Brown v. Social Security Administration
OPINION AND ORDER affirming the final determination of the Commissioner and dismissing pltf's complaint with prejudice. Signed by Judge Susan Webber Wright on 2/11/13. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CALVIN LEE BROWN,
MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,
OPINION AND ORDER
Plaintiff Calvin Lee Brown seeks judicial review of the final decision of the
Commissioner of the Social Security Administration to deny his claim for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI). For the reasons
stated below, the Court affirms the Commissioner’s decision.
Plaintiff was born on February 15, 1979, and is a high school graduate (Tr. 29, 32)
He has past relevant work as an order filler (or warehouse worker), material handler (i.e.
loading or unloading trucks), and dishwasher/kitchen helper (Tr. 51, 147, 158-161, 173).
Plaintiff applied for DIB and SSI on March 8, 2010, alleging an inability to work
since February 27, 2010, due to back problems and high blood pressure (Tr. 14, 28, 118130, 154, 171). The Commissioner denied Plaintiff’s applications initially and on
reconsideration (Tr. 70-76, 79-83). Pursuant to Plaintiff’s request, a hearing was held
before an administrative law judge (ALJ) on December 7, 2010, at which testimony was
received from Plaintiff (who was represented by an attorney) and a vocational expert
(VE) (Tr. 25-56).
The ALJ rendered her decision on January 28, 2011, finding that Plaintiff was not
disabled within the meaning of the Act (Tr. 11-19). The ALJ followed the required fivestep sequence to determine: (1) whether the claimant was engaged in substantial gainful
activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the
impairment (or combination of impairments) met or equaled a listed impairment; (4) if
not, whether the impairment (or combination of impairments) prevented the claimant
from performing past relevant work1; and (5) if so, whether the impairment (or
combination of impairments) prevented the claimant from performing any other jobs
available in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)-(g),
416.920(a)-(g). See also Jones v. Astrue, 619 F.3d 963, 967 (8th Cir. 2010).2
In her decision, the ALJ found that Plaintiff had medically determinable severe
If it is determined at step four that the claimant has sufficient residual functional
capacity (RFC) to perform past relevant work, the inquiry ends and benefits are denied. 20
C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
At step five, the burden of production shifts to the Commissioner to prove that the
claimant retains the RFC to do other kinds of work and that other work exists in substantial
numbers in the national economy that the claimant can perform given his RFC. Goff v.
Barnhart, 421 F.3d 785, 790 (8th Cir. 2005). However, the ultimate burden of persuasion to
prove disability and to demonstrate RFC remains on the claimant, even when the burden of
production shifts to the Commissioner at step five. Id.
impairments consisting of a back disorder, hypertension, diabetes, obesity, and sleep
apnea (Tr. 13). However, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or equaled any of the listed impairments in the
Listing of Impairments of Appendix 1, Subpart P, Regulations No. 4 (Tr. 13). The ALJ
determined that Plaintiff had the RFC to perform light work3 reduced by an ability to
perform occasional postural actions, such as climbing (but never ladders, ropes, or
scaffolds), balancing, stooping, kneeling, crouching, and crawling; the requirement that
he be allowed to alternate positions between sitting and standing at will; the requirement
that he should avoid exposure to temperature extremes of heat and cold; and the
requirement that he avoid exposure to workplace hazards, such as unprotected heights and
dangerous machinery (Tr. 14). Based on Plaintiff’s RFC and the VE’s testimony, the ALJ
determined that Plaintiff could not perform any past relevant work but that considering
his age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that he could perform, such as a compact assembler
(40,000 in Arkansas and 240,000 nationally) (Tr. 17-18, 51-54).
Plaintiff appealed the ALJ’s decision to the Social Security Administration’s
Appeals Council. On December 13, 2011, the Appeals Council denied Plaintiff’s request
for review, thereby rendering the ALJ’s decision as the Commissioner’s final
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). “Even
though the weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.” Id.
administrative decision for purposes of judicial review (Tr. 1-3). Plaintiff thereafter filed
this action seeking judicial review of the final decision of the Commissioner to deny his
claim for DIB and SSI.
