Jones v. Social Security Administration

Filing 18

OPINION AND ORDER denying pltf's request for relief and affirming the Commissioner's decision. Signed by Judge Kristine G. Baker on 3/27/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
MICHAEL ANTHONY JONES
v.

PLAINTIFF

No. 4:11CV00705 KGB-JTK

CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration

DEFENDANT
OPINION AND ORDER

Plaintiff-claimant Michael Anthony Jones appeals the final decision of defendant
Commissioner of the Social Security Administration 1 to deny his applications for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423
(the “Act”), and Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. §
1382. Mr. Jones asks this Court to reverse the Commissioner’s decision and remand his case to
the Social Security Administration (“SSA”) for the award of benefits.

Both parties have

submitted appeal briefs. After considering the record, the arguments of the parties, and the
applicable law, this Court affirms the Commissioner’s decision.
I.

Standard of Judicial Review

When reviewing a decision denying an application for disability benefits, the Court must
determine whether substantial evidence supports the Commissioner’s decision and whether the
Commissioner made a legal error.

See 42 U.S.C. § 405(g) (requiring the district court to

determine whether the Commissioner’s findings are supported by substantial evidence and
whether the Commissioner conformed with applicable regulations); Slusser v. Astrue, 557 F.3d
923, 925 (8th Cir. 2009) (stating that the court’s “review of the Commissioner’s denial of benefits

1

Carolyn W. Colvin was sworn in as Acting Commissioner of the Social Security Administration
on February 14, 2013, replacing Michael J. Astrue. She has therefore been substituted as the defendant in
this case pursuant to Fed. R. Civ. P. 25(d).

is limited to whether the decision is supported by substantial evidence in the record as a whole”
(internal quotation marks omitted)); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We will
uphold the Commissioner’s decision to deny an applicant disability benefits if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to support the
conclusion that the claimant was not disabled.”). Substantial evidence is more than a mere
scintilla of evidence; it means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Slusser, 557 F.3d at 925. In determining whether substantial
evidence supports the Commissioner’s decision, the Court must consider evidence that detracts
from the Commissioner’s decision as well as evidence that supports the decision, but the Court
may not reverse the Commissioner’s decision simply because substantial evidence supports a
contrary decision. See Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004); Woolf v. Shalala, 3
F.3d 1210, 1213 (8th Cir. 1993). The Court may not reweigh the evidence or try the issues de
novo. Harris v. Shalala, 45 F.3d 1190 (8th Cir. 1995).
II.

The Disputed Issues

In this case, the parties do not dispute that Mr. Jones exhausted his administrative
remedies. See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating that “the Social
Security Act precludes general federal subject matter jurisdiction until administrative remedies
have been exhausted” and explaining that the Commissioner=s appeal procedure permits claimants
to appeal only final decisions). Mr. Jones contends that the Administrative Law Judge (“ALJ”)
erred in the following ways: (1) Mr. Jones contends that the ALJ incorrectly found that Mr.
Jones’s non-substance-abuse-induced adjustment disorder, antisocial personality traits,
fibromyalgia, arthritis (other than his left hip), anger control problems, and problems thinking

2

clearly were not severe impairments; (2) Mr. Jones contends that the ALJ erred in determining that
Mr. Jones’s impairments did not meet or medically equal a Listing in Appendix 1 of Subpart P, 20
C.F.R. § 404.1520(d); (3) Mr. Jones claims the ALJ erred in determining that Mr. Jones’s
subjective complaints were not entirely credible; and (4) Mr. Jones maintains the ALJ erred in
determining that Mr. Jones had the residual functional capacity (“RFC”) to perform the full range
of sedentary work.
III.

The Commissioner’s Decision

The ALJ denied benefits at step five of the analysis, finding that, if Mr. Jones stopped his
substance abuse, he would not be disabled because he had acquired work skills from his past
relevant work that were transferable to other occupations with jobs existing in significant numbers
in the national economy (Tr. 23).
The ALJ noted that, if a claimant is under a disability and if there is medical evidence of a
substance abuse disorder, there is an issue as to whether the substance abuse disorder is a
contributing factor material to the determination of disability under section 223(d)(2) and
1614(a)(3)(j) of the Act (Tr. 11).2 The ALJ determined that Mr. Jones was last insured for
disability insurance benefits on December 31, 2004 (Tr. 14, 36, 205).3 The ALJ found that Mr.
Jones’s degenerative joint disease of the left hip (status-post hip replacement), hepatitis C,
polysubstance abuse disorder, and substance-abuse-induced mood disorder were severe
impairments (Tr. 14). The ALJ specifically found that Mr. Jones’s non-substance-abuse-induced

2

Public Law 104-121, effective March 29, 1996, prohibits disability entitlement for individuals
whose alcohol or drug abuse is a contributing factor material to a finding of disability. See 42 U.S.C. §
423(d)(2)(C); 20 C.F.R. §§ 404.1535(a), 416.935(a).
3
For Mr. Jones to establish entitlement to disability insurance benefits, he must establish that he
became disabled on or before December 31, 2004. See 20 C.F.R. §§ 404.131, 404.315(a)(1); see also Cox
v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). 

