Richardson v. Social Security Administration

Filing 16

ORDER affirming the Commissioner's decision. Signed by Judge Brian S. Miller on 9/28/2011. (jct)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
JULIENE RICHARDSON
v.

PLAINTIFF

CASE NO. 3:10CV00147 BSM

MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY ADMINISTRATION

DEFENDANT

ORDER
Plaintiff Juliene Richardson appeals the final decision of the Commissioner of the
Social Security Administration denying her claim for supplemental security income and
disability insurance benefits. Both parties have submitted appeal briefs. [Doc. Nos. 11, 13].
The Commissioner’s decision is AFFIRMED because it is supported by substantial
evidence.
I. INTRODUCTION
Richardson applied for a period of disability and disability insurance benefits on
December 28, 2006. Richardson also applied for supplemental security income on that same
date. Both applications were based on an alleged disability beginning June 1, 2006. Her
application was initially denied on April 10, 2007, and denied upon reconsideration on July
6, 2007. In his May 29, 2009 decision, the Administrative Law Judge1 (ALJ) concluded that
Richardson had not been under a disability within the meaning of the Social Security Act
because she has the residual functional capacity to perform the full range of sedentary work.

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W. Thomas Bundy, Administrative Law Judge.

The appeals council denied Richardson’s request for a review of the ALJ’s decision on May
7, 2010, and she timely commenced this appeal on July 8, 2010.
II. LEGAL STANDARD
In its judicial review of a decision denying benefits, a district court must determine
whether there is substantial evidence in the administrative record to support the
Commissioner’s decision. 42 U.S.C. § 405(g); Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir.
2009). Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996). In
assessing the substantiality of the evidence, evidence that both detracts from the
Commissioner’s decision as well as evidence that supports it must be considered. Woolf v.
Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). The Commissioner’s decision, however, will not
be reversed merely because substantial evidence would have supported an opposite decision.
Id.
III. DISCUSSION
Richardson, a forty-three-year-old-female at the time of her hearing, is seeking
benefits related to post-polio syndrome. Richardson has a high school diploma and has past
work experience as a security guard. She has not worked since June 1, 2006.
The ALJ considered Richardson’s impairments by way of the required five-step
sequential evaluation process. 20 C.F.R. § 416.920. At step one, he found that Richardson
had not engaged in substantial gainful activity since the application date. 20 C.F.R. §§

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404.1571 et seq., and 416.971 et seq. At step two, the ALJ found that Richardson’s postpolio syndrome causes more than minimal limitations to her ability to perform basic work
activities. 20 C.F.R. §§ 404.1520(c) and 4169.920(c). At step three, the ALJ found that
none of her impairments equaled a listed impairment under 20 C.F.R. §§ 404.1525,
404.1526, 416.925, and 416.926.
Before reaching step four, the ALJ was required to determine Richardson’s residual
functional capacity. At this point, he found that Richardson had the residual functional
capacity to perform the full range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a)
and 416.967(a). The ALJ also examined the evidence and testimony offered at the hearing
and found that Richardson’s impairment could reasonably be expected to cause the
symptoms she alleges, but that her statements concerning the intensity, persistence, and
limiting effects of those symptoms are not credible to the extent they were inconsistent with
the residual functional capacity assessment. There was not objective medical evidence
sufficient to compel a conclusion that Richardson has a critically significant limitation of
function as a result of her post-polio syndrome, despite Richardson’s testimony to the
contrary.
The ALJ then moved to step four and determined that Richardson is unable to
perform any past relevant work experience. 20 C.F.R. §§ 404.1565 and 416.965. The ALJ
then proceeded to step five under the assumption that Richardson could not perform any past
relevant work and found, based upon Richardson’s age, education, work experience, and

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residual functional capacity, that there are jobs that exist in significant numbers in the
national economy that the claimant can perform. 20 C.F.R. §§ 404.1569, 4040.1569a,
416.969, and 416.969a. For this reason, the ALJ found that Richardson was not disabled
since June 1, 2006. 20 C.F.R. § 404.1520(g) and 416.920(g).
On appeal, Richardson asserts that the ALJ’s findings are not supported by the record
as the ALJ erred in determining that Richardson does not have an impairment that meets or
equals a listed impairment, that the ALJ erred in giving great weight to the opinion of a Dr.
Payne, that the ALJ erred in failing to use a vocational expert, that the ALJ erred in his
determination of Richardson’s residual functional capacity, and that the ALJ erred in failing
to obtain a residual functional capacity opinion. Those five issues are consolidated and
reframed into the three issues below. The Commissioner maintains that substantial evidence
supports the ALJ’s findings.
A.

