Ray v. Social Security Administration

Filing 14

MEMORANDUM AND ORDER affirming the decision of the Commissioner and dismissing plaintiff's complaint with prejudice. Signed by Magistrate Judge Jerome T. Kearney on 8/9/11. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLAINTIFF
SHARON J. RAY
v.

Civil Case No. 4:10CV00724 JTK

MICHAEL J. ASTRUE,
Commissioner, Social
Security Administration

DEFENDANT

MEMORANDUM AND ORDER
Plaintiff, Sharon Ray, brings this action for review of a
final

decision

of

the

Commissioner

of

the

Social

Security

Administration (Commissioner) denying her claim for Supplemental
Security Income (SSI) and Disability Insurance Benefits (DIB). The
only

issue

supports

before
that

the

Court

decision.1

is
After

whether

substantial

carefully

evidence

reviewing

the

administrative record and the arguments of the parties, the Court
finds the Commissioner’s decision should be affirmed and the
Complaint dismissed with prejudice
I.

Procedural History

Plaintiff filed her application for DIB and SSI disability2
1

The parties consented to the jurisdiction of a United
States Magistrate Judge. (DE #9)
2

“Disability” is the “inability to engage in substantial
gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuance
period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A).
A “physical or mental impairment” is “an impairment 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).

benefits on March 20, 2008, alleging March 11, 2008, as the onset
date.

(Tr. 68, 101, 138) The Administrative Law Judge (ALJ) held

a hearing on June 17, 2009, Tr. 29, and issued a written decision
on December 1, 2009, denying benefits.

(Tr. 65-77) The Appeals

Council denied Plaintiff’s request for review on April 30, 2010,
making the ALJ’s determination the Commissioner’s final decision.
(Tr. 2-4) Having exhausted her administrative remedies, Plaintiff
timely requested review in this Court pursuant to 42 U.S.C. §
405(g).

(Complaint, DE #2)
II.

Standard of Review

The Court’s limited function on review is to determine whether
the Commissioner’s decision is supported by substantial evidence on
the record as a whole and free of legal error.

Long v. Chater, 108

F.3d 185, 187 (8th Cir. 1997); see also 42 U.S.C. § 405(g).
Substantial evidence is “less than a preponderance, but enough that
a

reasonable

decision.”

mind

might

accept

it

as

adequate

to

support

a

Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998)

(citing Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997)).
III.

Background

Plaintiff was born on May 11, 1973, received her GED, and
completed one year of college.
work as a line worker.

(Tr. 34-36)

She has past relevant

(Tr. 37-38)
IV.

ALJ’s Findings

The ALJ considered Plaintiff’s impairments by way of the

2

required

five-step

sequential

evaluation

process3

and

found

“severe” obesity, asthma, diabetes mellitus, and mood disorder.
(Tr. 70) The ALJ found that neither impairment, individually or in
combination, met or equaled a medical listing. (Tr. 71)

The ALJ

concluded that Plaintiff’s subjective allegations were not fully
credible and that she maintained the residual functional capacity4
(RFC) to perform sedentary work,5 except that she could not climb
ladders, ropes or scaffolds; should avoid concentrated exposure to

3

“The five-step test is whether the claimant is (1)
currently employed and (2) severely impaired; (3) whether the
impairment [meets] or approximates a listed impairment; (4)
whether the claimant can perform past relevant work; and if not,
(5) whether the claimant can perform any other kind of work.
Through step four of this analysis, the claimant has the burden
of showing that she is disabled. Only after the analysis reaches
step five does the burden shift to the Commissioner to show that
there are other jobs in the economy that a claimant can perform.”
Steed v. Astrue, 524 F.3d 872, 875 n.3 (8th Cir. 2008) (internal
citations omitted).
4

A claimant’s RFC is what he or she can do despite his or
her limitations. 20 C.F.R. §§ 404.1545; 416.945. “RFC is an
assessment of an individual’s ability to do sustained workrelated physical and mental activities in a work setting on a
regular and continuing basis. A ‘regular and continuing basis’
means 8 hours a day, for 5 days a week, or an equivalent work
schedule.” Social Security Ruling (SSR) 96-8p, Titles II and
XVI: Assessing Residual Functional Capacity in Initial Claims, 61
Fed. Reg. 34474, 34475 (1996).
5

Sedentary work. Sedentary work involves lifting no more
than 10 pounds at a time and occasional lifting or carrying
articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out
job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.
20 C.F.R. §§ 404.1567(a); 416.967(a).
3

dust, fumes, gases, odors and poor ventilation; and have only
occasional contact with coworkers and the general public. (Tr. 72)
The ALJ found Plaintiff was not disabled and could perform several
jobs that exist in significant numbers in the national economy,
namely that of inspector, sorter, or cutter/paster.
V.

