Barnes v. Social Security Administration

Filing 14

MEMORANDUM OPINION AND ORDER affirming the final determination of the Commissioner; and dismissing Plaintiff's Complaint with prejudice. Signed by Magistrate Judge Joe J. Volpe on 1/8/2015. (srw)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
ANTHONY BARNES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

*
*
*
*
*
*
*
*
*
*

No. 3:14CV00191-JJV

MEMORANDUM OPINION AND ORDER
Plaintiff, Anthony Barnes, appeals the final decision of the Commissioner of the Social
Security Administration denying his claims for disability insurance benefits under Title II of the
Social Security Act and for supplemental security income benefits under Title XVI of the Act. For
reasons set out below, the decision of the Commissioner is AFFIRMED.
I.

BACKGROUND
On December 8, 2011, Mr. Barnes protectively filed for benefits due to leg problems from

artery blockage, splintered right wrist, broken ankle, broken arm, broken ribs, broken sternum,
plastic tube in stomach, and cyst on kidney. (Tr. 178) His claims were denied initially and upon
reconsideration. At Mr. Barnes’s request, an Administrative Law Judge (“ALJ”) held a hearing on
June 26, 2013, where Mr. Barnes appeared with his lawyer. At the hearing, the ALJ heard testimony
from Mr. Barnes and a vocational expert (“VE”). (Tr. 22-44)
The ALJ issued a decision on July 25, 2013, finding that Mr. Barnes was not disabled under
the Act. (Tr. 9-17) The Appeals Council denied Mr. Barnes’s request for review, making the ALJ’s
decision the Commissioner’s final decision. (Tr. 1-3)

1

Mr. Barnes, who was fifty-two years old at the time of the hearing, has a tenth grade
education and past relevant work experience as a spot welder. (Tr. 26, 41)
II.

DECISION OF THE ADMINISTRATIVE LAW JUDGE1
The ALJ found that Mr. Barnes had not engaged in substantial gainful activity since July 1,

2003, and he had the following severe impairments: history of polytrauma (remote), peripheral artery
disease, and history of remote arterial injury. (Tr. 11-12) However, the ALJ found that Mr. Barnes
did not have an impairment or combination of impairments meeting or equaling an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1.2 (Tr. 12) According to the ALJ, Mr. Barnes has the
residual functional capacity (“RFC”) to do light work, except he is limited to no more than frequent
climbing. (Tr. 12) The VE testified that the jobs available with these limitations were small
products assembler and egg washer. (Tr. 42) Accordingly, the ALJ determined that Mr. Barnes
could perform a significant number of other jobs existing in the national economy, and found he was
not disabled.
III.

ANALYSIS
A.

Standard of Review

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.3 Substantial evidence is “less

1

The ALJ followed the required sequential analysis 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; and (4) if not, whether the impairment (or combination of impairments) prevented the
claimant from performing past relevant work; 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. §§ 416.920(a)-(g) and 404.1520(a)-(g).
2

20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926.

3

Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g).
2

than a preponderance, but sufficient for reasonable minds to find it adequate to support the
decision.”4
In reviewing the record as a whole, the Court must consider both evidence that detracts from
the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be
reversed “simply because some evidence may support the opposite conclusion.”5
B.

Mr. Barnes’s Arguments for Reversal

Mr. Barnes asserts that the Commissioner’s decision should be reversed because it is not
supported by substantial evidence. To support his position that the ALJ erred, Mr. Barnes relies on
Dr. Waddy’s September 2010 assessment, Dr. Liggett’s findings from 2009, and a March 2011 bone
scan. (Doc. No. 11) While this evidence may support Mr. Barnes’s position, the question is whether
“good reasons and substantial evidence” exist to support the ALJ’s finding; they do.6
1.

Dr. Waddy’s Finding

In September 2010, Dr. Waddy determined that Mr. Barnes had “moderately severe” walking
limitations and “moderate” standing limitations due to his peripheral arterial disease. (Tr. 403) The
ALJ questioned Dr. Waddy’s finding because it was made “despite a normal examination” and noted
that nothing in Dr. Waddy’s review supported his conclusion. (Tr. 14) In fact, Dr. Waddy found that
Mr. Barnes was able to stand and walk without assistive devices, stand from a sitting position, had
negative straight leg raises, and had normal strength and reflexes. (Tr. 402)

4

Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)).

5

Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).

6

Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
3

Additionally, Mr. Barnes’s arterial problems were the result of an accident in the early 1980s,
so he worked for years after having surgery to correct the issues.7 (Tr. 165-171) Finally, Dr.
Waddy’s limitations are contradicted by Mr. Barnes’s physical activity -- e.g., in 2006 Mr. Barnes
attempted to run from the police but, eventually was caught by a police dog and, as discussed below,
in 2007 he wanted to be on Arkansas Department of Correction work release. (Tr. 255, 368)
Ultimately, the ALJ found Dr. Waddy’s opinion “unpersuasive” in light of the other evidence in the
record. (Tr. 14) An ALJ is permitted to disregard a physician’s opinion when it is inconsistent or
where other medical assessments are better supported.8
2.

