McGill v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

WARREN MCGILL PLAINTIFF

vs. Civil No. 6:22-cv-06081

COMMISSIONER, SOCIAL DEFENDANT

SECURITY ADMINISTRATION

MEMORANDUM OPINION

Warren McGill (“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”) 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 his disability application on December 4, 2019. (Tr. 23). In the

application, Plaintiff alleges being disabled due to osteoarthritis in his shoulders, knees, hips, and

elbows and lower back pain. (Tr. 183). Plaintiff alleges an onset date of September 1, 2017, which

was later amended to April 1, 2018. (Tr. 23). This application was denied initially and again upon

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. 11. These references are to the page number of the transcript itself not the ECF

page number.

reconsideration. Id. Thereafter, Plaintiff requested an administrative hearing, and that hearing

request was granted. (Tr. 98-145).

On February 24, 2021, the ALJ held an administrative hearing. (Tr. 36-67). At this

hearing, Plaintiff was present and represented by counsel, Paul Hickey. Id. Plaintiff and

Vocational Expert (“VE”) Stefanie Ford testified at this administrative hearing. Id.

On April 22, 2021, after the administrative hearing, the ALJ entered a fully unfavorable

decision denying Plaintiff’s application. (Tr. 23-30). The ALJ determined Plaintiff met the

insured status requirements of the Act through December 31, 2021. (Tr. 25, Finding 1). The ALJ

also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 1,

2018. (Tr. 25, Finding 2).

The ALJ determined Plaintiff had the following severe impairments: osteoarthritis of the

shoulders and knees, and spine disorder. (Tr. 26, 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. 26, Finding 4).

In his decision, the ALJ determined Plaintiff’s Residual Functional Capacity (“RFC”). (Tr.

26-29, Finding 5). Specifically, the ALJ found Plaintiff retained the RFC to perform light work

with additional postural and manipulative restrictions. Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 29, Finding 6). The

ALJ determined Plaintiff was capable of performing his PRW as mail clerk and mail room

supervisor. Id. Based upon this finding, the ALJ determined Plaintiff had not been disabled at

any time from April 1, 2018, through the date of the decision. (Tr. 30, Finding 7).

Plaintiff requested the Appeal’s Council’s review of this unfavorable decision. (Tr. 5-11).

The Appeals Council denied this request. Id. Thereafter, on July 19, 2022, Plaintiff appealed his

administrative case to this Court. ECF No. 1. The Parties consented to the jurisdiction of this

Court. ECF No. 7. Both Parties have filed their appeal briefs, and this matter is now ripe for

consideration. ECF Nos. 13, 18.

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 raised the following arguments for reversal: (1) the ALJ erred

in considering the opinions of medical providers, (2) the ALJ erred in assessing his RFC, and (3)

the ALJ erred in assessing his subjective allegations. ECF No. 13 at 5-12. Because the Court finds

the ALJ erred in assessing Plaintiff’s subjective allegations, the Court will only address Plaintiff’s

third argument for reversal.

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

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.

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 a full consideration of the Polaski factors.

(Tr 26-29). In his opinion, the only Polaski factor the ALJ considered was Plaintiff’s daily

activities. Id. Instead of fully considering the Polaski factors, the ALJ provided the following

routine statement:

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. 27).

Based upon this review, the Court finds the ALJ improperly discounted Plaintiff’s

subjective complaints. 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 the ALJ’s decision is not supported by

substantial evidence in the record. As such, this case is reversed and remanded for further findings

consistent with this opinion. A judgment incorporating these findings will be entered pursuant to

Federal Rules of Civil Procedure 52 and 58.

ENTERED this 25th day of May 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE