Johnson v. Social Security Administration
ORDER denying plaintiff's request to reverse or remand the ALJ's decision and DISMISSING CASE. Signed by Judge Billy Roy Wilson on 4/22/11. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LAYLA SHAYNE JOHNSON
MICHAEL J. AUSTERE,
Commissioner of the
Social Security Administration
Pending is a review of the Commissioner’s denial of Supplemental Security Income and
Disability Insurance Benefits. Plaintiff and Defendant have submitted briefs (Doc. Nos. 12, 13).
After reviewing the record, Plaintiff’s request for relief is denied.
Plaintiff applied for Supplemental Security Income and Disability Insurance Benefits on
March 27, 2007.1 Plaintiff claimed to be unable to work starting on July 1, 2006.2 The
applications were initially denied on December 6, 2007,3 and, after reconsideration, were denied
again on March 13, 2008.4 Administrative Law Judge (“ALJ”) Robert L. Neighbors heard
Plaintiff’s case on June 11, 2009.5 The ALJ denied benefits on July 22, 2009, finding that
Administrative Record (“A.R.”) 98-106.
Plaintiff was capable of performing past relevant work as a fast food worker and assembly line
worker.6 The Appeals Council denied Plaintiff’s appeal on January 8, 2010.7
Plaintiff claims to be disabled due to mental and physical impairments.8 At the time of
the ALJ’s decision, Plaintiff was 30 years old, and had not worked since July 1, 2006.9 In 1988
Plaintiff was hit by a car while crossing the street, which resulted in brain trauma.10 She was in a
coma for three days, and had to relearn how to walk and talk.11 The accident caused her to grow
asymmetrically, with her left side being longer than the right side of her body.12 In 2001, she was
in a car accident that caused a broken femur, after which a metal rod was inserted in her leg.13
The rod was later removed because it was not the correct size.14
A.R. 100, 108.
A.R. 28. The only evidence of this impairment is anecdotal. None of the medical reports
provide measurements that show the degree to which Plaintiff’s extremities are asymmetrical. A
note written by Dr. Richard Pellegrino stated that Plaintiff’s left hand and foot were “much
bigger” than her right. A.R. 365.
Plaintiff attended high school until the tenth or eleventh grade.15 She does not remember
which grade she was in when she dropped out.16 Plaintiff said she left school because she was
working nights as an exotic dancer.17 She received a general education diploma (“GED”) in
1995.18 Plaintiff received some college credits at a community college.19 Plaintiff has a past work
history of fast food and factory work.20 She claimed that the longest she ever worked in fast food
or at a factory was six months.21 From 1998-2005, she reported that she operated her own escort
From July through September 2006, Plaintiff saw Dr. Ray Bollen at the Baptist Health
Center in Malvern, Arkansas.23 Dr. Bollen attempted to treat Plaintiff for anxiety, panic attacks,
and for chronic left hip pain.24 From July 2006 through February 2007, Plaintiff also sought help
at Therapeutic Family Services, Inc (“TFC”).25 The therapists at TFC counseled Plaintiff for
anxiety, depression, mood disorders, and memory problems.26 In addition, the therapists
A.R. 26, 125.
attempted to develop anxiety coping and other life skills.27 In August 2007, Dr. Absalom Tilley
treated Plaintiff for bipolar and anxiety disorders.28 Dr. Tilley later treated Plaintiff for other
problems including ankle swelling.29
In November 2007, Plaintiff saw psychologist Michael P. Inman, PhD.30 The
psychologist diagnosed her in Axis I as bipolar, with psychotic features, and anxiety disorder;
and in Axis II as having a personality disorder, with histrionic and antisocial traits.31 A state
agency psychologist, Rhonda Tanehill, PhD., also examined Plaintiff in November 2007.32 Dr.
Tanehill’s diagnosis of Plaintiff was identical to Dr. Inman’s,33 with the exception of finding it
likely that Plaintiff did not put forth her best effort on the tests.34 In addition, Dr. Tanehill noted
inconsistencies with the history provided by Plaintiff and the histories on the records she
In January 2008, Plaintiff checked herself into Levi Hospital for psychiatric services.36
She reported feeling depressed and being unable to leave the bed, and was having difficulty
caring for her children.37 A urinalysis test was positive for THC and for benzodiazepines.38 She
was discharged after three days of inpatient treatment.39 From March through July 2009, Plaintiff
saw Dr. Jim Aukstuolis at TFC.40 Dr. Aukstuolis provided a statement that said that Plaintiff had
poor to no abilities to make occupational, performance, or personal-social adjustments or to
engage successfully in other work-related activities.41
From January 2008 through May 2009, Plaintiff was treated at Pinnacle Physicians
Group in the Sheridan Family Clinic for ankle pain and other maladies including her bipolar and
anxiety disorders.42 In April 2009, she was referred by Dr. Tilley to neurologist Dr. Richard G.
Pellegrino.43 Dr. Pellegrino noted that Plaintiff body was asymmetrical and this was likely the
result of her childhood injury.44 The doctor also noted that Plaintiff’s memory problems were
typical of someone with brain trauma.45 Dr. Pellegrino reviewed data from an MRI and EEG
A.R. 228. Benzodiazepines are a family of drugs that includes Xanax and Klonopin,
which were both prescribed to her at various times. Physicians’ Desk Reference, 2126, 2649
(50th ed. 1996). Plaintiff’s past drug use are among the inconsistencies in the medical records.
She reported to Dr. Bollen that she had used marijuana and ecstacy in the past but not recently.
During her intake at Levi Hospital she said that she used methamphetamine in the past, but had
not done so in three years. A.R. 227.
performed on Plaintiff.46 His review of the MRI found that there was evidence of past brain
damage.47 He noted that the EEG results were mildly abnormal, but “not really that bad.”48
In reviewing the ALJ’s decision, I must determine whether there is substantial evidence
in the administrative record to support the ALJ’s decision.49 The review is limited and the
decision of the ALJ must be affirmed “if the record contains substantial evidence to support it.”50
“Substantial evidence is less than a preponderance but enough so that a reasonable mind could
find it adequate to support the decision.”51 Evidence that both supports and detracts from the
ALJ’s decision must be considered, but the decision cannot be reversed “merely because there
exists substantial evidence supporting a different outcome.”52 “Rather, if, after reviewing the
record, . . . it is possible to draw two inconsistent positions from the evidence and one of those
positions represents the [ALJ’s] findings, we must affirm the decision of the [ALJ].”53 Thus, my
job on review is to determine whether the ALJ’s decision is supported by substantial evidence on
the record as a whole and whether it is based on legal error.54
42 U.S.C. § 405(g).
Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000) (citations and quotations omitted).
Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also, 42 U.S.C. § 405(g).
Plaintiff argues that the ALJ’s decision was not supported by substantial evidence for
three reasons. First, the ALJ failed to perform a function-by-function evaluation in determining
that Plaintiff could work at all levels of exertion. Second, the ALJ did not give proper
consideration to the medical evidence of Plaintiff’s mental impairments. Finally, the ALJ did not
make an explicit finding on the physical and mental demands of Plaintiff’s past relevant work.
To be eligible for disability benefits, a claimant “must establish a physical [or mental]
impairment lasting at least one year that prevents him from engaging in any gainful activity.”55 A
five-step sequential process is used to evaluate claims for disability benefits:56
(1) whether the claimant is currently working; (2) whether the claimant has a severe
impairment; (3) whether the impairment meets or equals an impairment listed in
Appendix 1; (4) whether the impairment prevents the claimant from doing past
relevant work; and finally, (5) whether the impairment prevents the claimant from
doing any other work. When a determination that an individual is or is not disabled
can be made at any step, evaluation under a subsequent step is unnecessary. Only if
the final stage is reached does the fact finder consider the claimant's age, education,
and work experience in light of his or her residual functional capacity.57
If the ALJ determines that the individual is not disabled at any step then evaluation of
subsequent steps is unnecessary.58 Neither side disputes that the ALJ denied benefits at step four,
finding that Plaintiff’s impairment would not prevent her from doing past relevant work.59
Fines v. Apfel, 149 F.3d 893, 894 (8th Cir. 1998). A physical or mental impairment is
“an impariment that results from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”
42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(A).
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Bartlett v. Heckler, 777 F.2d 1318, 1319 (8th Cir. 1985).