Plaintiff argues for reversal of the Commissioner’s decision on the following
grounds: (1) the ALJ’s decision was not supported by substantial evidence as objective
evidence shows Plaintiff meets Listing 1.02 as a result of his lumbar spine and Listing
1.00Q as a result of his obesity; (2) the ALJ erred in taking the state agency’s medical
examiner’s opinion over that of Plaintiff’s treating physician; and (3) the ALJ failed to
evaluate the severity of Plaintiff’s impairments, specifically his ability to stand, walk and
sit with his chronic back pain and obesity.
In reviewing the Commissioner's decision, this Court must determine whether
there is substantial evidence in the record as a whole to support the decision. Slusser v.
Astrue, 557 F.3d 923, 925 (8th Cir. 2009). “Substantial evidence is evidence that a
reasonable mind would find adequate to support the ALJ's conclusion.” Nicola v. Astrue,
480 F.3d 885, 886 (8th Cir. 2007). In reviewing the record as a whole, the Court must
consider both the evidence that detracts from the Commissioner's decision as well as the
evidence that supports the decision, but the decision cannot be reversed simply because
some evidence may support the opposite conclusion. Medhaug v. Astrue, 578 F.3d 805,
813 (8th Cir. 2009).
The Court first addresses Plaintiff’s argument that objective evidence shows he
meets Listing 1.02 as a result of his lumbar spine and Listing 1.00Q as a result of his
obesity. Plaintiff argues he suffers from chronic back pain and has objective findings that
include bulging discs and spondylothesis, degenerative disc disease, and right leg
radiculopathy, and that his exams show muscle spasms and limitations in his ability to sit
and stand related to his chronic back pain and obesity.
Plaintiff has the burden of proof to establish that his condition meets or equals a
listing. McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011). In order to meet a listing, the
impairment must meet or equal all specified medical criteria. Id. (citing Marciniak v.
Shalala, 49 F.3d 1350, 1353 (8th Cir. 1995)). Merely being diagnosed with a condition
named in a listing and meeting some of the criteria will not qualify a claimant for
presumptive disability under the listing. Id. at 611-612. “An impairment that manifests
only some of [the listing] criteria, no matter how severely, does not qualify.” Id. at 612
(quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)).
To meet the requirements of Listing 1.02 (major dysfunction of a joint(s) due to
any cause), the following criteria are required: a gross anatomical deformity (e.g.,
subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and
stiffness with signs of limitation of motion or other abnormal motion of the affected
joint(s), and findings on appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected joint(s), with involvement of
one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability
to ambulate effectively, as defined in 1.00B2b; or involvement of one major peripheral
joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in the
inability to perform fine and gross movements effectively as defined in Listing 1.00B2c.
See 20 C.F.R. pt. 404, Subpt. P, App. 1, § 1.02. In order to prove an inability to ambulate
effectively as defined in Listing 1.00B2b, Plaintiff must show that he is incapable of
maintaining a reasonable walking pace over a sufficient distance so that he can
independently initiate and carry out activities of daily living. See 20 C.F.R. pt. 404,
subpt. P, app. 1, §§ 1.00B2b, 1.02A.
The federal regulations define the effects of obesity as follows:
Obesity is a medically determinable impairment that is often associated
with disturbance of the musculoskeletal system, and disturbance of this
system can be a major cause of disability in individuals with obesity. The
combined effects of obesity with musculoskeletal impairments can be
greater than the effects of each of the impairments considered separately.
Therefore, when determining whether an individual with obesity has a
listing-level impairment or combination of impairments, and when
assessing a claim at other steps of the sequential evaluation process,
including when assessing an individual's residual functional capacity,
adjudicators must consider any additional and cumulative effects of obesity.
20 C.F.R. pt. 404, Subpt. P, App. 1, § 1.00Q.
Obesity can cause limitation of function, but the functions likely to be limited
depend on many factors, including where the excess weight is carried. Underwood v.