3

adjustment disorder, antisocial personality traits, fibromyalgia, arthritis (other than his left hip),
anger control problems, and problems thinking clearly were not severe impairments (Tr. 14). The
ALJ then engaged in the five-step sequential evaluation process for determining whether a person
is disabled. See 20 C.F.R. § 404.1520. The ALJ made two sets of findings concerning the other
issues remaining in the sequential evaluation process, one which included Mr. Jones’s substance
abuse and one that did not (Tr. 14-24).
A.

Findings that Included Substance Abuse

The ALJ determined that Mr. Jones did not have an impairment or combination of
impairments that met or medically equaled a listed impairment (Tr. 14). The ALJ considered
Listings 1.20, 5.05, 12.04, and 12.09 (Tr. 14). Specifically, in determining whether Mr. Jones’s
mental disorders, including his substance use, met listings 12.04 and 12.09, the ALJ determined
that Mr. Jones had only mild restrictions in daily living; mild difficulties in social functioning;
moderate difficulties in concentration, persistence, or pace when under the influence of drugs; and
one or two episodes of decompensation (Tr. 14-15). The ALJ determined that Mr. Jones had the
RFC to perform a limited range of unskilled, sedentary work, as defined in 20 C.F.R. §§
404.1567(a) and 416.967(a) (Tr. 15).

Specifically, the ALJ found that Mr. Jones could

occasionally lift or carry ten pounds; stand and/or walk two hours in an eight-hour workday; sit for
six hours in an eight-hour workday; and push or pull ten pounds occasionally and less than ten
pounds frequently (Tr. 15). Mentally, including Mr. Jones’s substance abuse disorders, the ALJ
found that Mr. Jones could understand, remember, and carry out simple job instructions; make
judgments in simple work-related situations; respond appropriately to co-workers and supervisors
with only incidental contact that is not necessary to perform the work; and respond appropriately to
minor changes in the usual work routine (Tr. 15). The ALJ found that Mr. Jones was unable to

4

perform his past relevant work as a registered nurse, in part because although his past work of
registered nursing is a skilled job typically performed at the medium exertional level, Mr. Jones
had performed it at the heavy exertional level (Tr. 15).
The ALJ found that Mr. Jones’s job skills did not transfer to other occupations within his
RFC caused by his substance use disorders (Tr. 16). The ALJ noted that since Mr. Jones’s alleged
onset date, he had been classified as (1) a younger person, age 18 to 44, (2) a younger person, age
45-49, and (3) a person of advanced age (age 50-54) (Tr. 15-16).
After Attaining Age 50
The ALJ determined that, considering all of Mr. Jones’s impairments, including his
substance use disorders, Mr. Jones would be disabled after he attained age 50 by direct application
of Medical-Vocational Rule 201.14 (Tr. 16).
From Age 45 Through Age 49
The ALJ determined that from age 45 through age 49, Mr. Jones’s mental impairments
including his substance abuse would not significantly affect his ability to perform unskilled,
sedentary work (Tr. 16-17). An ALJ may use the grids even though there is a nonexertional
impairment, if the ALJ finds, and the record supports the finding, that the nonexertional
impairment does not diminish the claimant’s RFC to perform the full range of activities listed in
the grids. McGeorge v. Barnhart, 321 F.3d 766, 768-69 (8th Cir. 2003); Thompson v. Bowen, 850
F.2d 346, 349-50 (8th Cir. 1988). The introduction to the grid rules for sedentary work states that
approximately 200 separate unskilled sedentary occupations can be identified, each representing
numerous jobs in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(a).
Therefore, using Rule 201.21 of the Medical-Vocational Guidelines (the grids) as a framework,
the ALJ determined that Mr. Jones would not be disabled. See 20 C.F.R. Pt. 404, Subpt. P, App.