(Tr. 76)

Discussion

In this appeal, Plaintiff asserts that the ALJ’s decision is
not supported by substantial evidence and is based on the following
legal errors : (1) step two evaluation; (2) failure to consider the
combined effects of her impairments; (3) the credibility of her
subjective complaints; (4) failure to properly address her obesity;
(5) the residual functional capacity (RFC) determination; and (6)
utilization of the vocational expert’s (VE) testimony. (Plaintiff’s
Brief, DE #12, at 15)
1. Step two evaluation
Plaintiff

alleges

disability

due

to

allergies,

asthma,

obesity, sleep apnea, hypertension, gastritis, ulcers, acid reflux,
carpal tunnel syndrome, neural dermatitis, anxiety, and depression.
(Tr. 82, 85, 90, 92, 142) The ALJ found severe obesity, asthma,
diabetes mellitus, and mood disorder.

(Tr. 70)

Plaintiff states

the ALJ erred at step two of the five-step sequential evaluation by
failing to find her GERD, hypertension, sleep apnea, wrist pain,
dermatitis,

high

blood

pressure,

joint

pain,

fatigue,

osteoarthritis, anxiety, fibromyalgia-like symptoms, and pedal

4

edema as severe impairments. (Plaintiff’s Brief, DE #12, at 15-16)
However, no record evidence indicates that they are severe.
An impairment is “severe” if it significantly limits an
individual’s
impairment

ability
is

to

perform

“nonsevere”

basic

when

work

medical

or

activities.
other

An

evidence

establishes only a slight abnormality that would have no more than
a minimal impact on an individual’s ability to work.

See

20 C.F.R. §§ 404.1520(c); 404.1521(a); 416.921(a); 416.924(c).
Here, the ALJ listed these complained-of impairments, along
with Plaintiff’s reported symptoms, Tr. 72-73, and he found, after
consideration
living,

of

medical

the

evidence,

information

including
from

activities

treating,

of

daily

examining

and

consultative physicians, and the results of medical testing, that
none of them were severe. There is substantial evidence to support
that finding. The ALJ’s decision adequately documents the reasons
for these findings, and Plaintiff does not identify any evidence
that the ALJ failed to consider in this regard.
2.

Impairments in Combination
Plaintiff’s second argument is that the ALJ failed to consider

all of her complained-of impairments in combination. This argument
lacks merit.
“Even

an

impairment

that

is

not

severe

by

itself

must

generally be considered in combination with the claimant’s other
impairments,

and

“[i]f

a

medically

5

severe

combination

of

impairments

is

found”

at

step

two,

“it

will

throughout the disability evaluation process.”

be

considered

Retere v. Railroad

Retirement Bd., 465 F.3d 896, 898 (8th Cir. 2006) (quoting 20
C.F.R. § 220.104)6.

“The ALJ must consider the impairments in

combination and not fragmentize them in evaluating their effects.”
Delrosa v. Sullivan, 922 F.2d 480, 484 (8th Cir. 1991).
In determining that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled a listing,
the

ALJ

considered

all

of

the

acknowledged such in the opinion.
3.

claimant’s

impairments

and

(Tr. 71)

Credibility
Plaintiff’s next argument is that the ALJ erred in finding

that her daily activities detracted from the credibility of her
subjective complaints.

Specifically, Plaintiff states the ALJ

relied solely on her report of activities of daily living, Exhibit
5E, and took the evidence out of context.

