United States District Court, W.D. Arkansas, Fort Smith Division
JEFFREY A. DIXON, PLAINTIFF
NANCY A. BERRYHILL, Commissioner, Social Security Administration, DEFENDANT
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
Court has received a report and recommendations (Doc. 12)
from Chief United States Magistrate Judge Barry A. Bryant.
The Court reviewed the report and recommendations and the
timely objections (Doc. 13) filed by Defendant. Plaintiff did
not file a response to the objections. The Court has reviewed
the decision of the Magistrate de novo. 28 U.S.C. §
636(b)(1). The Court will not adopt the Magistrate's
findings and analysis, but finds that the Magistrate's
recommended disposition is correct.
Magistrate recommends that this case be remanded to the
Administrative Law Judge (“ALJ”) on the first
ground raised by Plaintiff because the ALJ did not apply the
five factors from Polaski v. Heckler, 739 F.2d 1320
(8th Cir. 1984) or from 20 CFR §§ 404.1529 and
416.929 in assessing Plaintiff's credibility regarding
Plaintiff's subjective complaints of pain. The Magistrate
found that instead of evaluating the Polaski factors
outlined above and providing valid reasons for discounting
Plaintiff's subjective complaints, the ALJ focused on
Plaintiff's medical records and discounted his subjective
complaints because they were not supported by those records.
The ALJ determined Plaintiff's Residual Functional
Capacity (RFC) on this basis.
emphasized that “[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.” (Doc. 9, p 46). However,
Defendant's objections point out that, along with the
medical evidence, the ALJ also considered Plaintiff's
self-reported abilities to drive-including to the hearing-and
to help care for his elderly mother in determining that
Plaintiff's reports of constant pain were not credible.
(Doc. 13, pp. 3-4).
a claimant's testimony regarding pain requires the ALJ to
make an express credibility determination and state the
reasons for discrediting the claimant's testimony.
Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991)
(citing Ricketts. v. Secretary of Health and Human
Services, 902 F.2d 661, 664 (8th Cir. 1990)). While the
Eighth Circuit prefers that the ALJ's analysis expressly
cites the Polaski factors, “an analysis
pursuant to 20 C.F.R. §§ 404.1529 and 416.929,
… largely mirror[s] the Polaski
factors.” Schultz v. Astrue, 479 F.3d 979, 983
(8th Cir. 2007). The Court agrees with Defendant's
objection to the report and recommendation and declines to
adopt the Magistrate's findings. The ALJ's
credibility determination, though it is less thorough than a
reviewing court would desire, and though it fails to
expressly discuss the Polaski factors, is sufficient
under the precedent of this Circuit to support the ALJ's
the Magistrate Judge agreed with Plaintiff's first
argument for reversal, he did not address Plaintiff's
second argument. Defendant's objection also does not
reach that argument. However, because the Court has reviewed
this case de novo, the Court will address Plaintiff's
second argument, and will remand on that basis.
argues that the ALJ erred in failing to analyze whether his
last position, as tool crib assistant, was accommodated work
that could not count as past relevant work or a composite
job, either of which precluded a denial of benefits at Step 4
of the ALJ's analysis. Plaintiff also argues that the ALJ
uncritically relied on the vocational expert's facially
incorrect DOTdesignation of the tool crib assistant job
as Checker II, DOT 209.687-010.
Court agrees with both of these arguments. The ALJ has a duty
to develop the facts fully and fairly. Cox v. Apfel,
160 F.3d 1203, 1209 (8th Cir. 1998). This includes inquiring
into whether Plaintiff's last position was accommodated
work or a composite job, and proceeding accordingly. Where
the ALJ chooses to rely on a vocational expert, the ALJ is
required “not only to ask the [vocational] expert
whether there was a conflict [between the vocational
expert's evidence and the information provided in the
DOT], but also to obtain an explanation for any such
conflict.” Renfrow v. Astrue, 496 F.3d 918,
921 (8th Cir. 2007). The ALJ's error in failing to do so
here is not harmless. The Checker II position is defined as a
sedentary, clerical, proofreading position, and
Plaintiff's argument is that the correct DOT position was
Tool-Crib Attendant, which, while clerical, is not sedentary.
Compare DOT 209.687-010 (Checker II) with
DOT 222.367-062 (Tool-Crib Attendant). Furthermore, it is
impossible for the ALJ to determine whether Plaintiff has the
RFC to perform the requirements of his past relevant work if
the ALJ incorrectly identifies that past relevant work. The
ALJ's decisions concerning Plaintiff's past relevant
work and whether Plaintiff has the RFC to do that work are
not supported by substantial evidence, and remand is
necessary for further development of the record. While this
matter is on remand, the ALJ is also invited, but not
required, to supplement the analysis of Plaintiff's RFC.
THEREFORE ORDERED that the report and recommendations (Doc.
12) is ADOPTED IN PART, insofar as the Court rejects the
Magistrate's findings and conclusions of law, but adopts
the Magistrate's recommendation to reverse and remand.
FURTHER ORDERED that the decision of the Commissioner of the
Social Security Administration to deny benefits to Plaintiff
is REVERSED and this matter is REMANDED for further
consideration pursuant to sentence four of 42 U.S.C. §
will be entered accordingly.