5

2, Table 1, § 201.21.
From Age 41 Through Age 44
Again, the ALJ determined that from age 41 through age 44, Mr. Jones’s mental
impairments including his substance abuse would not significantly affect his ability to perform
unskilled, sedentary work (Tr. 17). Therefore, using Rule 201.28 of the grids as a framework, the
ALJ determined that Mr. Jones would not be disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2,
Table 1, § 201.28.
B.

The ALJ’s Findings That Did Not Include Substance Abuse

The ALJ made the following findings that would apply if Mr. Jones stopped his substance
abuse (Tr. 17-23). The ALJ determined that, if Mr. Jones stopped his substance abuse, his hip
disorder and hepatitis C would continue to limit him to sedentary work (Tr. 17). The ALJ
determined that, if Mr. Jones stopped his substance abuse, Mr. Jones would not have a severe
mental impairment because he would have only (1) mild limitation in activities of daily living; (2)
mild limitation in social functioning; (3) mild limitation in concentration, persistence, or pace; and
(4) no episodes of decompensation (Tr. 17-18).

If the Commissioner rates these areas of

functioning as “none” or “mild,” then the mental impairment qualifies as nonsevere. See 20
C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1).
At step three, the ALJ determined that Mr. Jones would not have an impairment or
combination of impairments that met or medically equaled a listed impairment (Tr. 18).
Additionally, the ALJ found that, if Mr. Jones stopped his substance abuse, he would have the RFC
to perform a full range of sedentary work (Tr. 18). The ALJ determined that, absent his substance
abuse disorders, Mr. Jones would have no mental conditions that would cause more than a minimal
effect on his ability to do basic work-related activities (Tr. 18). In comparison, the ALJ had

6

determined that, with substance abuse, Mr. Jones’s mental limitations would reduce his skill level
to unskilled work (Tr. 15-17).
When the ALJ considered whether Mr. Jones’s impairments without substance abuse
would cause more than a minimal effect on his ability to do basic work-related activities, the ALJ
evaluated the credibility of Mr. Jones’s subjective complaints (Tr. 18-22). Specifically, the ALJ
found that without substance abuse, Mr. Jones’s subjective complaints were not credible to the
extent they were inconsistent with the ALJ’s RFC determination (Tr. 18-19). In other words, the
ALJ concluded that, without substance abuse, Mr. Jones’s impairments did not prevent him from
performing skilled or semi-skilled sedentary work (Tr. 18). At step four of the sequential
evaluation process, the ALJ determined that even if Mr. Jones stopped his substance abuse, he
would continue to be unable to perform his past relevant work as a registered nurse because,
although that job was typically performed at the medium exertional level, Mr. Jones actually
performed it at the heavy exertional level (Tr. 22-23). However, after considering testimony from
a vocational expert (“VE”), the ALJ determined that, if Mr. Jones stopped his substance use, he
had acquired work skills from his past relevant work that were transferable to other occupations
with jobs existing in significant numbers in the national economy (Tr. 23, 57). Therefore, the
ALJ determined that, if Mr. Jones stopped his substance use, he would not be disabled at any time
from his alleged onset date through the date of the ALJ’s decision (Tr. 23-24).
IV.

Analysis

Mr. Jones has a 4-year college degree in nursing (Tr. 37, 216). He has past work
experience as a registered nurse (Tr. 15, 56). In his application documents, Mr. Jones alleged that
he became disabled on April 21, 2000, due to mental issues, problems controlling anger,
depression, problems thinking clearly, fibromyalgia, and arthritis (Tr. 11, 146, 153, 210). The

7

ALJ made a determination that Mr. Jones had not engaged in substantial gainful activity since
April 21, 2000 (Tr. 14). Mr. Jones was 41 years old on his alleged onset date and 52 years old
when the ALJ issued his decision (Tr. 15-16, 37, 146, 153).
The Court concludes: (1) substantial evidence supports the ALJ’s analysis of Mr. Jones’s
severe impairments; (2) substantial evidence supports the ALJ’s analysis that Mr. Jones’s
impairments did not meet or medically equal the requirements of a listing; (3) substantial evidence
supports the ALJ’s credibility determination; and (4) substantial evidence supports the ALJ’s RFC
determinations. Moreover, the ALJ made no legal errors when reaching his decisions on these
issues.
(1)