(Plaintiff’s Brief, DE

#12, at 17)
To assess Plaintiff’s credibility, the ALJ had to consider all
of the evidence, including prior work record and observations by
third parties and treating and examining physicians regarding daily
activities; the duration, frequency, and intensity of the pain;

6

A comparable provision is found in the Social Security
Regulations, see 20 C.F.R. §§ 404.1523, 416.923 (“If we do find a
medically severe combination of impairments, the combined impact
of the impairments will be considered throughout the disability
determination process.”).
6

precipitating and aggravating factors; dosage, effectiveness and
side effects of medication; and functional restrictions.
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).

Polaski

The ALJ may not

discount the claimant’s subjective complaints solely because they
are not fully supported by the objective medical evidence, but the
complaints may be discounted based on inconsistencies in the record
as a whole.

Id.

Further, “an ALJ need not explicitly discuss each Polaski
factor.”

Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005)

(internal quotations and citation omitted).

“An ALJ who rejects

such [subjective] complaints must make an express credibility
determination
complaints.”

explaining

the

reasons

for

discrediting

the

Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).

“The credibility of a claimant’s subjective testimony is primarily
for the ALJ to decide, not the courts.” Pearsall v. Massanari, 274
F.3d 1211, 1218 (8th Cir. 2001).
Here, the ALJ found that Plaintiff’s testimony was credible to
the extent that it was not inconsistent with the RFC.

The ALJ

determined that Plaintiff had several severe physical impairments.
(Tr. 70) As stated by Plaintiff, the ALJ considered Plaintiff’s
daily activities, namely that she has no problems with personal
care, except that she sometimes has difficulty shaving her legs and
that there are times when pain makes using the toilet difficult for
her.

(Tr. 163) She prepares her own meals, mows the yard with a

7

riding mower, cleans the home, shops for food and household items
weekly, has no problem handling money, reads, watches television,
crochets and visits friends, doctor’s offices, and church.
163-166.
the

Id. at

Additionally, the ALJ considered the medical evidence in

record,

including

treating

and

consultative

physician

information and the results of objective medical testing. (Tr. 74)
The Court is satisfied after careful review of the record that the
ALJ’s finding that Plaintiff’s subjective complaints were not fully
credible was adequately explained and supported by the record as a
whole.
4.

Obesity
Plaintiff states the ALJ’s decision did not mention Social

Security Ruling (SSR) 02-01p, and therefore, did not properly
consider her obesity.

This argument must fail.

Plaintiff acknowledges that the ALJ considered her obesity to
be a severe impairment; however, she takes issue with the fact that
he did not explain whether other conditions (sleep apnea, high
blood pressure, joint pain, fatigue) and limitations (sitting,
walking, climbing, stopping, etc.) known to be exacerbated or
affected by obesity caused her any physical or mental limitations.
(Plaintiff’s Brief, DE #12, at 18)
SSR 02-1p requires the Commissioner to consider a claimant’s
claimed obesity when determining whether a claimant is disabled.
However, it does not mandate any special procedure for evaluating

8

obesity.

See Armoster v. Astrue, No. 5:08CV0058 BSM, 2008 WL

5424137, at *4 (E.D. Ark. Dec. 30, 2008).

The ruling merely

reminds adjudicators to consider the effects of obesity, both alone
and in combination with other impairments.

A fair reading of the

ALJ’s opinion reveals that he did just that.

(Tr. 70, 71-72, 74-

75) He found that obesity was a “severe” impairment, Tr. 70,
meaning that alone or in combination with other impairments, it
significantly limited Plaintiff’s physical or mental ability to
perform basic work activities and has “more than a minimal effect
on claimant’s ability to work.”
1392, 1396 (8th Cir. 1989).

See Hudson v. Bowen, 870 F.2d

Based on Plaintiff’s impairments,

including obesity, the ALJ found, and the record supports, that
Plaintiff could perform less than the full range of sedentary work.
Thus, the Court concludes the ALJ properly considered Plaintiff’s
obesity, both under SSR 02-1p and otherwise.
5.

Residual Functional Capacity (RFC)
Plaintiff claims the ALJ erred in his RFC determination by

relying on non-examining physician opinions and by failing to recontact her treating physicians to obtain a comment on her ability
to function in the workplace.

(Plaintiff’s Brief, DE #12, at 19-

22)
“The ALJ should determine a claimant’s RFC based on all
relevant evidence including the medical records, observations of
treating physicians and others, and an individual’s own description

9

of [her] limitations.”