Brief of Defendant, Doc. No. 21, p. 4 (citing Barlett, 777 F.2d at 1319).
Plaintiff argues that the ALJ erred by not considering Plaintiff’s physical limitations in a
function-by-function assessment. The ALJ determines the Residual Functional Capacity (“RFC”)
of a claimant using a “function-by-function assessment of that individual’s ability to do work
related activities based on all of the relevant evidence.”60 “[T]he RFC is ultimately a medical
question that must find at least some support in the medical evidence of record.”61 Plaintiff’s
alleged physical impairments, the residual pain caused by her childhood accident and the 2001
accident, were discussed at the hearing and in the ALJ’s decision.62 The ALJ did not determine
that Plaintiff had a severe physical impairment.63 Thus, it was not necessary for the ALJ to make
a function-by-function assessment of Plaintiff’s physical limitations. The ALJ’s findings on
Plaintiff’s physical impairment are supported by substantial evidence on the record. Additionally
the ALJ found that Plaintiff’s complaints of pain were not credible.64
Medical evidence of physical impairment
Plaintiff had numerous fast food jobs after her 1988 and 2001 injuries.65 It is also clear
that her physical impairments did not prevent her from engaging in what can be assumed to be
physically demanding work – exotic dancing66 (I will refrain from making any assumptions
about the physical requirements of Plaintiff’s escort service work, which she described as
Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007).
Id. (citing Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir. 2004)).
A.R. 16, 26-28.
“accompanying gentleman”).67 The medical evidence to support Plaintiff’s complaints of pain is
scant.68 The ALJ noted that Plaintiff saw a physician for swelling in her left ankle in May 2009,
but an MRI showed no abnormal enhancement.69 The neurologist Dr. Pellegrino noted Plaintiff’s
body was asymetrical, but found that she had full muscle strength, a normal gait, no signs of
muscle atrophy, and a full range of motion.70
As noted above the ALJ also found that Plaintiff’s complaints of pain related to her
alleged physical impairment were not credible.71 In Polaski v. Heckler the Eighth Circuit adopted
five factors that the ALJ must use to analyze the credibility of a claimant:72
1. the claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
However, the ALJ need not discuss every factor in relation to the claimant's credibility. I must
“defer to an ALJ's credibility finding as long as the ALJ explicitly discredits a claimant's
testimony and gives a good reason for doing so.”73 It is clear that the ALJ discounted Plaintiff’s
751 F.2d 943, 948 (8th Cir. 1985).
Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (internal citations omitted).
credibility using the Polaski factors.74 The testimony showed that Plaintiff could carry on daily
activities including house work, caring for her children, cooking and driving, despite her alleged
physical impairments.75 The ALJ found that “[t]he performance of these activities is not
inconsistent with the performance of many of the basic activities of work.”76 Additionally, the
ALJ found that in terms of functional restrictions, “[t]he records fail to reveal the type of
significant clinical and laboratory abnormalities one would expect if the claimant were in fact
disabled.”77 Ultimately, the ALJ found that Plaintiff “does have adequate ability to work and the
claimant has overstated her sypmtomatology to some extent.”78 From this it appears that the ALJ
gave a good reason for doubting the credibility of Plaintiff’s subjective complaints. Because
Plaintiff’s physical impairment were found to not be severe, the ALJ did not have to perform a
function-by-function evaluation when determining the RFC for Plaintiff’s physical impairment.
Consideration to the Medical Evidence of Plaintiff’s Mental Impairments
Plaintiff asserts that the ALJ failed to give full consideration to the evidence that
Plaintiff’s mental impairments would make her disabled from working. Plaintiff points to the
statement from Dr. Aukstuolis, who described Plaintiff’s work related mental functions as
“poor/none” on an evaluation form.79 The record contains substantial evidence on Plaintiff’s
A.R. 19-20. I will acknowledge that it appears the ALJ combined the discussion of
physical and mental impairments while discussing the Polaski credibility factors, but it is
possible to reasonably infer which parts of the discussion related solely to the physical
impairments and which related only to the mental impairments. Id.