The ALJ’s Determination Regarding Mr. Jones’s Severe Impairments

The second step of the review process requires the ALJ to determine the severity of Mr.
Jones’s alleged impairment or combination of impairments and to determine specifically whether
a severe impairment or combination of impairments significantly limits Mr. Jones’s physical or
mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). The Court concludes that
substantial evidence supports the ALJ’s determination that Mr. Jones’s substance-abuse-induced
mental impairments were severe, but his non-substance-abuse-induced mental impairments were
not (Tr. 14).
The ALJ noted that Mr. Jones had a long and significant history of polysubstance abuse,
with indications of an associated substance-induced mood disorder (Tr. 19). The evidence,
including Mr. Jones’s own testimony, showed that Mr. Jones used intravenous (IV) drugs until
2002 and abused methamphetamine until February 2009 (Tr. 19, 41, 45). The ALJ also noted that
Mr. Jones had abused alcohol as late as March 2009 and had abused prescription pain medications
in the past (Tr. 19). This Court notes that the Commissioner highlights in his response brief that

8

there is some evidence in the record that calls into question when Mr. Jones’s alcohol and illegal
drug use ended (Dkt. No. 17, at 9-10).
The ALJ observed that Mr. Jones had been in rehabilitation five times as reported to
Kenneth Hobby, Ph.D., a psychologist who performed a consultative mental status examination
and evaluation of adaptive functioning, and the ALJ reasoned that the evidence showed that Mr.
Jones’s mental symptoms were substance induced (Tr. 19, 606). Mr. Jones had received little
mental health treatment other than rehabilitation for drugs and alcohol (Tr. 19). Further, the ALJ
observed that Mr. Jones’s longitudinal mental health treatment history showed that episodes of
symptom exacerbation had been closely linked to substance abuse, and that his severe symptoms
had largely abated when he ceased abusing drugs and alcohol (Tr. 19) (referring to Exhibit 5F (Tr.
509-553), and 6F (Tr. 554-602)).
Specific records in evidence demonstrate that Mr. Jones’s treatment ended more than one
time because of his non-compliance (Tr. 741-42; 720-21; 705-06). A claimant’s failure to follow
a recommended course of treatment weighs against his credibility. Bradley v. Astrue, 528 F.3d
1113, 1115 (8th Cir. 2008). The ALJ observed that Mr. Jones received little mental health
treatment other than rehabilitation for drugs and alcohol (Tr. 19). The ALJ cited in his decision
Exhibit 5F and 6F, among others. Exhibit 5F contains records from Baptist Health Medical
Center, which show inpatient treatment for Mr. Jones from October 26, 2001, until October 29,
2001, for (1) alcohol dependence and withdrawal and (2) methamphetamine dependence,
substance remission (Tr. 532-51). Exhibit 5F also contains Mr. Jones’s March 2009 inpatient
treatment records, in which he admitted using methamphetamine and had a positive drug screen
(Tr. 509, 512, 515). Exhibit 6F contains records from Health Resources of Arkansas, which dealt
primarily with Mr. Jones’s drug and alcohol problems and other mental health difficulties from

9

August 2005 through May 2009 (Tr. 554-602). Exhibit 23F, also from Health Resources of
Arkansas, contains mostly duplicates of Exhibit 6F, with some additional records (Tr. 704-77).
The ALJ also referred to Dr. Hobby’s May 2009 findings in support of his decision that Mr.
Jones’s non-substance-abuse-induced adjustment disorder and antisocial personality traits,
including alleged anger problems and problems thinking clearly, were not severe mental
impairments (Tr. 14, 19, 603-14). As the ALJ noted, Mr. Jones told Dr. Hobby that he needed no
help with personal care, and he could prepare his own meals, cooperate with medical advice, take
his medications without help, and autonomously perform daily household chores (Tr. 19, 605).
Mr. Jones also reported that he could drive on unfamiliar routes; shop adequately for groceries,
clothing, and personal items; use a checkbook with no problems to pay bills; and use cash for
purchases (Tr. 19, 611). Dr. Hobby reported that Mr. Jones was well groomed and appeared to
pay attention to his appearance (Tr. 20, 606-07). In addition, Dr. Hobby stated that Mr. Jones’s
emotional control was good, and his mood and affect were appropriate (Tr. 20, 607). Dr. Hobby
observed no significant limitations in Mr. Jones’s speech or language and no problems in Mr.
Jones’s thought process or thought content (Tr. 20, 607-08). Moreover, the ALJ pointed out that
Dr. Hobby estimated Mr. Jones’s intellectual functioning at a normal level (Tr. 20, 609).
Mr. Jones reported to Dr. Hobby that he got along “pretty well” with his parents and got
along “well” with his siblings (Tr. 20, 611).

