Wynne v. Social Security Administration

Filing 13

OPINION AND ORDER denying Wynne's request for relief and affirming the Commissioner's decision. Signed by Chief Judge J. Leon Holmes on 6/27/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
VICTOR BERNARD WYNNE
v.

PLAINTIFF
No. 2:11CV00100 JLH-BD

MICHAEL J. ASTRUE, Commissioner,
Social Security Administration

DEFENDANT

OPINION AND ORDER
On June 11, 2008, Victor Bernard Wynne applied for disability income benefits and
supplemental security income. Tr. 59, 62. Wynne’s applications were denied initially and on
reconsideration. Tr. 27-28. Wynne asked for a hearing before an ALJ. Tr. 38. Wynne testified at
the hearing. On April 23, 2010, the ALJ issued an unfavorable decision, concluding that Wynne was
not disabled under the Social Security Act. Tr. 5. Wynne asked the Appeals Council to review the
ALJ’s decision. Tr. 4. The Appeals Council found no reason to change the ALJ’s decision and
denied Wynne’s request. Tr. 1. The ALJ’s decision became the final decision of the Commissioner
for the purpose of judicial review. See 42 U.S.C. § 405(g). Wynne commenced this action on June 2,
2011, seeking judicial review of the Commissioner’s decision.
Scope of judicial review. When reviewing a decision denying an application for disability
benefits, the Court must determine whether substantial evidence supports the Commissioner’s
decision and whether the Commissioner made a legal error. See 42 U.S.C. § 405(g) (requiring the
district court to determine whether the Commissioner’s findings are supported by substantial evidence
and whether the Commissioner conformed with applicable regulations); Slusser v. Astrue, 557 F.3d
923, 925 (8th Cir. 2009) (stating that the court’s “review of the Commissioner’s denial of benefits
is limited to whether the decision is ‘supported by substantial evidence in the record as a whole’”);
Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We will uphold the Commissioner’s decision

to deny an applicant disability benefits if the decision is not based on legal error and if there is
substantial evidence in the record as a whole to support the conclusion that the claimant was not
disabled.”). Substantial evidence is more than a mere scintilla of evidence; it means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Slusser, 557 F.3d
at 925. In determining whether substantial evidence supports the Commissioner’s decision, the Court
must consider evidence that detracts from the Commissioner’s decision as well as evidence that
supports the decision, but the Court may not reverse the Commissioner’s decision simply because
substantial evidence supports a contrary decision. See Sultan v. Barnhart, 368 F.3d 857, 863 (8th
Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
The disability-determination process. The Commissioner’s regulations set forth a five-step
process for evaluating disability claims. See 20 C.F.R. § 404.1520 (DIB); 20 C.F.R. § 416.920 (SSI).
In step one, the ALJ decides whether the claimant is currently engaging in substantial
gainful activity; if the claimant is working, he is not eligible for disability insurance
benefits. In step two, the ALJ determines whether the claimant is suffering from a
severe impairment. If the claimant is not suffering a severe impairment, he is not
eligible for disability insurance benefits. At the third step, the ALJ evaluates whether
the claimant’s impairment meets or equals one of the impairments listed in Appendix
1 of the regulations (the “listings”). If the claimant’s impairment meets or equals one
of the listed impairments, he is entitled to benefits; if not, the ALJ proceeds to step
four. At step four, the ALJ determines whether the claimant retains the “residual
functional capacity” (RFC) to perform his or her past relevant work. If the claimant
remains able to perform that past relevant work, he is not entitled to disability
insurance benefits. If he is not capable of performing past relevant work, the ALJ
proceeds to step five and considers whether there exist work opportunities in the
national economy that the claimant can perform given his or her medical impairments,
age, education, past work experience, and RFC. If the Commissioner demonstrates
that such work exists, the claimant is not entitled to disability insurance benefits.
McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (citations omitted). “The claimant bears the
burden of proving disability. Having shown, however, that he is unable to perform his past relevant

