Sherrod v. Social Security Administration

Filing 11

ORDER affirming the Commissioner's decision & dismissing Sherrod's complaint with prejudice. Signed by Judge D. P. Marshall Jr. on 3/22/2012. (jct)

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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

JONESBORO DIVISION

ANTHONY R. SHERROD

v.

PLAINTIFF

No.3:11-cv-51-DPM

MICHAELJ. ASTRUE, Social
Security Commissioner

DEFENDANT
ORDER·

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1.

Anthony Sherrod sought disability insurance benefits and

supplemental security income. He listed his medical problems as U[b]ack
pain, arthritis, obesity, diabetes, [high blood pressure], cholesterol." After a
hearing, the Administrative Law Judge found that Sherrod was not disabled
and that he could still perform light work with a sit/ stand option and was
capable of performing past relevant work as a cashier, cafeteria attendant, and
shipping clerk. The Appeals Council denied Sherrod's request for review, so
tlJ.e ALI's decision became the Commissioner's decision. Sherrod appeals,
arguing that the ALI's decision is not supported by substantial evidence.
In this Court's review, U[t]he findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be

conclusive[.]" 42 U.S.C. § 405(g). "Substantial evidence means less than a

preponderance but enough that a reasonable person would find it adequate
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to support the decision." Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
This Court considers all the evidence, but will not reverse simply because the
evidence could also support a contrary conclusion. Ibid. And the Court
defers to the AL}'s credibility determinations, "so long as they are supported
by good reasons and substantial evidence." Ibid. (quotation omitted).
2. Sherrod first argues that the ALJ erred at step three by not finding
that he met Listing 1.04 for spinal conditions. Sherrod also contends that the
AL} erred by not explaining why he found that Sherrod failed to meet this
Listing. But"[t]hefactthattheALJ does not elaborate on this conclusion does
not require reversal where the record supports his overall conclusion." Jones

v. Astrue, 619 F.3d 963, 969 (8th Cir. 2010) (quotation and alterations omitted).
This is one of those cases. The medical records, particularly from Drs. Cagle
and Gilliam, provide substantial evidence supporting the AL}' s conclusion
that Sherrod did not demonstrate an impairment or combination of
impairments meeting the criteria of Listing 1.04. Gonzales v. Barnhart, 465 F.3d
890,894 (8th Cir. 2006) (burden of proof).
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3. Next, Sherrod argues that the ALJ erred in weighing the medical

evidence and medical opinions. This Court must and does consider all the
evidence. But the Court does not re-weigh the evidence and defers to the
At.}'s credibility determinations

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so long as such determinations are

supported by good reasons and substantial evidence." Vester v. Barnhart, 416
F.3d 886, 889 (8th Cir. 2005). Even if this Court finds that the evidence
supports two inconsistent positions, if one of those positions represents the
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ALl's findings, [then] the [C]ourt must affirm the ALl's decision." Partee v.

Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quotation omitted).
The Court declines Sherrod's invitation to re-weigh the evidence, of
whatever stripe, here. Though, as Sherrod presses, some of the medical
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evidence and opinions in the record support his position, it is not enough to
tip the scales in his favor. For example, his treating doctor's bottom-line
opinion that Sherrod qualified for a handicapped license plate does not
determine the disability issue before the Commissioner, though, of course, it
is a fact favoring Sherrod's claim. Taking all the evidence into account,
substantial evidence supports the ALl's decision. And to the extent Sherrod
challenges the ALl's credibility analysis, the ALJ properly analyzed Sherrod's

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subjective complaints in light of Polaski v. Heckler, 739F.2d 1320 (8th Cir.1984)
and related authority. Good reasons and substantial evidence support the
ALl's conclusion that Sherrod's

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statements concerning the intensity,

persistence and limiting effects of [his] symptoms are not credible to the
extent they are inconsistent with the residual functional capacity assessment."

Transcript at 12; see also McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011).
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4. Sherrod also argues that the ALJ erred in determining his residual

functional capacity. Following Social Security Ruling 96-8p and related
regulations, the ALJ discussed the medical evidence, Sherrod's subjective
complaints, and the other evidence.

Rather than ignoring Sherrod's

impairments and limitations, the ALJ acknowledged and accounted for them
with the sit/stand option in his residual functional capacity determination.
In short, substantial evidence supports the ALI's decision on this point too.

Masterson v. Barnhart, 363 F.3d 731, 737-39 (8th Cir. 2004).
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5. Next, did the ALJ err by not seeking a residual functional capacity

opinion from Sherrod's treating physician or through a consultative
examination? Sherrod says yes. uIt is reversible error for an ALJ not to order
a consultative examination when such an evaluation is necessary for him to

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make an informed decision." Haley v. Massanari, 258 F.3d 742, 749 (8th Cir.
2(01) (quotation omitted). But here, as in Haley, "there was substantial
evidence in the record to allow the ALJ to make an informed decision." Ibid.
The ALJ committed no error on this point.
6. Sherrod argues last that the ALJ erred by failing to include all his
limitations in the hypothetical scenarios he posed to the Vocational Expert.
These hypotheticals, Sherrod says, should have included his physical
limitations from his back problems, irritable bowel syndrome, and seasonal
allergies. Sherrod's argument, however, is moot. The Court has concluded
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that the ALI's decision-Sherrod has the residual functional capacity to
perform light work with a sit/stand option and is capable of performing past
relevant work as a cashier, cafeteria attendant, and shipping clerk - is
supported by substantial evidence. This conclusion means that Sherrod's case
is decided at step four. IIVocational expert testimony is not required at step
four where the claimant retains the burden of proving [he] cannot perform
[his] prior work. Therefore, [Sherrod's] claim that the ALJ posed a defective
hypothetical to the vocational expert is moot." Lewis v. Barnhart, 353 F.3d 642,
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648 (8th Cir. 2003) (citations omitted).
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If-

If-

If-

The Court affirms the Commissioner's decision and dismisses Sherrod's
complaint with prejudice.
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So Ordered.

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D.P. Marshall Jr.

United States District Judge

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