In fact, Dr. Hobby observed no significant

limitations in Mr. Jones’s capacity to communicate and interact in a socially adequate manner (Tr.
20, 611). Dr. Hobby’s report showed that Mr. Jones denied suicidal or homicidal thoughts, did
not claim any auditory or visual limitations, was oriented in all spheres, and had good contact with
reality (Tr. 20, 608). Dr. Hobby stated that Mr. Jones had the ability to understand, carry out, and
remember basic work-like tasks and he would probably respond adequately to work pressure in a

10

work-like setting (Tr. 20, 612).
The ALJ further noted that, as a result of this July 2009 examination, Dr. Hobby concluded
that Mr. Jones’s “mood symptoms could [have] been induced by substance use” (Tr. 20, 610)
(emphasis added by ALJ). Dr. Hobby diagnosed adjustment disorder with depressed mood;
polysubstance dependence, currently in remission by his report; and antisocial personality traits
(Tr. 20, 601). Dr. Hobby assigned Mr. Jones a current Global Assessment of Functioning
(“GAF”) score of 51-60 and a highest GAF score in the previous year of 61-70 (Tr. 20, 610). The
ALJ noted that these GAF scores represented only mild to moderate symptoms (Tr. 20, 610).
Based on this, the Court concludes that substantial evidence supports the ALJ’s
determination that, if Mr. Jones stopped his substance use, he would have only mild limitation in
activities of daily living; mild limitation in social functioning; mild limitation in concentration,
persistence, or pace; and no episodes of decompensation (Tr. 17-18).
Mr. Jones contends that the ALJ should have found that his non-substance abuse induced
adjustment disorder, antisocial personality traits, including anger problems, and problems thinking
clearly were severe impairments (Tr. 14); (Dkt. No. 15, at 4). In support of this, Mr. Jones claims
that while his substance abuse was in remission, he continued to have a GAF score below
“acceptable” limits (Dkt. No. 15, at 4). The Court finds this argument unpersuasive.
A GAF score can be a useful tool because it serves as shorthand for a provider’s overall
impression of an individual’s ability to function. See Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition (“DSM IV”) 27-37 (4th ed. Text revision 2000) (defining GAF
scale). The inability “to keep a job” is associated with GAF scores of between 41 and 50, and the
inability to work at all is a possible element of GAF scores between 31 and 40. Id. The
Commissioner, however, has declined to endorse GAF scores in disability analysis and instead

11

conclusively determined that GAF scores have no “direct correlation” to disability adjudication
under the regulations. See 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000); see Jones v. Astrue,
619 F.3d 963, 973-74 (8th Cir. 2010). The Eighth Circuit has held that a GAF score between 51
and 60 does not even signify a severe impairment under the regulations. See Goff v. Barnhart,
421 F.3d 785, 793 (8th Cir. 2005). The Eighth Circuit also has acknowledged that prior caselaw
placing greater weight upon GAF scores failed to acknowledge the Commissioner’s statement in
65 Fed. Reg. 50746. See Jones, 619 F.3d at 973-74, n.4.
Mr. Jones cites Brueggemann v. Barnhart, 348 F.3d 689 (8th Cir. 2003), in support of his
claims regarding his GAF scores. Mr. Jones also contends that he had several documented GAF
scores below 50, citing scores on March 18, 2009, April 1, 2009, May 12, 2009, and June 2, 2009
(Dkt. No. 15, at 4). Unlike Brueggmann, who required in-patient hospitalization on several
occasions even when sober, id. at 695, Mr. Jones’s only inpatient hospitalization for mental
impairments were for alcohol or drug abuse or dependence (Tr. 532-51; 524; 509-23). Record
evidence also indicates that Mr. Jones’s GAF scores have been lower in the range of 20 to 30
during periods when he is using alcohol or illegal drugs than when he is not (Tr. 509; 524; 532).
During the period Mr. Jones stated he was maintaining sobriety, record evidence indicates GAF
scores between 55 and 60 (Tr. 589, 595, 756, 762; 588, 753, 755; 583, 750). These records
constitute substantial evidence supporting the ALJ’s finding that, if Mr. Jones were to stop his
substance abuse, he would have only mild symptoms and his mental impairments would not be
severe (Tr. 17-18).
Moreover, Dr. Hobby performed his consultative examination during the time period Mr.
Jones indicates he received GAF scores below 50. Dr. Hobby assigned Mr. Jones a GAF score of
51-60 and a highest GAF score in the previous year of 61-70 (Tr. 20, 610). There also is