Astrue, Civil No. 11-3044, 2012 WL 3778316, *6 (W.D. Ark. Aug. 30, 2012) (citing SSR
02-1p). An individual may have obesity related limitations in any of the exertional
functions such as sitting, standing, walking, lifting, carrying, pushing, and pulling, and it
may also affect a person's ability to perform postural functions, such as climbing, balance,
stooping, and crouching. Id. The combined effects of obesity with other impairments
may be greater than might be expected without obesity, for example, someone with
obesity and arthritis affecting a weight-bearing joint may have more pain and limitation
than might be expected from the arthritis alone. Id. (internal quotation marks omitted).
Plaintiff has failed to show that he meets Listing 1.02 as a result of his lumbar
spine and Listing 1.00Q as a result of his obesity. Plaintiff testified that he exercises by
trying to “walk everyday, at least 15 minutes a day” (Tr. 30) and he indicated in disability
documents that he did not require the use of any assistive devices such as a cane or
walker and that he could walk, drive a car, and drive a riding lawn mower (Tr. 141, 145,
187, 188). Plaintiff does not point to any medical records indicating that he has an
inability to ambulate effectively or perform fine and gross movements effectively, see
Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (rejecting out of hand
claimant’s conclusory assertion that the ALJ failed to consider whether he met certain
listings because claimant provided no analysis of the relevant law or facts regarding those
listings), and Plaintiff’s medical records show that despite Plaintiff’s complaints of back
pain, his musculoskeletal, respiratory, neurological, and cardiovascular systems were
generally normal (Tr. 214-217, 222, 224-228, 257, 306). Additionally, an x-ray of
Plaintiff’s lumbar spine dated June 8, 2010, merely shows lumbar spasm/strain (Tr. 270).
While Plaintiff is certainly obese,4 the impact of Plaintiff's obesity was taken into
consideration by the ALJ's conclusion that Plaintiff could perform only a limited range of
light work. The ALJ found Plaintiff’s obesity to be severe (along with his back disorder),
performed a specific “individualized assessment” of Plaintiff’s obesity, and considered
the combined effects of all of Plaintiff’s conditions when she determined Plaintiff’s RFC
and disability status (Tr. 13-17). Further, the ALJ referenced SSR 02-1p and 1.00Q and
acknowledged that consideration must be given to any additional and cumulative effects
of Plaintiff’s obesity (Tr. 16). The burden is on Plaintiff to present evidence and
demonstrate the combined effects of his obesity and other impairments. Plaintiff has not
offered any evidence that his obesity made his other impairments more severe so that he
met a Listing. Plaintiff has thus failed to demonstrate that he meets the requirements of
Listing 1.02 and 1.00Q.
Plaintiff next argues the ALJ erred in taking the state agency’s medical examiner’s
opinion over that of Plaintiff’s treating physician, Dr. M.A. McDaniel. Dr. McDaniel
wrote a “To Whom It May Concern” letter on December 10, 2010, in which he stated that
he had been providing medical treatment to Plaintiff for several conditions (Tr. 420). Dr.
McDaniel opined that, based on Plaintiff’s medical conditions, age, education, and work
Plaintiff is approximately 6'5" and weighs approximately 400 pounds (Tr. 29, 43).
Plaintiff testified at his hearing that his weight was 450 pounds but that he lost 50 pounds (Tr.
29, 43). He testified that his goal in getting his weight controlled is “[j]ust to continue to walk
every day” (Tr. 43).
experience, Plaintiff was unable to perform any substantial gainful employment for a
period of time expecting to last 12 months and was precluded from doing any type of
work (Tr. 420).
“Generally, a treating physician's opinion is given more weight than other sources
in a disability proceeding.” Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012) (citing
20 C.F.R. § 404.1527(c)(2)). “Indeed, when the treating physician's opinion is supported
by proper medical testing, and is not inconsistent with other substantial evidence in the
record, the ALJ must give the opinion controlling weight.” Id. “‘However, [a]n ALJ may
discount or even disregard the opinion of a treating physician where other medical
assessments are supported by better or more thorough medical evidence, or where a
treating physician renders inconsistent opinions that undermine the credibility of such
opinions.’” Id. (quoting Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)).
“Ultimately, the ALJ must ‘give good reasons’ to explain the weight given the treating
physician's opinion.” Id. (quoting 20 C.F.R. § 404.1527(c)(2)).
Here, the ALJ gave good reasons for not giving controlling weight to Dr.