Dr. Liggett’s Findings

Mr. Barnes also contends that an assessment by Dr. Liggett supports his disability claim.
When Mr. Barnes was in the ADC in 2009, Dr. Liggett conducted an “Initial Report of Physical
Examination” and noted that Mr. Barnes had “[w]eak femoral and no distal pulses by palpation
consistent with Aortoiliac and left distal arterial occlusive disease.” (Tr. 322) Dr. Liggett indicated
that Mr. Barnes should be restricted from assignments “requiring prolonged crawling, stooping,
running, jumping, walking, or standing” and classified him as an M-2.” (Tr. 323) First, this
restriction was a listing that included all of those categories and Dr. Liggett did not note one as more
than severe than the other -- in other words, it was all or none. Furthermore, these limitations are
contrary to Mr. Barnes’s own assessment of his abilities. When Mr. Barnes was incarcerated in
2006, the ADC doctor determined he had “only slight limited mobility” in the upper extremities and
“slightly limited mobility” in the lower extremities, and classified him as M-2 which is “Average-

7

Krone v. Apfel, 187 F.3d 642 (8th Cir. 1999) (finding that “despite some evidence of a
possible mental impairment,” the fact that claimant continued to work indicated that any impairment
was not disabling).
8

Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012).
4

Good Physical Condition.” (Tr. 245) In 2007, Mr. Barnes asked that his work status be upgraded
from M-2 to M-1 so he could be on work release; the request was granted. (Tr. 14, 255) Also worth
noting is the fact that the ADC doctor’s findings and Mr. Barnes’s upgrade request were made a
decade after the on-set of the artery problems in his legs -- a problem he had for years while working.
(Tr. 242) Finally, at the hearing, Mr. Barnes testified that the only problems that affected his ability
to work were his left wrist and left ankle, and those issues were sustained in a 2011 motor vehicle
accident, which was after the assessments by Dr. Liggett (and Dr. Waddy). (Tr. 34)
3.

No Medication and Failure to Seek Treatment

The ALJ noted, and Mr. Barnes testified, that he takes no medications for his alleged
impairments. (Tr. 14, 36) Mr. Barnes also testified that he had not seen a doctor for his wrist and
ankle problems since March 2011, when the injuries were first sustained. (Tr. 34-35) Between 2003
and 2011, Mr. Barnes saw the doctor for a snake bite, a spider bite, a cut on the hand, acid reflux,
toothaches, and a dog bite, but not for any of his alleged impairments. (Tr. 249-268, 368-384) The
ALJ was permitted to weigh the credibility of Mr. Barnes’s subjective complaints of pain by
considering whether he sought regular medical treatment.9
Though Ms. Barnes asserts he is unable to afford medication and treatment, he is a smoker
and, according the medical records, has been smoking at least a pack-a-day for over thirty-five years.
(Tr. 34, 241, 355, 368, 373, 471) Smoking is an expensive, ongoing habit that can be considered
when weighing Mr. Barnes’s credibility.10

9

Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003).

10

Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (rejecting claimant’s position that he
could not afford medication when “there is no evidence to suggest that he sought any treatment
offered to indigents or chose to forgo smoking three packs of cigarettes a day to help finance pain
medication.”).
5

4.

Other Medical Evidence

A September 27, 2010, doppler found “no significant peripheral vascular disease” and
indicated that “[t]he arterial waveform [was] normal and triphasic” in both lower extremities. (Tr.
420-421) This report belies the restrictions noted by Dr. Waddy and Dr. Liggett.
An April 12, 2012, disability determination by Dr. Troxel concluded that Mr. Barnes had “no
significant [reduction in] ability to walk, stand, sit, lift, carry, handle, finger, see, hear, or speak” (Tr.
475)
A 2012 x-ray of Mr. Barnes’s wrist revealed “no signs of acute boney injuries or other
osseous disease” and noted “an old, nonunion fracture of the distal ulnar styloid process.” (Tr. 480)
An back x-ray was unremarkable and “incidentally noted” only “degenerative changes of the cervical
spine.” (Tr. 482) The conclusions on the ankle x-ray were “[s]oft tissue swelling . . . [but] not signs
of acute fracture, dislocations, or other evidence of acute bony injuries. Probable old healed
calcaneal fracture.” (Tr. 484) The ALJ relied on these x-ray reports and noted they supported Dr.
Troxel’s conclusions. (Tr. 14)
The ALJ also relied on the reviews by the state agency medical consultants who determined
that Mr. Barnes had the ability to perform light work. (Tr. 15)
Mr. Barnes testified that his feet swell any time he is on them for an extended period. (Tr.
36) “While pain may be disabling if it precludes a claimant from engaging in any form of substantial
gainful activity, the mere fact that working may cause pain or discomfort does not mandate a finding
of disability.”11 Though there may be some evidence that Mr. Barnes has limitations related to his
impairments, the ALJ’s finding that he could perform light work is supported by the record.12

11

Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996).

12

Davis v. Apfel, 239 F.3d 962 (8th Cir. 2001) (“We may not reverse merely because
substantial evidence also exists that would support a contrary outcome, or because we would have
6

IV.

CONCLUSION
The Court has reviewed the entire record, including the briefs, the ALJ’s decision, the

transcript of the hearing, and the medical and other evidence. There is sufficient evidence in the
record as a whole to support the Commissioner’s decision.
THEREFORE, the Court hereby affirms the final determination of the Commissioner and
dismisses Plaintiff’s Complaint with prejudice.
IT IS SO ORDERED this 8th day of January, 2015.

____________________________________
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE

decided the case differently.”).
7