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
CARLA SANDEFUR PLAINTIFF
vs. Civil No. 4:21-cv-04002
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION DEFENDANT
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Carla Sandefur (“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
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 Susan
O. Hickey 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 originally filed her disability application on August 25, 2015, alleging disability
beginning on March 13, 2014. (Tr. 11, 179).1 In her application, Plaintiff alleges being disabled
due to breast cancer (stage 2), high blood pressure, arthritis, diverticulitis, sleep apnea,
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. 20.
These references are to the page number of the transcript itself not the ECF page number.
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hypercalcemia, depression, fibromyalgia, anxiety, and kidney disease. (Tr. 307). Her application
was denied initially and again upon reconsideration. (Tr. 79-196).
Ultimately, Plaintiff received an administrative hearing, and her disability claim was
denied. (Tr. 6-24). Plaintiff appealed her denial to the U.S. District Court for the Western District
of Arkansas. (Tr. 2594-2599). As a part of this appeal, the SSA agreed to a remand for further
record development. Id. The ALJ then held an additional hearing on March 16, 2020. (Tr. 2534-
2562). This hearing was held in Shreveport, Louisiana. Id. At this hearing, Plaintiff was present
and was represented by Linn Reed. Id. Plaintiff and Vocational Expert (“VE”) Lenora Maatouk
testified at this hearing. Id.
On May 13, 2020, after the administrative hearing, the ALJ entered an unfavorable decision
denying Plaintiff’s DIB application. (Tr. 2458-2476). In this decision, the ALJ found Plaintiff
last met the insured status requirements of the Act on September 30, 2016. (Tr. 2464, Finding 1).
The ALJ found Plaintiff did not engage in Substantial Gainful Activity (“SGA”) during the period
from her alleged onset date of March 13, 2014 through her date last insured of September 30, 2016.
(Tr. 2464, Finding 2).
The ALJ determined, through her date last insured, Plaintiff had the following severe
impairments: status post breast cancer with mastectomy; coronary artery disease (CAD) status post
aortic dissection; obstructive sleep apnea; obesity; arthritis; anxiety; and depression. (Tr. 2464,
Finding 3). The ALJ also determined Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the requirements of any of the Listings of Impairments
in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 2464-2466, Finding 4).
The ALJ determined Plaintiff was forty-nine (49) years old, which is defined as a “younger
person” under 20 C.F.R. § 404.1563(c), on her date last insured. (Tr. 2474, Finding 7). As for her
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education, the ALJ determined Plaintiff had at least a high school education. (Tr. 2474, Finding
8).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her
Residual Functional Capacity (“RFC”). (Tr. 2466-2474, Finding 5). First, the ALJ evaluated
Plaintiff’s 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, through
the date last insured, the claimant had the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) except for lifting and/or carrying
up to 10 pounds occasionally or frequently; sitting for 6 hours, standing for 2 hours,
and/or walking for 2 hours in an 8-hour workday; and, pushing/pulling as much as
she can lift/carry. The claimant can never climb ladders, ropes, or scaffolds.
Additionally, the claimant is able to perform simple, routine and repetitive tasks; is
able to perform simple work-related decisions; and is limited to the performance of
tasks where interpersonal contact is incidental to work performed.
Id.
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”) and determined Plaintiff
was unable to perform any of her PRW through her date last insured. (Tr. 2474, Finding 6). The
ALJ then considered whether Plaintiff retained the capacity to perform other work existing in
significant numbers in the national economy. (Tr. 2474-2475, Finding 10). The VE testified at
the administration hearing regarding this issue. Based upon that testimony, the ALJ determined a
hypothetical person with Plaintiff’s limitations retained the capacity to work as a document
preparer (sedentary, unskilled) with approximately 19,044 such jobs in the national economy;
addresser (sedentary, unskilled) with approximately 3,002 such jobs in the national economy; and
touchup screener (sedentary, unskilled) with approximately 1,011 such jobs in the national
economy. (Tr. 2475, Finding 10).
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In accordance with this finding, the ALJ determined Plaintiff was not under a disability, as
defined by the Act, at any time from March 13, 2014 (alleged onset date) through September 30,
2016 (date last insured). (Tr. 2475, Finding 11). Plaintiff sought review with the Appeals Council.
(Tr. 2435-2438). On December 16, 2020, the Appeals Council denied this request for review. Id.
On January 12, 2021, Plaintiff filed a Complaint in this case. ECF No. 1. Both Parties have filed
appeal briefs. ECF Nos. 28-29. Plaintiff has filed a reply brief in this matter also. ECF No. 30.
This matter is now ripe for consideration.
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
wouldhave 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
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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 her appeal brief, Plaintiff claims the ALJ’s decision is not supported by substantial
evidence in the record. ECF No. 28. In making this claim, Plaintiff raises five issues for reversal:
(1) the ALJ erred by failing to comply with the Appeal’s Council’s remand order; (2) the ALJ
failed to resolve an apparent conflict between the VE’s testimony and the Dictionary of
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Occupational Titles (DOT); (3) the ALJ failed to meet her burden at Step Five; (4) the ALJ erred
by failing to comply with SSR 03-2P; and (5) the ALJ erred by failing to comply with Polaski.
ECF No. 28 at 1-20. Upon review, the Court finds the ALJ’s credibility determination is not
supported by substantial evidence in the record; thus, the Court will only consider Plaintiff’s fifth
issue 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. § 416.929.2 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
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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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 ALJ based her credibility determination upon the fact Plaintiff’s subjective complaints were
not supported by her medical records. (Tr. 2466-2474, Finding 5). In her opinion, the ALJ
summarized Plaintiff’s medical records and discounted Plaintiff’s subjective complaints because
they were not supported by the objective medical records:
Based on the foregoing, the undersigned finds the claimant has the above residual
functional capacity assessment, which is supported by the objective medical
evidence of record, the observations of the medical expert, and, in part, the state
agency medical consultant as related to mental impairment.
(Tr. 2474).
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
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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 recommends 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 4th day of January 2022.
Barry A. Bryant
/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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