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work, the burden shifts to the [Commissioner] to show that work exists in the national economy that
the claimant is capable of performing.” Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992).
Wynne’s work history and medical history. Wynne was 33 years old when he allegedly
became disabled. He last obtained work through a staffing agency, pulling customer orders and
loading orders on trucks for a Coca Cola distributor. Tr. 25, 81, 113, 117. Wynne testified that he
stopped working on June 15, 2005, because of swelling in his back and left leg. Tr. 95. There is,
however, no medical evidence in the record dating back to that time.
The first medical evidence is a treatment note dated March 2, 2007. Tr. 145. The note
documented a complaint of a lifting injury and lower back pain, radiating to the left leg. The only
other medical treatment notes are from an Arkansas VA facility in 2007 and 2008. Tr. 149-224, 23548.
Wynne applied from disability benefits once before.

The Commissioner denied the

applications on October 19, 2007. Because Wynne did not appeal that decision, the earliest date
Wynne could receive benefits was October 19, 2007, even though he maintained he became disabled
on June 15, 2005.
The Commissioner’s decision. At step one of the disability-determination process, the ALJ
determined that Wynne had not engaged in substantial gainful activity since his alleged onset date of
June 15, 2005. Tr. 10. At step two, the ALJ determined Wynne’s ability to work was impaired by
a disorder of the spine. Tr. 10. At step three, the ALJ found that Wynne’s impairment was severe
but determined that the impairment did not meet or equal listing 1.04—the listing that applies to
disorders of the spine. Tr. 11. At step four, the ALJ determined that Wynne had the RFC to perform

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the full range of light work. Tr. 11-13. The ALJ then applied the Commissioner’s MedicalVocational Guidelines—the grid rules—and determined Wynne was not disabled. Tr. 14.
Wynne’s allegations of error. Wynne complained about the following aspects of the
Commissioner’s decision:
(1) the ALJ’s determination that Wynne did not meet listing 1.04,
(2) the ALJ’s evaluation of Wynne’s credibility,
(3) the ALJ’s development of the record,
(4) the ALJ’s determination about Wynne’s RFC, and
(5) the ALJ’s reliance on the grid rules.
Based on these complaints, Wynne maintained substantial evidence does not support the
Commissioner’s conclusion that he is not disabled. Wynne also maintained the Commissioner’s
decision does not comport with required legal standards.
Listing 1.04. Wynne asserted that he met listing 1.04(A). He maintained the ALJ should have
considered his lack of financial resources in determining whether he met the listing. Document #9,
pp. 7-10.
In the third step of the disability-determination process, the Commissioner compares the
claimant’s severe impairment with those on a list of specific impairments. 20 C.F.R. § 404.1520
(DIB); 20 C.F.R. § 416.920 (SSI). If the claimant’s impairment meets or equals a listed impairment,
the ALJ will deem the claimant disabled without considering his age, education, or work experience.
Meeting listing 1.04(a) requires the following:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or the
spinal cord. With:
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A. Evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue
biopsy, or by appropriate medically acceptable imaging, manifested by severe burning
or painful dysesthesia, resulting in the need for changes in position or posture more
than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on
appropriate medically acceptable imaging, manifested by chronic nonradicular pain
and weakness, and resulting in inability to ambulate effectively….
20 C.F.R. Pt. 404, Subpt. P, App. 1.
In this case, two pieces of evidence bear on Wynne’s argument: (1) a June 15, 2007 MRI, and
(2) a September 7, 2007 neurology consultation. The MRI showed the presence of degenerative disc
disease in Wynne’s lumbar spine, with a moderate sized central/left paracentral disc protrusion at
L5/S1, extending inferiorly causing impingement on left S1 nerve root. The MRI also showed a left
central disc protrusion osteophyte at L4/5, causing effacement of ventral thecal sac and moderate
stenosis; a mild diffuse disc bulge and small left paracentral/lateral recess disc protrusion at L3/4 ,
causing effacement of ventral thecal sac; and a mild diffuse disc bulge at L2/3. Tr. 158-59. A person
with a disc protrusion may have symptoms like the ones Wynne complained about if a disc protrudes
to the extent that it interferes with a nerve. 3 The Gale Encyclopedia of Med. (4th ed.) 2111-12
(explaining that a herniated disk can put pressure on a spinal nerve, causing pain down the legs,
weakness, numbness, or problems with bowels, bladder or sexual function). The MRI findings were
consistent with compromise of a nerve root, but Wynne’s neurological examination on September 7,