McDaniel's opinions, namely that Dr. McDaniel’s “conclusory statement” that Plaintiff is
unable to work “lacks the specificity of functional limitations that lead to the doctor’s
opinion, and therefore does very little to assist the undersigned in determining the
claimant’s limitations” (Tr. 16). Diagnosis of a condition does not equate to a disability,
see Collins ex rel. Williams v. Barnhart, 335 F.3d 726, 730-31 (8th Cir. 2003) (finding that
a diagnosis alone has minor significance and that the dispositive question remains
whether the claimaint’s functioning in various areas is markedly impaired, not what one
doctor or another labels his disorder), and a physician’s statement that a claimant is
disabled or unable to work is not, as noted by the ALJ (Tr. 16), the type of “medical
opinion” to which the Commissioner gives controlling weight. Ellis v. Barnhart, 392
F.3d 988, 994 (8th Cir. 2005). See also Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th
Cir. 2002) (noting that statements that a claimant could not be gainfully employed are not
medical opinions, but rather opinions on the application of a statute, a task assigned solely
to the discretion of the Commissioner). Rather, a treating physician’s opinion will be
granted controlling weight provided if it is well-supported by medically acceptable
clinical and laboratory diagnostic techniques, and is not inconsistent with the other
substantial evidence in the record. Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008).
The Court notes that Dr. McDaniel’s progress notes dated in December 2009 and March
2010, demonstrate that Plaintiff’s cardiovascular, neurological, and pulmonary systems
were normal (Tr. 214-217, 222-228) and Dr. McDaniel noted “overall findings normal”
regarding Plaintiff’s musculoskeletal system (Tr. 228).
Plaintiff alleges that the ALJ improperly gave more weight to the opinions of state
agency physicians than she did to Dr. McDaniel’s opinion but the determination by a
physician from a state agency is to be treated by the ALJ as “expert opinion evidence”
and given “appropriate weight.” See Jones ex. rel. Morris v. Barnhart, 315 F.3d 974, 978
(8th Cir. 2003) (quoting SSR 96-6p). The ALJ gave appropriate weight to opinions of the
state agency physicians and did not “disqualify Dr. McDaniel’s opinion over non-10-
examining non-treating physicians....” Pl.’s Br. at 11. Indeed, the ALJ determined that
Plaintiff was more limited than the state agency physicians indicated in that the ALJ also
found that Plaintiff would require the ability to alternate positions between sitting and
standing at will (Tr. 15).
Finally, Plaintiff argues the ALJ failed to evaluate the severity of Plaintiff’s
impairments, specifically his ability to stand, walk and sit with his obesity and back pain.
The Court concludes that the ALJ properly evaluated the severity of Plaintiff’s
impairments, including his complaints of pain,5 and that her RFC assessment is
adequately supported by the medical evidence. The ALJ made proper credibility
determinations and did not err in determining that Plaintiff had the RFC for a limited
range of light work.
It is not the task of this Court to review the evidence and make an independent
decision. Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992). Neither is it to reverse the
decision of the ALJ because there is evidence in the record which contradicts her
When analyzing a claimant's subjective complaints of pain, the ALJ must examine: (1)
the claimant's daily activities, (2) the duration, frequency and intensity of the pain, (3)
precipitating and aggravating factors, (4) the dosage, effectiveness and side effects of any
medication, and (5) functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984)). Although the ALJ did not cite the Eighth Circuit’s decision in Polaski, the ALJ did cite
the proper regulations and considered the relevant credibility factors. See Holley v. Massanari,
253 F.3d 1088, 1092 (8th Cir. 2001) (ALJ’s failure to cite Polaski is not reversible error where
the proper regulations were cited and the ALJ considered the relevant credibility factors).
findings. Id. The test is whether there is substantial evidence in the record as a whole
which supports the decision of the ALJ. Id. The Court finds for the foregoing reasons
that there is substantial evidence in the record as a whole which supports the decision of
the ALJ. Accordingly, the Court affirms the final determination of the Commissioner and
dismisses Plaintiff’s complaint with prejudice. Judgment will be entered accordingly.
IT IS SO ORDERED this 11th day of February 2013.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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