The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
DARRELL K. EDGIN PLAINTIFF
vs. Civil No. 6:18-cv-06112
COMMISSIONER, SOCIAL DEFENDANT
SECURITY ADMINISTRATON
MEMORANDUM OPINION
Darrell Edgin (“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
Disability Insurance Benefits (“DIB”) and a period of disability 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. 5.1 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 March 21, 2016. (Tr. 15). In this
application, Plaintiff alleges being disabled due to a back injury, arthritis in his back, a learning
disability (“can not read, write or spell appr 4th”), tingling in arms and legs, breathing problems,
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” and refer to the document filed at ECF No. 10. These
references are to the page number of the transcript itself not the ECF page number.
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chest pains, and bone and joint pain. (Tr. 203). Plaintiff alleges an onset date of September 29,
2015. (Tr. 15). This application was denied initially and again upon reconsideration. (Tr. 88-
122).
After Plaintiff’s application was denied, Plaintiff requested an administrative hearing on
this application, and this hearing request was granted. (Tr. 47-87). On September 21, 2017, the
SSA held an administrative hearing in Hot Springs, Arkansas. Id. At this hearing, Plaintiff was
present and was represented by Sherri McDonough. Id. Plaintiff and Vocational Expert (“VE”)
Stephanie Ford testified at this hearing. Id.
On April 19, 2018, after the administrative hearing, the ALJ entered a fully unfavorable
decision denying Plaintiff’s application. (Tr. 12-29). The ALJ found Plaintiff met the insured
status requirements of the Act through December 31, 2020. (Tr. 17, Finding 1). The ALJ found
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since September 29, 2015, his
alleged onset date. (Tr. 17, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: degenerative disc disease (“DDD”), chronic obstructive pulmonary disease
(“COPD”), and carpal tunnel syndrome. (Tr. 18, Finding 3). Despite being severe, the ALJ also
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. 18, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his
Residual Functional Capacity (“RFC”). (Tr. 18-24, Finding 5). Specifically, the ALJ found
Plaintiff retained 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) except he can only occasionally stoop, crouch, bend, kneel, crawl
and balance. He must avoid excessive exposure to dust, smoke, fumes, and other
pulmonary irritants. He can frequently finger/handle with upper extremities. He
can occasionally use the lower extremities for foot controls and pedals. He is
limited to simple, routine, and repetitive tasks with supervision that is simple,
direct, and concrete. Reading and writing duties is [are] limited to second grade
level.
Id.
The ALJ found Plaintiff was born on August 8, 1964 and was fifty-one (51) years old on
his alleged disability onset date. (Tr. 24, Finding 7). Such a person is defined as a “person closely
approaching advanced age” under 20 C.F.R. § 404.1563(d) (2008). The ALJ determined Plaintiff
had a marginal education but was able to communicate in English. (Tr. 24, Finding 8).
The ALJ evaluated his Past Relevant Work (“PRW”) and determined Plaintiff did not retain
the capacity to perform his PRW. (Tr. 24, Finding 6). The ALJ then determined whether Plaintiff
retained the capacity to perform other work existing in significant numbers in the national
economy. (Tr. 24-25, Finding 10). The VE testified at the administrative hearing on this issue.
Id. Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform his
PRW as a cafeteria attendant (light, unskilled) with 59,000 such jobs in the nation and as a deli
cutter/slicer (light, unskilled) with 19,000 such jobs in the nation. 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, from September 29, 2015 through the date of his decision or
through April 24, 2018. (Tr. 25, Finding 11).
Plaintiff requested the Appeals Council’s review of the ALJ unfavorable disability
determination. On October 23, 2018, the Appeals Council declined to review the ALJ’s disability
determination. (Tr. 1-6). On November 6, 2018, Plaintiff filed the present appeal. ECF No. 1.
The Parties consented to the jurisdiction of this Court on November 6, 2018. ECF No. 5. 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 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 one argument for reversal: the ALJ’s RFC determination
is not supported by substantial evidence. ECF No. 12 at 1-19. Because this is the only issue
Plaintiff raised, the Court will only address this issue.
As a part of his RFC argument, Plaintiff also claims the ALJ erred in assessing his
credibility. ECF No. 12 at 1-19. As an initial matter, the Court notes that 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 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
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.
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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 Court finds the ALJ did not provide sufficient reasons for
discounting Plaintiff’s subject complaints. Plaintiff has documented severe back pain. On
November 9, 2015, Plaintiff’s physical therapist found Plaintiff was only able to “tolerate sitting
for 15 min or less without aggravating pain. Standing tolerance: Patient can stand for 15 min or
less without aggravating pain.” (Tr. 301). The ALJ did not consider this report but instead stated
the following: “There is nothing in the record that indicates that any treating or examining
physician or provider has suggested that the claimant’s condition requires more than conservative
treatment.” (Tr. 23) (emphasis added). The ALJ’s determination on this issue was simply
inaccurate.
Plaintiff’s physical therapist noted this pain may be attributed to “years of truck driving.”
(Tr. 294). The ALJ recognized Plaintiff’s exemplary work history but gave Plaintiff no credit for
that work history: “The claimant’s work history had also been reviewed in this matter. According
to a Certified Earnings Report run on March 28, 2017, the claimant had earnings dating back to
1979 (Ex. 2D). In looking at his earnings, he has a good work history with progressively increases
in wags with only a few exceptions. While the claimant had a good work history, in making a
determination regarding the weight to be accorded to the claimant’s subjective complaints, the
significance of the claimant’s work history is outweighed by other substantial evidence in this
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claim.” (Tr. 23). The ALJ, however, provided no other “substantial evidence” that outweighed
that work history. Thus, the ALJ’s decision to entirely discount this work history for no apparent
reason was improper.
Furthermore, the ALJ provided no analysis of the Polaski factors. Instead, the ALJ
discounted Plaintiff’s daily activities because they were not supported by his medical records:
“Overall, the claimant’s reported limited daily activities are considered to be outweighed by the
other factors discussed in this decision.” (Tr. 23). The “other factors” are Plaintiff’s medical
records. The Court finds this is simply not a sufficient basis for discounting Plaintiff’s subjective
complaints.
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 30th day of September 2019.
Barry A. Bryant
/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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