# Dixon v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · January 2, 2018

URL: https://www.frixlaw.com/law-library/cases/10632075

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** January 2, 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/10632075

## How later opinions describe it (automated extraction)

- recognizing the ALJ cannot discount a claimant’s subjective complaints “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
FORT SMITH DIVISION
JEFF A. DIXON PLAINTIFF
vs. Civil No. 2:16-cv-02186
NANCY A. BERRYHILL DEFENDANT
Acting Commissioner, Social Security Administration
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Jeff A. Dixon (“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.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable P. K.
Holmes, III referred this case to this Court for the purpose of making a report and recommendation.
In accordance with that referral, and after reviewing the arguments in this case, this Court
recommends Plaintiff’s case be REVERSED AND REMANDED.
1. Background:
Plaintiff protectively filed his disability application on May 15, 2013. (Tr. 13, 135-138). In
his application, Plaintiff alleges being disabled due to right elbow synovitis, right wrist arthritis, left
arm pain, and neck pain. (Tr. 170). Plaintiff alleges an onset date of April 30, 2012. (Tr. 13). This

application was denied initially and again upon reconsideration. (Tr. 63-82).
Plaintiff requested an administrative hearing on his denied application, and this hearing
request was granted. (Tr. 25-47, 91-92). Plaintiff’s administrative hearing was held on October 29,
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2014 in Fort Smith, Arkansas. Id. At this hearing, Plaintiff was present and was represented by
Kristopher Ramsfield. Id. Plaintiff and Vocational Expert (“VE”) Larry Seifert testified at this
hearing. Id.
On May 6, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s application.
(Tr. 10-20). In this decision, the ALJ found Plaintiff met the insured status requirements of the Act

through December 31, 2017. (Tr. 15, Finding 1). The ALJ determined Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since April 30, 2012, his alleged onset date. (Tr. 15, Finding
2). The ALJ found Plaintiff had the following severe impairments: status post left biceps tendon
rupture and repair; degenerative disc disease of the cervical spine; osteoarthritis of the right elbow;
and osteoarthritis of the bilateral wrists. (Tr. 15, Finding 3). Despite being severe, the ALJ
determined those impairments did not 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. 15-16,
Finding 4).

In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 16-19, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to perform the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform the full range of sedentary
work as defined in 20 CFR 404.1567(a).
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 19-20, Finding 6).
Specifically, the ALJ determined Plaintiff’s PRW included work as a checker II. Id. Considering

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his RFC, the ALJ found Plaintiff retained the capacity to perform this PRW. Id. As such, because
Plaintiff retained the capacity to perform his PRW, the ALJ determined Plaintiff had not been under
a disability, as defined by the Act, from April 30, 2012 through the date of the ALJ’s decision or
through May 6, 2015. (Tr. 20, Finding 7).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable

decision. (Tr. 7). On June 15, 2016, the Appeals Council denied this request for review. (Tr. 1-3).
On August 4, 2016, Plaintiff filed the present appeal. ECF No. 1. Both Parties have filed appeal
briefs. ECF Nos. 10-11. 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

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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 his appeal brief, Plaintiff raises the following two arguments for reversal: (1) the ALJ erred

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in his RFC determination; and (2) the ALJ erred in relying on the testimony of the VE. ECF No. 10
at 1-15. Upon review, the Court finds the ALJ improperly evaluated Plaintiff’s subjective
complaints. Thus, the Court will only evaluate Plaintiff’s first argument for reversal.
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
[the subjective complaints].” Polaski, 739 F.2d at 1322.
When discounting a claimant’s complaint of pain, the ALJ must make a specific credibility

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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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 perform a Polaski evaluation. Instead of evaluating the
Polaski factors outlined above and providing valid reasons for discounting Plaintiff’s subjective
complaints, the ALJ instead focused on Plaintiff’s medical records and discounted his subjective
complaints because they were not supported by those records. Indeed, the ALJ emphasized “[t]he
medical evidence of record does not entirely support the credibility of claimant’s allegations
regarding his impairment. The objective medical findings reveal some limitations, but not to the
extent alleged by the claimant.” (Tr. 18).

The ALJ’s decision to discount Plaintiff’s subjective complaints because the medical
evidence did not support those allegations was entirely improper under Polaski. See Polaski, 739
F.2d at 1322 (recognizing the ALJ cannot discount a claimant’s subjective complaints “solely
because the objective medical evidence does not fully support them [the subjective complaints]”).
Thus, because the ALJ did not comply with the requirements of Polaski, this case must be reversed
and remanded.2

2 This Court recommends this case be reversed and remanded only for the purpose of fully
considering the Polaski factors and supplying valid reasons for discounting Plaintiff’s subjective
complaints. This Report and Recommendation should not be interpreted as requiring Plaintiff be
awarded disability benefits upon remand.
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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 recommends that it be REVERSED AND
REMANDED.
The Parties have fourteen (14) days from receipt of this Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The Parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
ENTERED this 2nd day of January 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/10632075. Public record. Not legal advice.