Willyerd v. Social Security Administration

Filing 19

ORDER affirming the decision of the Commissioner. This case is dismissed, with prejudice. Signed by Magistrate Judge Beth Deere on 1/23/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
BENNY WILLYERD
V.

PLAINTIFF
CASE NO. 3:16-CV-00006 BD

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

ORDER
I. Introduction:
Plaintiff Benny Willyerd applied for disability benefits on March 26, 2013,
alleging a disability onset date of October 21, 2008.1 (Tr. at 35) After conducting a
hearing, the Administrative Law Judge (“ALJ”) denied his application. (Tr. at 44) The
Appeals Council denied his request for review. (Tr. at 1) The ALJ’s decision now stands
as the final decision of the Commissioner. Mr. Willyerd filed this case seeking judicial
review. The parties have filed their briefs and the case is ripe for decision.2
II. The Commissioner’s Decision:
The ALJ found that Mr. Willyerd had not engaged in substantial gainful activity
since his last denial of benefits on June 7, 2011. (TR. at 37) At Step Two, the ALJ

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Mr. Willyerd previously applied for benefits in 2009 and was denied benefits
after a hearing in a decision dated June 7, 2011. That determination is administratively
final; therefore, the relevant period considered both by the ALJ and by this Court is June
8, 2011 through December 31, 2013 (Mr. Willyerd’s date last insured).
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The parties have consented in writing to the jurisdiction of a United States
Magistrate Judge.

found that Mr. Willyerd has the following severe impairments: degenerative disc disease
of the lumbar spine, bilateral carpal tunnel syndrome, and limited vision. (Tr. at 38)
After finding that Mr. Willyerd’s impairments did not meet or equal a listed
impairment (Tr. at 38), the ALJ determined that Mr. Willyerd had the residual functional
capacity (“RFC”) to perform light work, except that he could not perform work that
requires the climbing of ladders, ropes, or scaffolds, with no more than occasional
climbing of ramps and stairs; he could only occasionally balance, kneel, crouch, or crawl;
he could not perform work that would expose him to unprotected heights; he could
perform work requiring no more than frequent fingering and handling; and he could
perform work only where excellent vision is not required. (Tr. at 39)
The ALJ found that Mr. Willyerd could not perform his past relevant work. (Tr. at
42) At Step Five, the ALJ relied on the testimony of a Vocational Expert (“VE”) to find
that, based on Mr. Willyerd’s age, education, work experience and RFC, jobs existed in
significant numbers in the national economy that he could perform at the light level,
specifically, janitor/cleaner and cafeteria attendant. (Tr. at 43) Based on that Step Five
determination, the ALJ found that Mr. Willyerd was not disabled. (Tr. at 44)
III. Discussion:
A. Standard of Review
The Court’s role is to determine whether the Commissioner’s findings are
supported by substantial evidence. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000).

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“Substantial evidence” in this context means less than a preponderance but more than a
scintilla. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009). Stated another way, it is
“enough that a reasonable mind would find it adequate to support the ALJ’s decision.”
Id. (citation omitted). The Court must consider not only evidence that supports the
Commissioner’s decision, but also evidence that supports a contrary outcome. The Court
cannot reverse the decision, however, “merely because substantial evidence exists for the
opposite decision.” Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (quoting Johnson
v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)).
B. Mr. Willyerd’s Argument on Appeal
Mr. Willyerd argues that substantial evidence does not support the ALJ’s RFC
finding because the ALJ’s credibility analysis was flawed. Specifically, he argues that the
ALJ should have included a sit-stand option based on the statement of a consultative
examiner, Dr. Mark Tait, M.D., that Mr. Willyerd “would require periods of sitting
throughout the day.” (Docket entry #14 at 12, Tr. at 296). Mr. Willyerd speculates that
this means he could not stand or walk for six hours in a normal workday, and therefore,
could not perform work at the light level.
A claimant’s RFC represents the most he can do despite the combined effects of all
of his credible limitations, and it must be based on all credible evidence. McCoy v.
Astrue, 648 F.3d 605, 614 (8th Cir. 2011). The ALJ considered the record as a whole in
arriving at the appropriate RFC.

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The medical evidence reveals that Mr. Willyerd had degenerative disc disease at
multiple levels in the lumbar spine. (Tr. at 284, 287, 312-313, 348) His treating doctors
and the state agency consultative doctors agreed on that diagnosis. (Tr. at 71, 82)
Straight leg raises, however, were negative on March 19, 2012 and May 4, 2013 (Tr. at
280, 295) Dr. Tait found, in a May 4, 2013 examination, that Mr. Willyerd could rise
from a sitting position without assistance, bend and squat without difficulty, and that he
had a full range of motion in his spine. (Tr. at 295) He could tandem walk without
problems and could walk without an assistive device. Id. At that examination, Mr.
Willyerd denied low back pain and said he was independent in activities of daily living.
(Tr. at 294) Imaging of the lumbar spine showed good alignment, normal vertebral
height, disc space within normal limits, and only mild-to-moderate degenerative disc
disease. Objective tests showing mild-to-moderate conditions do not support a finding of
disability. Masterson v. Banrhart, 363 F.3d 731, 738-39 (8th Cir. 2004).
The non-examining medical experts indicated that Mr. Willyerd could perform
medium work. (Tr. at 71, 83). Additionally, a functional capacity examination completed
on November 24, 2009, showed that Mr. Willyerd could perform medium work with
occasional lifting in the heavy classification. (Tr. at 369). The ALJ gave these opinions
some weight, but restricted Mr. Willyerd to light work instead of medium or heavy work
that state-agency consultants had recommended. (Tr. at 42).