Moore v. Astrue, 572 F.3d 520, 523 (8th

Cir. 2009)(citing Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir.
2006)(quoting Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir.
2004)).

“Because a claimant’s RFC is a medical question, an ALJ’s

assessment of it must be supported by some medical evidence of the
claimant’s ability to function in the workplace.” Moore v. Astrue,
572 F.3d at 523 (citing Steed v. Astrue, 524 F.3d 872, 875 (8th
Cir. 2008)(quoting Cox v. Astrue, 495 F.3d 614, 619 (8th Cir.
2007)).

The ALJ has the role of resolving conflicts among the

opinions of various treating and examining physicians, and may
reject the conclusions of any medical expert, whether hired by the
government or claimant, if they are inconsistent with the record as
a whole.

Pearsall v. Massanari, 274 F.3d at 1219.

Normally, the

opinion of a treating physician is entitled to substantial weight,
but it is not conclusive in determining disability status and must
be supported by medically acceptable clinical or diagnostic data.
Casey v. Astrue, 503 F.3d 687, 691 (8th Cir. 2007).
In this case, the fact that Dr. Banning wrote a letter on
April 3, 2008, “To Whom It May Concern” stating Plaintiff had
“multiple medical conditions” that prevented her from fulfilling
her societal obligation to serve on jury duty did not mandate a
finding of disability, as it did not state Plaintiff was unable to
work.

See Davis v. Barnhart, 197 Fed. Appx. 521, 522 (8th Cir.

2006)(citing Ellis v. Barnhart, 392 F.3d 988, 994-95 (8th Cir.

10

2005)(medical source opinion that applicant is disabled or unable
to work involves issues reserved to Commissioner and is not type of
opinion to which controlling weight should be given); Holstrom v.
Massanari, 270 F.3d 715, 721, (8th Cir. 2001) (treating physician’s
vague and conclusory opinion is not entitled to deference)). Also,
a review of the record indicates the ALJ relied upon all the record
evidence, treating, examining and consultative physicians alike,
and he gave all of the opinions great weight.

(Tr. 74-75)

No

doctor, treating or otherwise, determined Plaintiff could not work.
See Hensley v. Barnhart, 352 F.3d 353, 357 (8th Cir. 2003)(no
functional restrictions on activities is inconsistent with claim of
disability). In fact, treating physician Shelly J. Banning, M.D.,
wrote that Plaintiff would benefit from weight loss surgery and
that she did “not want to see this lovely and intelligent young
woman give up on herself and file for disability.
potential.”

She has too much

(Tr. 244) While Dr. Banning stated Plaintiff was

“fairly disabled at her present weight [326 pounds],” this opinion
came in the form of an unaddressed letter, dated June 17, 2008,
written to urge assistance for Plaintiff in obtaining Medicaid or
some other kind of medical coverage that would allow her to return
to productive employment.

See Ramey v. Reinertson, 268 F.3d 955,

962 (10th Cir. 2001) (whether an applicant meets Social Security
eligibility requirements is “an inquiry that is different from a
state’s Medicaid eligibility requirements.”).

11

Further, the ALJ was not required to re-contact Plaintiff’s
treating physicians. The duty to re-contact a medical source is
triggered when the evidence is insufficient to make an informed
determination-not when the evidence is insufficient to make a
favorable determination.

Pearson v. Barnhart, No. 1:04CV300, 2005

WL 1397049, at *4 (E.D. Tex. May 23, 2005). Under the regulations,
“[t]he ALJ is required to recontact medical sources ... only if the
available

evidence

does

not

provide

an

adequate

determining the merits of the disability claim.”

basis

for

Sultan v.

Barnhart, 368 F.3d 857, 863 (8th Cir. 2004)(citation omitted). The
ALJ is not required to seek additional clarifying statements from
a treating physician unless a crucial issue is undeveloped.

Goff

v. Barnhart, 421 F.3d at 791. In this case, the available evidence
in the record provides an adequate basis for determining the merits
of the disability claim.
6.

Vocational Expert (VE) testimony
Plaintiff’s final argument is that the ALJ erred at step five.