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2007, did not confirm nerve root compromise. Tr. 173. Instead, the neurological exam was normal.
Tr. 173.
The examining neurologist reported that there was “some encroachment on the transiting S1
nerve root” on the left of L5/S1. Tr. 173. The neurologist found an intact range of motion and an
intact central nervous system, and no clinical evidence of S1 radiculopathy. Tr. 173. The neurologist
reported that Wynne could ambulate without an assistive device. The physician described Wynne’s
symptoms as “chronic low back pain with little description of sciatica.” Tr. 173. Sciatica would have
suggested nerve root compromise. See Roger Cicala, M.D., 12-100 Attorneys’ Textbook of Med.
P 100.60 (3d ed.) (“Sciatica can be caused by a variety of problems including spinal nerve
compression by an intervertebral disc, vertebral or sacral arthritis, and muscle or nerve
inflammation.”); id. at 13-176.40 (“The most frequent cause is peripheral nerve root compression
resulting from protrusion of an intervertebral disc or a tumor.”). The examination findings did not
confirm nerve root compromise. Nerve root compromise is required for listing 1.04.
In addition, the record included no evidence of sensory or reflex loss, spinal arachnoiditis,
lumbar spinal stenosis, chronic nonradicular pain and weakness, or the inability to ambulate
effectively. No evidence showed that Wynne satisfied all of listing 1.04's requirements. Thus, the
ALJ did not err in determining Wynne did not meet or equal the listing. Substantial evidence supports
the ALJ’s determination that Wynne did not meet or equal listing 1.04(A).
The ALJ’s evaluation of Wynne’s credibility. Wynne alleged that pain precluded him from
doing any work. He reported that his back swelled if he did any activity. Tr. 108. The ALJ found
Wynne’s reports of pain “significantly exaggerated” and generally unreliable. Tr. 13. Wynne
challenges the ALJ’s evaluation of his credibility and argues that the ALJ failed to analyze the “entire

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line of evidence relating to the pain and the underlying impairment alleged to cause the pain.”
Document #9, p. 13.
An ALJ has a statutory duty “to assess the credibility of the claimant and other witnesses.”
Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). “In assessing a claimant’s credibility, an ALJ
must consider all of the evidence related to the subjective complaints, the claimant’s daily activities,
observations of third parties, and the reports of treating and examining physicians.” McCoy v. Astrue,
648 F.3d 605, 614 (8th Cir. 2011) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).
The ALJ’s opinion detailed Wynne’s complaints about pain, but determined the “level of low
back pains the claimant reports is not supported by the medical evidence in the file.” Tr. 12. The
ALJ’s reasons for finding Wynne incredible included: (1) Wynne had virtually no medical care for his
back, (2) Wynne failed to followup on a VA referral to a pain clinic, (3) Wynne used only Tylenol
and a muscle relaxer for back pain, (4) Wynne had never undergone physical therapy, (5) Wynne
engaged in no exercise, and (6) Wynne participated in no support group. Tr. 12-13. Instead, the ALJ
observed, Wynne sought no other relief for his alleged pain “but idleness.” Tr. 13. The ALJ also
reasoned that although Wynne consistently complained about swelling in his back, “no doctor ha[d]
actually seen [him] with swelling in his low back.” Tr. 13. The ALJ also observed that Wynne
“complained of pain and swelling in his left foot – but I see no doctor appointment specifically about
it, and no report of any imaging examination for it.” Tr. 11.
The ALJ discussed the medical evidence, which was scant, in detail. The ALJ observed that
Wynne had one outpatient appointment after the neurology consultation before announcing that he
was transferring to a Memphis VA facility, but there was no further documented medical care for his
back. Tr. 11. The medical evidence showed that Wynne complained to the VA about rectal bleeding