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The record reflects that Mr. Willyerd shopped twice a week for groceries, picked
up after himself, helped his wife with cooking, took care of his dog, played with his
grandchildren, watched movies, and drove a car. (Tr. at 15-22, 221-230) His pain
restricted him from certain activities and he had to take breaks while cooking. (Tr. at
228) Mr. Willyerd testified that he had to sit to bathe himself could not walk very far (Tr.
at 19-20). The postural limitations in the assigned RFC (occasional climbing, balancing,
kneeling, crouching, and crawling) incorporate Mr. Willyerd’s alleged restrictions in daily
activities. (Tr. at 39) The ALJ did not err in his RFC finding; he properly considered the
medical evidence and Mr. Willyerd’s activities of daily living in arriving at the RFC.
Mr. Willyerd also asserts that the ALJ did not give proper weight to his subjective
complaints of pain, but instead, selectively relied on evidence that weighed against Mr.
Willyerd’s credibility. Before coming to a conclusion on a claimant’s credibility, an ALJ
must give full consideration to all of the evidence presented relating to subjective
complaints, including his prior work record, as well as observations by third parties and
treating and examining physicians regarding: the claimant’s daily activities; the duration,
frequency and intensity of pain; precipitating and aggravating factors; dosage,
effectiveness and side effects of medication; and functional restrictions. Polaski v.
Heckler, 751 F.2d 943, 948 (8th Cir. 1984).
Mr. Willyerd’s various activities of daily living indicate that his pain was not as
debilitating as he asserted. In addition, the record is replete with evidence that pain

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medications were effective for Mr. Willyerd. In March 2012, his lumbar degenerative
disc disease was controlled by medication. (Tr. at 280) On December 19, 2013, Dr.
Hollis, M.D., Mr. Willyerd’s primary care physician, noted that Mr. Willyerd’s back pain
was better with medication. (Tr. at 345) At the hearing on April 7, 2014, Mr. Willyerd
testified that his medication “cuts my pain in half,” and he said he had no side effects
from medication. (Tr. at 18) Mr. Willyerd’s statement to Dr. Hollis on September 30,
2010 that his pain was a 5 out of 10 with medications and a 10 out of 10 without them is
consistent with his later reports that medication was effective. (Tr. at 287)
At an April 28, 2011 hearing on his first application, Mr. Willyerd stated that
oxycodone “knocks the edge of my pain,” and that Celexa worked for his irritability. (Tr.
at 112) Impairments that are controllable or amendable to treatment do not support a
finding of total disability. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000).
Moreover, Mr. Willyerd sought only conservative medication management, rather
than surgery, injections, or physical therapy. See Edwards v. Barnhart, 314 F.3d 964, 967
(8th Cir. 2003) (holding that failure to seek regular and available medical treatment
undermines claims of disabling pain). Reports from Manila Rehab Services in August
2008 indicate that, while Mr. Willyerd was supposed to attend 12 visits within 31 days, he
failed to show up for his appointment and did not reschedule. (Tr. at 331, 337)
Mr. Willyerd elected not to have carpal tunnel surgery because he could not afford
it. (Tr. at 106) There is no record that he sought free or low-cost surgical options, which

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is a valid reason for an ALJ to discount a claimant’s credibility. See Riggins v. Apfel, 177
F.3d 689, 693 (8th Cir. 1999) (absent evidence claimant was denied low-cost or free
medical care, claimant’s argument he could not afford medical care was appropriately
discounted); Goodale v. Halter, 257 F.3d 771, 773-74 (8th Cir. 2001) (holding as
permissible the ALJ’s regard of claimant’s refusal to undergo carpal tunnel surgery as
evidence that pain was “something [claimant] could live with.”)
Finally, Dr. Hollis did not impose any functional restrictions on Mr. Willyerd,
although he regularly treated Mr. Willyerd at his clinic. A lack of physician-imposed
restrictions may serve as a reason to discredit claims of disabling pain. Hensley v.
Barnhart, 352 F.3d 353, 357 (8th Cir. 2003).
The ALJ properly weighed the Polaski factors in making his credibility
determination, and the Court will not disturb the ALJ’s finding that Mr. Willyerd was not
disabled. The credibility of a claimant’s subjective complaints is primarily a matter for
the ALJ to decide, not the courts. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir.
1987).
IV. Conclusion:
There is substantial evidence to support the Commissioner’s decision to deny
benefits. The RFC determination incorporated the evidence in the record as a whole, and
the ALJ did not err in finding Mr. Willyerd only partially credible. The finding that Mr.

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Willyerd was not disabled within the meaning of the Social Security Act, therefore, must
be, and hereby is, affirmed. The case is dismissed, with prejudice.
IT IS SO ORDERED this 23rd day of January, 2017.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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