Substantial Evidence in the Record
The Commissioner’s decision is supported by substantial evidence.
1. Whether Richardson’s Impairment Meets a Listing
Richardson argues that the ALJ improperly found that her impairments did not meet

or equal Listing 11.11 for anterior poliomyelitis. Richardson also argues that the ALJ
ascribed too much weight to the opinion of Dr. Bill Payne. The Commissioner argues that
though Richardson has a severe impairment in post-polio syndrome, this condition does not
meet or equal the requirements of Listing 11.11 at step three.

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Additionally, the

Commissioner argues that the ALJ can rely on a physician designated by the Commissioner
who concludes that a claimant’s impairment was not equivalent to a listing.
The Step 3 determination is based on medical evidence. Ingram v. Chater, 107 F.3d
598, 602 (8th Cir. 1997); 20 C.F.R. §§ 404.1526(b), 416.926(b) (2002). The question of
whether a plaintiff meets a listed impairment is strictly a medical determination. Cockerham
v. Sullivan, 895 F.2d 492, 496 (8th Cir. 1990); 20 C.F.R. §§ 404.1526(b), 416.926(b).
Listing 11.11 requires a diagnosis of post-polio syndrome and Richardson must meet one
of three symptoms (persistent difficulty with swallowing or breathing, unintelligible speech,
or disorganization of motor function). 20 C.F.R. § 404, subpt. P, app.1. At the hearing,
Richardson testified to having difficulty breathing, swallowing, cramps in her hands, joint
pain, and fatigue. The ALJ found her testimony to be largely credible, but found that
“[g]iven the laboratory findings in the record, in addition to the doctors’ progress notes, and
other documentary evidence, the claimant falls short of satisfying criteria for post-polio
syndrome.” [Tr. 12]. In short, though the ALJ gave weight to Richardson’s testimony and
did not discredit it, the objective medical evidence did not support her testimony. The
medical evidence in the record objectively shows that Richardson does not meet one of the
three symptoms required for Listing 11.11. See Tr. 180, 209, 231, 266.
Richardson argues that the ALJ was required to consult with Richardson’s treating
physicians or a consultive physician and should not have given “great weight” to the opinion
of Dr. Payne. The ALJ is entitled to rely on the opinions of reviewing physicians when

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considering whether the claimant meets the requirements of a listed impairment. Ostronski
v. Chater, 94 F.3d 413, 417 (8th Cir. 1996). The judgment of a physician or psychologist
designated by the Commissioner on the issue of whether a claimant has impairments that
equal a Listing must be received into the record as expert opinion evidence and given
appropriate weight. Social Security Ruling 96-6p at 3. Those opinions may be entitled to
greater weight than the opinions of treating or examining sources. Id. Dr. Payne considered
the objective medical evidence present and offered his opinion that Richardson could
perform “light work.” [Tr. 13, 33-34, 237]. Additionally, another physician, Dr. Redd,
reviewed the evidence and Dr. Payne’s opinion upon reconsideration and verified that
determination. [Tr. 9, 35-36, 258-60]. Richardson cites several cases to support her
argument that an ALJ’s reliance on a consulting physician’s opinion is not substantial
evidence. Thompson v. Bowen, 850 F.2d 346 (8th Cir. 1988); Laurer v. Apfel, 245 F.3d 700
(8th Cir. 2001); Onstead v. Sullivan, 962 F.2d 803 (8th Cir. 1992). Richardson stretches
these cases too far as they involve situations where the consulting physician’s opinion
contradicts that of the treating physician. That is not the case here.
The ALJ properly examined the objective medical records, Richardson’s testimony,
and the opinion of Dr. Payne and was not required to consult with treating physicians or
consultive physicians. It is only necessary to seek additional clarifying statements from a
treating physician when a crucial issue is undeveloped. Stormo v. Barnhart, 377 F.3d 801,
806 (8th Cir. 2004). An ALJ is required to re-contact medical sources and may order

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consultative evaluations only if the available evidence does not provide an adequate basis
for determining the merits of the disability claim. Sultan v. Barnhart, 368 F.3d 857, 863
(8th Cir. 2004). There was substantial evidence in the record for Dr. Payne and the ALJ to
determine that Richardson’s impairments did not meet Listing 11.11 and consultation with
a treating physician was unnecessary.
2. Assessment of Residual Functional Capacity
Richardson argues that the ALJ improperly assessed her residual functional capacity
in not assessing her abilities on a function-by-function basis and not obtaining an opinion
on residual functional capacity. The Commissioner argues that the ALJ is not required to
discuss a claimant’s abilities on a function-by-function basis, but instead must explain how
the evidence supports conclusions about a claimant’s limitations.

