Wingert

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

DEBBIE DIANE WINGERT PLAINTIFF

vs. Civil No. 5:24-cv-05241

FRANK BISIGNANO DEFENDANT

Commissioner, Social Security Administration

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Debbie Diane Wingert, (“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 Disability Insurance Benefits (“DIB”) under Title II 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 March 1, 2022. (Tr. 13). Plaintiff alleged

disability due to depression, high blood pressure, bilateral lower extremity edema, and low back

pain. (Tr. 187). Plaintiff’s application was denied initially and again upon reconsideration. (Tr.

13).

Plaintiff requested an administrative hearing on her denied application, and this hearing

request was granted. (Tr. 93-148). A hearing was held on August 24, 2023. (Tr. 26-47). At this

hearing, Plaintiff was present and represented by counsel, Laura McKinnon. Id. Plaintiff and

Vocational Expert, (“VE”) Larry Seifert testified at this hearing. Id.

On November 22, 2023, after the administrative hearing, the ALJ entered a fully

unfavorable decision denying Plaintiff’s disability application. (Tr. 13-21). The ALJ determined

Plaintiff met the insured status of the Act through December 31, 2024. (Tr. 15, Finding 1). The

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

February 1, 2020. (Tr. 15, Finding 2).

The ALJ then determined Plaintiff had the following severe impairments: degenerative disc

disease of the lumbar spine with a history of lumbar vertebral fracture. (Tr. 16, 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. 16, Finding 4).

In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her

Residual Functional Capacity (“RFC”). (Tr. 17-21, Finding 5). First, the ALJ indicated he

evaluated Plaintiff’s subjective complaints and found they were not entirely credible. Id. Second,

the ALJ determined Plaintiff had the RFC to perform light work except she could frequently climb

ladders, ropes and scaffolds, and could frequently stoop, kneel, crouch, and crawl. Id.

The ALJ then evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 21, Finding 6). The

ALJ determined Plaintiff was capable of performing her PRW as a cafeteria attendant. Id. Based

upon this finding, the ALJ determined Plaintiff had not been disabled at any time from February

1, 2020, through the date of the decision. (Tr. 21, Finding 7).

Plaintiff sought review with the Appeals Council. (Tr. 1-5). The Appeals Council denied

this request. Id. On November 25, 2024, Plaintiff filed a Complaint in this case. ECF No. 1. Both

Parties have filed appeal briefs. ECF Nos. 12, 14. 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 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 her appeal brief, Plaintiff claims the ALJ’s decision is not supported by substantial

evidence in the record. ECF No. 12, Pgs. 5-14. Specifically, Plaintiff raises the following

arguments for reversal: (1) the ALJ failed to fully and fairly develop the record, (2) the ALJ erred

in considering her subjective complaints of pain, and (3) the ALJ erred in the RFC determination.

Id. Upon review, the Court finds the ALJ did not fully consider her subjective complaints when

evaluating her disability. Accordingly, 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 (8th Cir. 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

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

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 (8th Cir. 2007). Thus, this Court will not

require the analysis of these additional factors in this case.

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 his medical records. (Tr. 17-21). In his opinion, the ALJ

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. 18).

Indeed, in this opinion, the only non-medical evidence the ALJ considered was Plaintiff’s daily

activities. (Tr. 19). This 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.

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.

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 9th day of October 2025.

/s/ Spencer G. Singleton

HON. SPENCER G. SINGLETON

UNITED STATES MAGISTRATE JUDGE