12

conflicting information in the record regarding whether Mr. Jones was in remission during the
period of March 18, 2009, through June 9, 2009, as he claims (Tr. 45). Although there are
differences in the GAF scores between Health Resources of Arkansas and Dr. Hobby, these
differences do not dictate this Court’s rejecting the ALJ’s findings. See Sultan, 368 F.3d at 863.
Substantial evidence supports the ALJ’s findings regarding Mr. Jones’s mental limitations,
and the ALJ made no legal error in reaching his decision that Mr. Jones’s substance-abuse-induced
mental impairments were severe but that his non-substance-abuse-induced mental impairments
were not (Tr. 14).
(2)

The ALJ’s Determination Regarding Impairments

At the third step of the review process, to determine whether a claimant is disabled, the
ALJ is required to determine if the impairments meet or equal a listed impairment in Appendix 1 of
Subpart P, 20 C.F.R. 404.1520(d). Mr. Jones contends that the ALJ erred when he concluded that
Mr. Jones did not have an impairment or combination of impairments that met or medically
equaled a listed impairment (Tr. 14-15). Mr. Jones argues that, since the ALJ did not address all
of the severe impairments in step two, the ALJ could not properly evaluate the combined effect of
the impairments in step three of the process (Dkt. No. 15, at 4-5). This Court concludes that
substantial evidence supports the ALJ’s findings at step two and that the ALJ made no legal error
in reaching his decision at step two. Therefore, the Court rejects Mr. Jones’s challenge at step
three. Substantial evidence supports the ALJ’s determination that Mr. Jones’s impairments did
not meet or medically equal the requirements of a listing, and the ALJ made no legal error when
reaching his decision at this stage.
(3)

The ALJ’s Credibility Determination

The fifth and final step of the review process requires the ALJ to determine if the claimant

13

can work based upon his RFC, age, education, and past work experience.

20 C.F.R. §

404.1520(f). In assessing the RFC of a claimant, the ALJ must examine the limitations on the
physical and mental abilities caused by the impairments and any related symptoms, such as pain.
20 C.F.R. § 404.1545. Mr. Jones maintains that the ALJ erred at step five of his analysis when he
determined that there were jobs that exist in the economy that Mr. Jones could perform prior to
reaching the age of 50 and that Mr. Jones was not disabled (Tr. 16-17). Mr. Jones disagrees with
the ALJ’s findings and contends that the ALJ erred in failing to consider all of the evidence
presented when assessing Mr. Jones’s credibility.
In evaluating a claimant’s credibility, the adjudicator should consider such matters as (1)
the claimant’s daily activities; (2) the duration, frequency, and intensity of the claimant’s pain and
other symptoms; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side
effects of medication; and (5) functional restrictions. Polaski v. Heckler, 751 F.2d 943, 948 (8th
Cir. 1984). While an ALJ must consider these factors, the ALJ’s decision need not include a
discussion of how every Polaski factor relates to the claimant’s credibility. Casey v. Astrue, 503
F.3d 687, 696 (8th Cir. 2007).
Mr. Jones contends that, while the ALJ discussed some of the medical evidence, the ALJ
did not adequately explain why the medical evidence was inconsistent with Mr. Jones’s allegations
of pain (Dkt. No. 15, at 7). Mr. Jones claims that instead the ALJ merely stated that Mr. Jones’s
physical symptoms were not credible to the extent they were inconsistent with the RFC (Tr. 19).
An ALJ may not discredit a claimant’s subjective allegations of pain, discomfort or other
disabling limitations simply because there is a lack of objective evidence; instead the ALJ may
only discredit subjective complaints if they are inconsistent with the record as a whole. Hinchey
v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994); Bishop v. Sullivan, 900 F.2d 1259, 1262 (8th Cir.