Additionally, the

Commissioner argues that another opinion on residual functional capacity was not required
as the ALJ’s assessment was supported by medical evidence.
An ALJ bears the primary responsibility for assessing a claimant’s residual functional
capacity based on all the evidence. See Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.
1995). The ALJ must determine the claimant’s residual functional capacity based on all
relevant evidence, including medical records, observations of treating physicians and others,
and claimant’s own descriptions of her limitations. Baldwin v. Barnhart, 349 F.3d 549, 556
(8th Cir. 2003). Richardson argues that the ALJ needed to perform a “function-by-function”
assessment of her abilities as required by Social Security Ruling 96-8p. The ALJ’s residual

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functional capacity determination clearly included physical and mental functioning, as
required by Ruling 96-8p. Consistent with the Ruling, the ALJ narratively discussed
medical evidence, symptoms, subjective complaints and other evidence, recognized that
Richardson’s impairments created limitations and incorporated those limitations into the
residual functional capacity. [Tr. 12-13]. The ALJ properly examined the objective medical
evidence as to Richardson’s range of motion and strength and noted that the medical
evidence points to “normal outcomes from nerve conduction studies, from spine films, from
clinic assessments[.]” [Tr. 13]. Indeed, the medical evidence from the time that Richardson
claims an onset of disability bears out the ALJ’s finding. [Tr. 181, 187-95, 210, 247-48, 26768]. Richardson argues that the ALJ is required to consider her own description of pain and
limitations and cites Masterson v. Barnhart. 363 F.3d 731, 738 (8th Cir. 2004). In fact, that
case properly holds that the ALJ should assess “a claimant's residual functional capacity
based on all relevant evidence. Id. at 737-38. This includes not only the claimant’s
subjective complaints, but medical evidence. Id. at 738. A fair reading of the ALJ’s opinion
reveals that he properly determined Richardson’s residual functional capacity.
Richardson also argues that the ALJ should have procured an opinion on residual
functional capacity. Plaintiff cites in support of this argument Nevland v. Apfel. 204 F.3d
853 (8th Cir. 2000). In that case, there was no medical evidence as to how the claimant’s
impairments affected his ability to function. That is not the case here, the medical evidence
in the record bears out the ALJ’s finding that Richardson can return to sedentary work. An

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ALJ is required to re-contact medical sources and may order consultative evaluations only
if the available evidence does not provide an adequate basis for determining the merits of
the disability claim. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004). The ALJ
properly examined the evidence in the record and his conclusion is supported by substantial
evidence.
3. Use of a Vocational Expert
Richardson argues that the ALJ erred in not taking into account her non-exertional
functional limitations and not using a vocational expert when it was determined that she
could not perform her past work. The Commissioner argues the ALJ properly found that
Richardson’s subjective complaints were not fully credible and was, thus, entitled to use the
grid rules and dispense with the need for a vocational expert.
The ALJ determined at step four that Richardson was unable to perform her past
relevant work experience. [Tr. 13-14]. In step five, the ALJ determined based upon her age,
work experience, education, and her residual functional capacity to do sedentary work that
Richardson was not disabled based on the medical vocational guidelines, specifically grid
rule 201.27. [Tr. 14]. Richardson argues that her non-exertional impairments preclude the
ALJ from applying the grid rules and that, instead, a vocational expert should have been
called. Richardson cites McCoy v. Schweiker in support of her argument that non-exertional
impairments mandate the use of a vocational expert. 683 F.2d 1138 (8th Cir. 1982). McCoy
does not stand for that proposition. If an individual has a combination of exertional and

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non-exertional impairments, the Guidelines are first considered to determine whether she is
entitled to a finding of disability based on exertional impairments alone. 20 C.F.R. Pt. 404,
Subpt. P, App. 2 § 200.00(e)(2); McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir. 1982).
The ALJ may use the Guidelines even though there is a non-exertional impairment if the
ALJ finds, and the record supports that finding, that the nonexertional impairment does not
diminish the claimant's residual functional capacity to perform the full range of activities in
the Guidelines. Thompson v. Bowen, 850 F.2d 346, 349-50 (8th Cir. 1988). Even if an ALJ
fails to call a vocational expert, it is not reversible error if there is substantial evidence on
the whole record that a claimant’s non-exertional impairment does not significantly limit her
exertional capabilities. Dawson v. Bowen, 815 F.2d 1222, 1227 (8th Cir. 1987). Where, as
here, the ALJ properly discredited a claimant’s subjective complaint of non-exertional
impairment, the ALJ is not required to consult a vocational expert and may properly rely on
the Guidelines at Step 5. Reynolds v. Chater, 82 F.3d 254, 258-59 (8th Cir. 1996). The
record firmly supports the ALJ's finding that Richardson had no non-exertional impairments
that significantly affected her residual functional capacity to perform a full range of
sedentary work activities. The ALJ appropriately relied on the Guidelines to find that
Richardson could perform other work that exists in adequate numbers in the national
economy and that Richardson is not disabled.
IV. CONCLUSION
The Commissioner’s decision is hereby affirmed.

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IT IS SO ORDERED this 28th day of September 2011.

________________________________
UNITED STATES DISTRICT JUDGE

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