United States District Court, W.D. Arkansas, Fort Smith Division
STACIE L. ANDERSON PLAINTIFF
CAROLYN W. COLVIN, Commissioner, Social Security Administration DEFENDANT
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
Court has received a report and recommendations (Doc. 17)
from Chief United States Magistrate Judge Barry A. Bryant.
The Court reviewed the report and recommendations and the
timely objections (Doc. 18) filed by the Defendant. Plaintiff
did not file a response to the objections. With respect to
issues specifically raised by the objections, the Court has
reviewed the decision of the Magistrate de novo. 28 U.S.C.
§ 636(b)(1). Upon due consideration, the Court finds
that the Defendant's objections offer neither law nor
fact requiring departure from the Magistrate's report and
recommendations and that the Magistrate's report does not
otherwise contain any clear error.
Magistrate recommends this case be remanded to the
Administrative Law Judge (“ALJ”) on the fourth
ground raised by Plaintiff-that the ALJ erred in evaluating
her subjective complaints. (Doc. 17, pp. 5-7). Based on a
finding that “the ALJ only considered Plaintiff's
medical records and discounted her subjective complaints
because they were not supported by her medical records”
(Doc. 17, p. 7), the Magistrate recommends remand “only
for the purpose of fully considering the Polaski
factors and supplying valid reasons for discounting
Plaintiff's subjective complaints.” (Doc. 17, p. 7
fn. 2). Defendant objects that the Magistrate's finding
is not supported by the record, and argues that even if it
were, remand is inappropriate here because substantial
evidence supports the ALJ's credibility determination as
to the extent of Plaintiff's subjective complaints.
ALJ's credibility determination occurred during step
three of the disability analysis set out at 20 CFR §
404.1520(a)(4), during which the ALJ determined Plaintiff
possesses the residual functional capacity
(“RFC”) to perform light work. (Doc. 19, pp.
19-25). “When rejecting a claimant's
complaints of pain, the ALJ must make an express credibility
determination, must detail reasons for discrediting the
testimony, must set forth the inconsistencies, and must
discuss the Polaski factors.” Baker v.
Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998) (referencing
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984)). Polaski directs that:
The adjudicator must give full consideration to all of the
evidence presented relating to subjective complaints,
including the claimant's prior work record, and
observations by third parties and treating and examining
physicians relating to such matters as:
1. the claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
Polaski, 739 F.2d at 1322. Polaski
admonishes that “[t]he adjudicator may not disregard a
claimant's subjective complaints solely because the
objective medical evidence does not fully support
the ALJ made an express credibility determination, finding
that “the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms
[chronic pain and mental impairments, including memory loss]
are not entirely credible.” (Doc. 19, p 20). However,
the only reasons detailed in support of the ALJ's
credibility determination consisted of observations by
treating and examining physicians-that is, of objective
medical evidence. It is possible that the ALJ relied on more
than just a lack of support for Plaintiff's claims in the
objective medical evidence in disregarding those claims, but
if so the ALJ failed to identify those reasons. Contrary to
Defendant's argument, the ALJ did not find that
“Plaintiff pursued very little treatment from 2007
until 2011.” (Doc. 18, p. 2). Rather, the ALJ noted
that Plaintiff provided little or no evidence of attempts to
obtain follow up treatment as an introduction to analyzing
medical opinions of those physicians Plaintiff did see. (Doc.
19, pp. 20, 22). Additionally, the ALJ mentioned
Plaintiff's other life activities in passing while
conducting step three of the analysis and finding that
Plaintiff did not have a listed disability. But these
perfunctory statements are an insufficient basis for the
Court to agree that in making a credibility determination
while trying to determine Plaintiff's RFC, the ALJ relied
on those life activities or found that Plaintiff in fact did
not seek follow up treatment. See e.g., Miller
v. Sullivan, 953 F.2d 417, 421 (8th Cir. 1992)
(“not only must [the claimant's] claims lack
support in the medical record-they must also be inconsistent
with the record as a whole” (quotation omitted)).
Baker requires more of an ALJ who makes a
credibility determination, and Polaski provides a
guide for supporting that determination. On remand the ALJ
should identify any reasons other than the reports of the
various examinations for discounting Plaintiff's
subjective complaints, and may reconsider the issue of
Plaintiff's credibility if warranted by the record.
THEREFORE ORDERED that the report and recommendations (Doc.
17) should be, and hereby are, approved and ADOPTED as ...