14

1990) (citing Polanski, 739 F.2d at 1322).
This Court concludes that the ALJ provided a proper evaluation of Mr. Jones’s pain (Tr.
18-22). He made specific findings explaining his conclusion. See Baker v. Secretary of Health
and Human Services, 955 F.2d 552, 555 (8th Cir. 1992). The ALJ considered Mr. Jones’s
testimony; he incorporated into his RFC determinations the limitations the evidence supported (Tr.
15, 18). The ALJ properly evaluated Mr. Jones’s subjective complaints and found that Mr.
Jones’s subjective complaints were not credible to the extent they were inconsistent with his RFC
determination (Tr. 19).
Specifically, the ALJ noted Mr. Jones alleged disability due to hepatitis C, which he
contracted from a needle stick at St. Vincent’s Hospital in 1994 (Tr. 20, 603). When evaluating
this, the ALJ also noted that Mr. Jones had a history of IV drug abuse (Tr. 20). Mr. Jones’s
treatment records showed a formal diagnosis of hepatitis C at least as early as 2003 (Tr. 20, 492,
494). The ALJ referred to a statement from Eleanor A. Lipsmeyer, M.D., who stated that she had
examined Mr. Jones in December 2003 (Tr. 20, 494). The ALJ reviewed the medical evidence in
the record and reasoned that, since December 2003, Mr. Jones has undergone only minimal
follow-up treatment for hepatitis C, he has taken over the counter NSAIDs for pain, and record
evidence indicates that diagnostic laboratory results have not necessitated acute treatment for
hepatitis C (Tr. 20). The ALJ also noted that Mr. Jones had alleged that his hepatitis C had caused
episodes of flu-like symptoms, fatigue, malaise, and arthralgia to the degree that he cannot work
(Tr. 20, 40-41).

The ALJ observed that Mr. Jones was using IV drugs until 2002 and

methamphetamine as recently as February 2009, which undermines Mr. Jones’s credibility when
asserting that his symptoms were primarily due to hepatitis C (Tr. 20, 41).
As for Mr. Jones’s hip pain, the ALJ also noted that Mr. Jones alleged that he was disabled

15

because of left hip problems (Tr. 21). The ALJ acknowledged that Mr. Jones did experience
ongoing left hip pain and was ultimately diagnosed with left hip degenerative joint disease (Tr. 21,
334). On August 5, 2010, Mr. Jones underwent a left total hip arthroplasty (Tr. 21, 684, 87).
Record evidence indicates that the procedure was uneventful and that Mr. Jones tolerated it well
(Tr. 21, 686). The ALJ noted the evidence indicated that this surgery was effective, and overall
there was no persuasive evidence that indicated Mr. Jones’s left hip precludes him from
performing sedentary work (Tr. 21). Although Mr. Jones now claims in his brief that he
experienced significant hip pain both before surgery and during his post-surgery recovery period,
he cites no page in the transcript to support his argument (Dkt. No. 15, at 11).
The ALJ discussed other specific credibility factors as set out by SSR 96-7p and Polaski
(Tr. 21-22). He determined the medical findings that were present were not consistent with the
disabling level of symptoms Mr. Jones alleged (Tr. 21). The ALJ recognized that he could not
disregard Mr. Jones’s allegations solely on this basis, but this was a factor he could consider (Tr.
21). The lack of supporting medical evidence is one factor an ALJ may consider in evaluating the
credibility of a claimant’s complaints. Ford v. Astrue, 518 F.3d 979, 982 (8th Cir. 2008). The
ALJ also stated that, when he limited Mr. Jones to sedentary work, he gave due consideration to
the fact that Mr. Jones might have some level of discomfort and limitation (Tr. 22).
With regard to aggravating factors and functional limitations, the ALJ considered Mr.
Jones’s allegations that he was almost wholly incapacitated by his conditions (Tr. 22). The ALJ
concluded that none of Mr. Jones’s physicians had placed this level of limitation on Mr. Jones and
that there were no clinical findings in the record that corroborated this claim of extreme limitation
(Tr. 22). See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007); Pelkey v. Barnhart, 433 F.3d
575, 578 (8th Cir. 2006).

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The ALJ reasoned that Mr. Jones’s activities of daily living were inconsistent with Mr.
Jones’s alleged level of limitation (Tr. 22). In support of this determination, the ALJ cited Mr.
Jones’s testimony and his comments to Dr. Hobby regarding his activities (Tr. 22, 611). An ALJ
may consider a claimant’s “extensive daily activities.” Moore v. Astrue, 572 F.3d 520, 524-25
(8th Cir. 2009); Wagner v. Astrue, 499 F.3d 842, 852 (8th Cir. 2007). The ALJ also noted that the
medical evidence does not indicate Mr. Jones has sought out or had aggressive medical treatment
or further surgical intervention for disabling pain, sought out emergency or other treatment at a
frequency commensurate with the amount of severe pain alleged, or been prescribed extensive
pain medication (Tr. 22).
The ALJ considered the opinions of the state agency medical consultants, pursuant to SSR
96-6p (Tr. 22). Findings of fact made by state agency medical consultants regarding the nature
and severity of an individual’s impairments must be treated as expert opinion evidence of
non-examining sources at the administrative law judge level of administrative review. SSR
96-6p. The ALJ specifically noted that, since the time of these opinions, the record had been
supplemented with testimony and additional medical evidence (Tr. 22). He also concluded that
his RFC determination was consistent with the record as a whole (Tr. 22).
Substantial evidence supports the ALJ’s credibility determination at step five, and the ALJ
made no legal error when reaching his decision at this stage.
(4)