mental impairment, but Dr. Aukstuolis provided the only evidence indicating that Plaintiff was
disabled because of her mental impairment. Although evidence from treating physicians should
be give significant weight,80 the ALJ is not bound by the opinion of a treating physician if it is
inconsistent with other evidence in the record.81
Defendant has shown that the opinion of Dr. Aukstuolis is inconsistent with other
evidence on the record. Psychologist Dr. Inman, who examined Plaintiff in July 2007, stated that
despite Plaintiff’s poorly organized thought process, she was oriented to time, place and person,
and could give correct information about herself.82 Dr. Inman found that Plaintiff had a fair
ability to think in the abstract, adequate ability to communicate, and intact cognitive abilities.83
Dr. Inman found that Plaintiff’s attention span was impaired to the extent that Plaintiff could not
concentrate for a full work day, but her immediate attention was intact.84 Dr. Imnan also noted
Plaintiff’s mild to moderate difficulty with persistence.85 Plaintiff was examined by Dr. Tanehill
in November 2007, and her report is also inconsistent with Dr. Aukstolis’s opinion.86 Dr.
Tanehill found that Plaintiff had an appropriate affect and unremarkable speech.87 Dr. Tanehill
stated that Plaintiff was alert and oriented.88 Moreover, Dr. Tanehill found that Plaintiff did well
Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001).
on memory testing, Plaintiff responded adequately to assessments of attention and concentration,
and Plaintiff could perform tasks within acceptable time frames.89 Dr. Tanehill also noted that
she did not believe that Plaintiff put forth her best effort during the assessment.90 Aside from the
opinions of two examining psychologist, none of the medical evidence other than Dr. Aukstolis’s
opinion suggests that Plaintiff is disabled.91 Plaintiff’s medical records were reviewed by Dr.
Kay Cogbill, who determined that there was no evidence of severe impairment that would
prevent Plaintiff from doing unskilled work.92 Dr. Cogbill also questioned the truthfulness of
Plaintiff, noting that the records showed many inconsistencies.93
Findings on Physical and Mental Demands of Past Work
Plaintiff argues that the ALJ erred by not making explicit findings on the physical and
mental demands of Plaintiff’s past work, before determining that Plaintiff’s impairments would
not prevent her from resuming past work. The Eighth Circuit has said that the ALJ must “fully
investigate and make explicit findings as to the physical and mental demands of a claimant’s past
relevant work and to compare that with what the claimant herself is capable of doing before he
determines that she is able to perform past relevant work.”94 “Where the claimant has the
residual functional capacity to do either the specific work previously done or the same type of
work as it is generally performed in the national economy, the claimant is found not to be
Nimick v. Secretary of Health and Human Services, 887 F.2d 864, 866 (8th Cir. 1989).
disabled.”95 The ALJ may rely on the testimony of a vocational expert when evaluating the
physical and mental demands of past relevant work and a claimant’s capacity to do that work.96
The ALJ’s RFC was that Plaintiff could perform work where interpersonal contact was
incidental to the work performed, where tasks are learned and performed by rote, involving few
variables and little judgment, with simple, direct and concrete supervision.97 The RFC was
identical to the limitations identified by Dr. Cogbill in her review of the records.98 It also appears
to be supported by substantial evidence in the record. The ALJ asked the vocational expert if a
hypothetical person with Plaintiff’s impairment could perform Plaintiff’s past relevant work with
appropriate restrictions.99 The vocational expert stated a hypothetical person with Plaintiff’s
impairment and restrictions could perform the past relevant work of assembly line worker or fast
food worker.100 The ALJ’s decision explained that “[i]n comparing the claimant’s residual
functional capacity with the physical and mental demands of this work, the undersigned finds
that the claimant is able to perform [assembly line or fast food work] as actually performed.”101 I
find that the ALJ adequately considered the demands of the past relevant work in relation to
Lowe v. Apfel, 226 F.3d 969, 973 (8th Cir. 2000) (emphasis added).
Wagner v. Astrue, 499 F.3d 842, 854 (8 Cir. 2007).
The ALJ’s decision is supported by substantial evidence. Plaintiff’s request to reverse or
remand the ALJ’s decision is DENIED.
IT IS SO ORDERED this 22nd day of April, 2011.
/s/Billy Roy Wilson
UNITED STATES DISTRICT JUDGE
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