heights and
dangerous moving machinery. The claimant can perform simple, routine, and
repetitive tasks, limited to simple work-related decisions, and limited to work where
interpersonal interaction is incidental to work performed.
Id.
The ALJ determined Plaintiff was fifty (50) years old, which is defined as an “individual
closely approaching advanced age” under 20 C.F.R. §§ 404.1563(d) (2008) and 20 C.F.R. §
416.963(d) (2008), on her alleged disability onset date. (Tr. 199, Finding 7). The ALJ determined
Plaintiff had a limited education but was able to communicate in English. (Tr. 199, Finding 8).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff was
unable to perform her PRW. (Tr. 199, Finding 6). The ALJ then considered whether Plaintiff
retained the capacity to perform other work existing in significant numbers in the national economy.
(Tr. 199-200, Finding 10). The VE testified at the administrative hearing regarding this issue. Id.
Based upon that testimony, the ALJ found Plaintiff retained the capacity to perform work as a food
checker (sedentary, unskilled) with 111,256 such jobs nationally; price marker (light, unskilled) with
304,746 such jobs nationally; hotel housekeeper (light, unskilled) with 134,381 such jobs nationally;
and cafeteria attendant (light, unskilled) with 61,427 such jobs nationally. (Tr. 200). Based upon
this finding, the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from
May 14, 2014 through the date of her decision or through May 2, 2018. (Tr. 200, Finding 11).
Plaintiff sought review with the Appeals Council. On October 12, 2018, the Appeals Council
adopted the findings of the ALJ. (Tr. 1-8). On October 31, 2018, Plaintiff filed a Complaint in this
case. ECF No. 1. Both Parties have filed appeal briefs and have consented to the jurisdiction of this
Court. ECF Nos. 15-16.
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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 claims the ALJ’s decision is not supported by substantial
evidence in the record. ECF No. 15 at 1-21. Upon review, the Court finds 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. § 416.929.3 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
your pain or other symptoms” and (2) “any measures you use or have used to relieve your pain or
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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).
In the present action, the ALJ did not comply with the requirements of Polaski. Instead, the
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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ALJ based her credibility determination almost entirely upon the fact that Plaintiff’s subjective
complaints were not supported by her medical records. (Tr. 193-199). 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, 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. 194).
The ALJ did provide some discussion of one Polaski factor: Plaintiff’s daily activities.
Notably, the ALJ stated Plaintiff’s daily activities “remain intact,” but the ALJ then proceeded to
only reference a few very basic daily activities: “she is able to handle her grooming and hygiene,
perform chores, prepare simple meals, live alone, pay bills, and shop with the presence of family
members.” (Tr. 198). Certainly such limited daily activities do not give the ALJ a reason to entirely
discount Plaintiff’s subjective complaints. Instead, the ALJ repeatedly stated Plaintiff’s allegations
were not supported by the “objective findings.” (Tr. 197). This finding–that Plaintiff’s subjective
complaints were not supported by her objective records–was the true basis of the ALJ’s decision.
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.
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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 26th day of August 2019.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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