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
FAYETTVILLE DIVISION
AMBER BURNS-BOLTON PLAINTIFF
vs. Civil No. 5:20-cv-05127
KILOLO KIJAKAZI DEFENDANT
Acting Commissioner, Social Security Administration
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Amber Burns-Bolton (“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 a period of disability and Supplemental Security Income (“SSI”) under Title XVI
of the Act.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Timothy
L. Brooks 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 filed her disability application on February 20, 2017. (Tr. 253). Plaintiff alleged
disability due to Systemic lupus erythematosus, PTSD, Borderline personality disorder, general
anxiety disorder, C1Q nephropathy, gastroporisis, Interstitial cystitis, chronic kidney stones,
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bleeding of kidneys, and migraines with auras. (Tr. 535).1 Her application was denied initially
and again upon reconsideration. (Tr. 253).
Plaintiff requested an administrative hearing on her denied application, and this hearing
request was granted. (Tr. 434-451). A hearing was held on March 13, 2019, and September 5,
2019. (Tr. 273-324). At this hearing, Plaintiff was present and represented by counsel, Meghan
Gallo. Id. Plaintiff, her father John Burns and Vocational Expert, (“VE”) Barbara Hubbard
testified at this hearing. Id.
On September 26, 2019, after the administrative hearing, the ALJ entered a fully
unfavorable decision denying Plaintiff’s disability application. (Tr. 253-264). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) from her alleged
date of onset date of September 20, 2017. (Tr. 255, Finding 1). The ALJ also determined Plaintiff
had the following severe impairments: Sjorgen’s syndrome, lupus, agoraphobia, anxiety, and
depression. (Tr. 255, Finding 2). 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. 256,
Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her
Residual Functional Capacity (“RFC”). (Tr. 258, Finding 4). First, the ALJ evaluated Plaintiff’s
subjective complaints and found they were not entirely credible. Id. Second, the ALJ determined
Plaintiff had the RFC to perform sedentary work except she was restricted to work where
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. 18.
These references are to the page number of the transcript itself and not the ECF page number.
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interpersonal contact is incidental to work performed, complexity of tasks is learned and performed
by rote, few variables, little judgment; and the supervision required is simple, direct, and concrete.
Id.
The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 262, Finding 5).
The ALJ determined Plaintiff was unable to perform her PRW. Id. However, the ALJ found there
were jobs in the significant numbers in the national economy that Plaintiff could perform. (Tr.
262, Finding 9). With the help of the VE, the ALJ found Plaintiff could perform the representative
occupations of (1) document preparer with approximately 46,000 jobs in the nation, (2) addresser
with approximately 4,600 jobs in the nation, (3) toy stuffer with approximately 4,100 jobs in the
nation, (4) table worker with approximately 3,000 jobs in the nation, and (5) Paramutual ticket
checker with approximately 4,000 jobs in the nation. Id. Based upon this finding, the ALJ
determined Plaintiff had not been disabled at any time since September 20, 2017. (Tr. 263, Finding
10).
Plaintiff sought review with the Appeals Council. (Tr. 1-6). The Appeals Council denied
this request. Id. On July 27, 2020, Plaintiff filed a Complaint in this case. ECF No. 1. Both
Parties have filed appeal briefs. ECF Nos. 24-25. 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).
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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
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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. 24 at 3-17. Specifically, Plaintiff raises the following arguments
for reversal: (1) the ALJ failed to identity jobs that currently exist in significant numbers in the
national economy and (2) the ALJ erred in considering her subjective complaints of pain. Id.
Upon review, the Court finds the ALJ did not fully consider her subjective complaints when
evaluating her disability. According, the Court will only address this 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. § 416.929.1 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
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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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 ALJ based his credibility determination almost entirely upon the fact that Plaintiff’s subjective
complaints were not supported by her medical records. (Tr. 258-262). In his opinion, the ALJ
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summarized Plaintiff’s medical records and discounted Plaintiff’s subjective complaints because
they were not supported by the objective medical records:
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. 259).
Indeed, in this opinion, the only non-medical evidence the ALJ considered was Plaintiff’s
daily activities. (Tr. 259). The ALJ’s consideration involved only a limited discussion of
Plaintiff’s daily activities. Id.
Based upon this review, the Court finds the ALJ’s assessment of Plaintiff’s subjective
complaints was improper. 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 during the relevant time-period,
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
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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 February 2022.
Barry A. Bryant
/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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