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and was scheduled for a colon examination, but the record included no report of a colonoscopy.
Tr. 11.
The failure to seek treatment when treatment was available contradicted Wynne’s allegation
of disabling pain. The lack of medical evidence substantiating Wynne’s claims and his failure to seek
available medical treatment constitute substantial evidence supporting the ALJ’s evaluation of
Wynne’s credibility. The ALJ did not err in evaluating Wynne’s credibility because the ALJ
considered Wynne’s complaints, his description of his daily activities, and the reports of treating
physicians.
The ALJ’s development of the record. Wynne contends the ALJ failed to fully and fairly
develop the record because the ALJ did not order orthopaedic and rheumatology examinations before
assessing his RFC. Document #9, pp. 18-19. Wynne complains that the ALJ relied on non-treating,
non-examining physicians who reviewed his medical records. Id. He also argues that the ALJ should
have obtained recent medical records from the Memphis VA, where he says that he was being treated
at the time of the hearing. Document #9, p. 3.
The ALJ had a duty to fairly and fully develop the record as to the matters at issue. Landess
v. Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1973). “The ALJ is required to order medical
examinations and tests only if the medical records presented to him do not give sufficient medical
evidence to determine whether the claimant is disabled.” Barrett v. Shalala, 38 F.3d 1019, 1023 (8th
Cir. 1994).
The issue here is whether Wynne was disabled because of his back condition. The record
provided sufficient evidence to determine whether Wynne’s back condition precluded him from

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working because the record included the results of the MRI and the neurological exam. That
evidence also provided sufficient evidence to determine Wynne’s RFC.
A claimant has the burden of proving his RFC. Eichelberger v. Barnhart, 390 F.3d 584, 592
(8th Cir. 2004). Wynne argues that the ALJ reached his own conclusion about his RFC, but the ALJ
actually relied on a consulting physician’s opinion to reach the RFC determination.

The

Commissioner twice asked for medical advice—once on July 1, 2008, Tr. 225, and again on
September 29, 2008, Tr. 250. The first time, the consultative physician reviewed Wynne’s medical
records and opined that Wynne had the RFC for light work. Tr. 234. That assessment was affirmed
when the second request for medical advice was made. Tr. 252. The ALJ incorporated the
consulting physician’s assessment into the RFC determination. Thus, the ALJ did not simply reach
his own conclusion; instead, the ALJ relied on a medical expert.
In the letter scheduling the hearing, the ALJ stated:
It is very important that the evidence in your file is complete and up-to-date. If there
is more evidence, such as recent records, reports, or evaluations that you want me to
see, please mail or bring that evidence to me as soon as possible. If you cannot
submit the evidence to me before the hearing, you may bring it to the hearing.
Submitting evidence to me before the hearing can often prevent delays in reviewing
your case.
Tr. 41. Thus, the ALJ invited Wynne to submit recent reports, records, or evaluations before or at
the hearing, but Wynne did not do so. Nor did he request that the record be held open so he could
submit them after the hearing. The ALJ did not err in the development of the record.
Wynne’s RFC. Wynne contends that the ALJ did not consider his non-exertional limitations
in determining his RFC. Document #9, pp. 15-16. He argues that this case should be remanded to
the Commissioner for consideration of the effects of pain and his pain medication.