The ALJ’s RFC Determinations

If a claimant demonstrates that he cannot perform his past relevant work, the
Commissioner bears the burden of proving that his functional capacity, age, education, and work
experience allow him to perform other work in the national economy. See Bowen v. Yuckert, 482
U.S. 137, 146 n.5 (1987). Mr. Jones asserts that the ALJ erred in this determination at step five.

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Mr. Jones asserts that the ALJ was required to consider the opinions of the state agency
medical consultant when formulating his RFC determinations (Dkt. No. 15, at 7-8). Social
Security Regulation 96-2p dictates that the ALJ must give weight to the treating physician’s
assessment and “that even if a medical source’s opinion is not entitled to controlling weight it does
not necessarily mean it is rejected but can still be entitled to deference and may be adopted by the
adjudicator.” The ALJ is “not free to ignore medical evidence but rather must consider the whole
record.” Reeder v. Apfel, 214 F.3d 984, 988 (8th Cir. 2000). This Court concludes that, based on
the record as a whole, the ALJ considered these opinions but reasonably determined that, after the
state agency medical consultants offered their opinions in May 2009 and June 2009, the record was
supplemented with testimony and additional medical evidence (Tr. 22). Accordingly, the ALJ
was not obligated to adopt the opinions of the state agency medical consultants.
This Court also concludes that substantial evidence supports the RFC determination the
ALJ did reach. In both his RFC determinations, the ALJ specifically set out the specific physical
limitations associated with sedentary work (Tr. 15, 18). With his first RFC determination, the
ALJ set out the specific mental limitations that Mr. Jones would have with his substance abuse
disorders (Tr. 15). The ALJ did not include any mental limitations with his second RFC
determination because he determined that, absent his substance abuse disorders, Mr. Jones had no
mental conditions that caused more than a minimal effect on his ability to do basic work-related
activities (Tr. 18). Further, the ALJ specifically addressed in both of his RFC determinations the
seven strength demands for exertional capacity and addressed each demand (Tr. 15, 18). For
these reasons, the Court finds unpersuasive Mr. Jones’s claim that the ALJ did not provide a
function-by-function assessment of his limitations (Dkt. No. 15, at 8-11).
Although Mr. Jones argues in his brief that he could not perform the prolonged sitting

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requirements of sedentary work due to his hip replacement before surgery and during his
post-surgery recovery period, he does not refer to any specific page number in the transcript to
support his arguments nor does he allege how long he was incapacitated after his hip surgery (Dkt.
No. 15, at 11).
Mr. Jones also raises in connection with this argument the issue of whether he would have
a mental impairment if he discontinued the use of drugs and alcohol. The Court has considered
and addressed these issues previously in its analysis.
Mr. Jones suggests that the RFC is a medical question and that some medical evidence
must support the ALJ’s RFC determination (Dkt. No. 15, at 12). The determination of RFC is an
administrative assessment which is based on consideration of all evidence in the record and is
reserved solely to the Commissioner. SSR96-5p; 96-8p. Although a limited shift in the burden
of proof occurs at step five to produce vocational evidence, the burden of persuasion always
remains on the claimant. See 68 Fed. Reg. 51153, 51155 (August 26, 2003); see also Charles v.
Barnhart, 375 F.3d 777, 782 n.5 (8th Cir. 2004); Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th
Cir. 2004). The ALJ considered all of Mr. Jones’s physical and mental impairments, considered
the record evidence, and posed a sufficient and proper hypothetical to a VE. The ALJ’s RFC
decision is supported by substantial evidence. See Partee v. Astrue, 638 F.3d 860, 865 (8th Cir.
2011).
Because this Court determines that the ALJ’s RFC assessment is supported by substantial
evidence, this Court sustains the ALJ’s step five finding. The ALJ made no legal error in
reaching his conclusion on this point.

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V.

Conclusion

Having determined substantial evidence supports the Commissioner’s denial of Mr.
Jones’s applications for disability benefits, and the Commissioner made no legal error, the Court
DENIES Mr. Jones’s request for relief and AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED this 27th day of March, 2013.

____________________________________
Kristine G. Baker
United States District Judge

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