Specifically, Plaintiff states the ALJ’s hypothetical question to
the VE during the hearing is “slightly different” than the RFC the
ALJ assessed in his decision.7

Plaintiff states the ALJ failed to

7

The ALJ’s RFC states Plaintiff can respond appropriately to
supervisors and can have occasional contact with co-workers and
the general public. During the hearing, the ALJ asked the VE to
assume an individual who could “respond appropriately to
supervisors and co-workers in usual work settings, but [could]
only have occasional contact with the general public.” (Tr. 5657, 72)
12

ask the VE how or if the jobs listed would be affected if she could
have only occasional contact with co-workers.
DE #12, at 23)

(Plaintiff’s Brief,

Plaintiff also argues there is no evidence that the

numerosity requirement was satisfied or that the ALJ adequately
considered whether the jobs he listed existed in significant
numbers.

Id. at 23-24.

These arguments lack merit.

“In our circuit, it is well settled law that once a claimant
demonstrates that he or she is unable to do past relevant work, the
burden of proof shifts to the Commissioner to prove, first that the
claimant retains the [RFC] to do other kinds of work, and, second
that other work exists in substantial numbers in the national
economy that the claimant is able to do.”

Nevland v. Apfel, 204

F.3d 853, 857 (8th Cir. 2000) (citing McCoy v. Schweiker, 683 F.2d
1138, 1146-47 (8th Cir. 1982)(en banc); O’Leary v. Schweiker, 710
F.2d 1334, 1338 (8th Cir. 1983)).
Plaintiff has failed to articulate how, if at all, this
“slight difference” affects the decision. In the hypothetical, the
ALJ

asked

the

VE

to

assume

an

individual

who

could

respond

appropriately to supervisors and co-workers in usual work settings,
but in his RFC, he found Plaintiff could respond appropriately to
supervisors but have only occasional contact with co-workers.
Plaintiff testified at the hearing that she is claustrophobic and
“can’t stand anybody close up on top of me.”

(Tr. 42) She stated,

however, that on a day-to-day basis, she did not have problems

13

getting along with co-workers.

(Tr. 48) “A hypothetical question

posed to the vocational expert is sufficient if it sets forth
impairments supported by substantial evidence in the record and
accepted as true.”

Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir.

2001).
Social Security Ruling 85-15 describes “unskilled work” as
work that ordinarily involves dealing with objects, rather than
with data or people.

Accordingly,“unskilled work” incorporates a

limitation regarding interpersonal contact, and the VE deemed the
jobs of cutter/paster of press clippings, inspector, and sorter as
unskilled work. (Tr. 57-58)
Additionally, “[t]o decide whether work exists in significant
numbers, this Court has adopted the standards set forth in Hall v.
Bowen, 837 F.2d 272, 275 (6th Cir. 1988).”
F.3d 178, 180 (8th Cir. 1997).

Johnson v. Chater, 108

“After discussing certain factors

that a judge might consider in making this determination, such as
the reliability of the claimant’s and the vocational expert’s
testimony, the Hall court stated that ‘[t]he decision should
ultimately be left to the trial judge’s common sense in weighing
the statutory language as applied to a particular claimant’s
factual situation.’” Id. (citing Jenkins v. Bowen, 861 F.2d 1083,
1087 (8th Cir. 1988)(quoting Hall v. Bowen, 837 F.2d at 275)).
Here, the Commissioner met the burden of showing Plaintiff was
not disabled because the VE’s testimony was sufficient to show that

14

there are jobs available in the economy that she could perform.
There were 31,000 cutter paster jobs in the national economy and
235 in Arkansas; 3,300 inspector jobs in the national economy and
300 in Arkansas; and 1,100 sorter jobs in the national economy and
150 in Arkansas.

(Tr. 57-58) See Johnson v. Chater, 108 F.3d 178,

180 & n.3 (8th Cir. 1997).
VI.

Conclusion

The Court has carefully reviewed the record and finds the
Commissioner’s decision to be supported by substantial evidence and
free of significant legal error.
THEREFORE, the Court hereby affirms the Commissioner’s final
determination and dismisses Plaintiff’s Complaint with prejudice.
SO ORDERED this 9th day of August, 2011.

________________________________
UNITED STATES MAGISTRATE JUDGE

15