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The ALJ must “determine a claimant’s RFC based on all relevant evidence, including medical
records, observations of treating physicians and others, and claimant’s own descriptions of his
limitations.” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Before determining a
claimant’s RFC, “the ALJ must determine the [claimant’s] credibility, as his subjective complaints
play a role in assessing his RFC.” Ellis v. Barnhart, 392 F.3d 988, 995-96 (8th Cir. 2005).
The ALJ in this case considered Wynne’s medical records, the observations of Wynne’s
treating physicians, the consulting physician’s opinion, and Wynne’s description of limitations. The
ALJ’s consideration of Wynne’s medical records and observations of treating physicians is reflected
in a thorough discussion of the scant medical evidence. Tr. 10-11. The ALJ’s consideration of the
consulting physician’s opinion is reflected in the ALJ’s RFC determination. The ALJ’s consideration
of Wynne’s description of his limitations is reflected in the ALJ’s finding that Wynne’s statements
were “significantly exaggerated.”
The consulting physician opined that Wynne could perform light work. “Light work involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to
10 pounds.” 20 C.F.R. § 404.1567(b) (DIB); 20 C.F.R. § 416.967(b) (SSI). The ALJ determined
that Wynne had the RFC to lift and carry 20 pounds occasionally and 10 pounds frequently. Tr. 12.
That determination was consistent with the requirements for light work.
Although Wynne complained about the ALJ’s failure to consider his non-exertional
limitations, the ALJ found no non-exertional limitations, reasoning that although Wynne “could
plausibly have some level of low back pain,” Tr. 12, the reported level was “not at all supported by
the medical evidence,” Tr. 12. To the extent that pain impacted Wynne’s RFC, the ALJ stated that
he had adequately allowed for pain in determining Wynne’s RFC. To the extent that Wynne

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complained about the effects of medication, Wynne’s muscle relaxer sometimes causes drowsiness,
Tr. 236, but Wynne did not explain how periodic drowsiness precludes him from doing light work.
The ALJ did not err in determining Wynne’s RFC. The consulting physician’s assessment of Wynne’s
ability to do light work constitutes substantial evidence supporting the ALJ’s determination.
The ALJ’s use of the grid rules. Instead of requiring the testimony of a vocational expert, the
ALJ relied on the grid rules in determining Wynne was not disabled. Wynne contended a vocational
expert was needed to determine whether his nonexertional impairments rendered him unable to
engage in the full range of light work. Document #9, pp. 16-17, 20.
When a claimant has nonexertional impairments, the ALJ must ask a vocational expert to
testify about the effect of the claimant’s nonexertional limitations on his ability to find jobs in the
national economy. See McCoy v. Astrue, 648 F.3d 605, 613-14 (8th Cir. 2011). Because the ALJ
in this case found no nonexertional limitations, the ALJ could rely on the grid rules.
To the extent the ALJ erred, an exception to the general rule permitted the ALJ to rely on the
grid rules if the ALJ determined the claimant’s nonexertional limitations did not significantly affect
the claimant’s RFC. Reed v. Sullivan, 988 F.2d 812, 816 (8th Cir. 1993) (citations omitted). A
determination that nonexertional limitations did not significantly limit Wynne’s RFC is implicit in the
ALJ’s statement that he adequately allowed for Wynne’s pain and its effects in the assigned RFC.
Tr. 13.
Because the ALJ was within his discretion, based on the record, to discredit Wynne’s
subjective complaints of pain and find that Wynne’s pain did not diminish his ability to perform the
full range of light work, the ALJ properly relied on the grid rules without vocational expert testimony.
See Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005). Regardless of whether Wynne had

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nonexertional limitations, or had nonexertional limitations that did not significantly limit his RFC, the
ALJ did not have to consult a vocational expert. In either case, the applicable grid rule indicated
Wynne was not disabled. Thus, the ALJ did not err. Application of the grid rule constitutes
substantial evidence supporting the ALJ’s decision.
Conclusion. Having determined substantial evidence supports the Commissioner’s denial of
Wynne’s applications for disability benefits, and the Commissioner made no legal error, the Court
DENIES Wynne’s request for relief and AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED this 27th day of June, 2012.

___________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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