Phillips v. Social Security Administration
MEMORANDUM OPINION AND ORDER denying Ms. Phillips's request for relief and AFFIRMING the decision denying the application. Signed by Magistrate Judge Beth Deere on 11/20/12. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ROTHA SUE PHILLIPS
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration
MEMORANDUM OPINION AND ORDER
Rotha Sue Phillips sought judicial review of the denial of her applications for
disability insurance benefits and supplemental security income.1 This is the second time
the court has reviewed this case. On the first review, the court determined that the
Commissioner’s ALJ erred at step two of the disability-determination process by
determining that Ms. Phillips’s impairments were not severe.2 The court remanded the
case to the Commissioner for a step-four analysis.
The Commissioner’s second decision. On remand, the ALJ determined at step
four that Ms. Phillips had the residual functional capacity (“RFC”) to do full range of
medium work.3 Then, relying on vocational testimony obtained during Ms. Phillips’s
first hearing, the ALJ determined Ms. Phillips could do her past relevant work. Because
she could do her past work, the ALJ concluded that Ms. Phillips was not disabled. After
See docket entry # 2 (complaint).
SSA record at p. 227.
Id. at p. 216.
the Appeals Council denied Ms. Phillips’s request for review,4 the ALJ’s decision
became a final decision for judicial review.5 Ms. Phillips filed this case to challenge the
RFC. Ms. Phillips first challenges the ALJ’s RFC determination. Her argument is
a general one: “A fifty-six year old female with a bulging disc who is morbidly obese
cannot credibly be expected to lift 25 pounds frequently and 50 pounds occasionally,
not frequently bend, stoop, or crouch.”6 Ms. Phillips argues that she cannot do medium
work7 because of degenerative disc disease of the lumbar spine and obesity. She
maintains that she cannot frequently bend, stoop, or crouch.
“A claimant’s RFC represents the most [she] can do despite the combined effects
of all of [her] credible limitations and must be based on all credible evidence.”8 “In
determining the claimant’s [RFC], the ALJ has a duty to establish, by competent medical
SSA record at p. 205.
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).
Docket entry # 13, p. 9. Ms. Phillips was 50 years old when she applied for
“Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c).
McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011).
evidence, the physical and mental activity that the claimant can perform in a work
setting, after giving appropriate consideration to all of her impairments.”9 The issue of
the credibility of Ms. Phillips’s allegations about her limitations was resolved in the first
judicial review of this case.10 What remains is determining whether competent medical
evidence, after giving appropriate consideration to all of Ms. Phillips’s impairments,
supported the ALJ’s determination that Ms. Phillips could do medium work.
The competent medical evidence flowed from a MRI11 of Ms. Phillips’s lumbar
spine and treatment by an orthopedist. The MRI showed “mild” degenerative disc
disease at L5-S1 with a posterior annular tear and a “small” broad-based disc protrusion
in the lumbar spine.12 The characterization of degenerative disc disease as “mild”
indicated that Ms. Phillips retained substantial RFC. The presence of a disc protrusion
and its characterization as “small” had little evidentiary value because a damaged or
diseased disc does not necessarily mean a person will have pain or another symptom.13
Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996).
SSA record at p. 233 (agreeing with the ALJ that Ms. Phillips exaggerated the
duration and degree of pain and limitation).
An MRI “is the procedure of choice for finding soft-tissue causes of low back
pain. It can usually assist in identifying disk herniation, infections…, hematomas, and
tumor.” Dan J. Tennenhouse, Attorneys Med. Deskbook § 24:17 VII (4th ed.).
SSA record at p. 161.
See 2 Lawyers’ Med. Cyclopedia § 16.9[C] (“Whether a patient experiences
discomfort from the disc disease depends on …canal, and foramen size, as well as the
Spinal stenosis or disc impingement causes symptoms.14 If a disc protrusion
impinges on the thecal sac or a nerve root, a person will likely experience symptoms.15
Symptoms include low back pain; pain in the thighs, knees, or feet; numbness; tingling;
a burning sensation; muscular weakness; and affection of reflexes.16 Ms. Phillips
complained about some of these symptoms. The MRI though showed impingement of
the thecal sac or a nerve root.17 The MRI showed nothing that explained the degree of
pain and limitation Ms. Phillips alleged—no evidence of disc extrusion,18 canal stenosis,
percentage of disc herniated.); Dan J. Tennenhouse, Attorneys Med. Deskbook § 24:17
VII (4th ed.) (“Protruded disks usually cause no symptoms.”); 2 Lawyers’ Med.
Cyclopedia § 16.9 (explaining that a disc “protrusion may or may not compress the
spinal cord or nerve roots, causing neurological symptoms and signs”).
See Mary Jeanne Krob & Laura Brasseur, 5 Attorneys Textbook of Med. (3d ed.)
P 15.32 (explaining that a disc protrusion may be asymptomatic unless there is some
degree of spinal stenosis or disc impingement).
Dan J. Tennenhouse, Attorneys Med. Deskbook § 26:8(3) (4th ed.) (“[L]umbar
nerve root compression at the spine produces the sensation of pain “radiating” down
the leg along the sciatic nerve.”).
Dan J. Tennenhouse, Attorneys Med. Deskbook § 24:17 II (4th ed.) (“When
intervertebral discs are damaged, the soft contents protrude or are expelled and press
against adjacent nerves. This can cause leg pain, and if severe, can result in leg
weakness or paralysis.”).
SSA record at p. 161.
See Dan J. Tennenhouse, Attorneys Med. Deskbook § 24:17 III (4th ed.)
(“Extruded disks usually cause symptoms.”).
or foraminal stenosis.19 Evidence of one of these conditions would have supported the
alleged degree of severity and supported a reduction in RFC.
Because Ms. Phillips persisted in complaining about pain, the orthopedist
ordered a nerve conduction study20 and an electromyogram.21 Both tests were normal.22
Neither test showed impingement.
The orthopedist’s exam findings were also negative: The result of straight leg
raising was negative.23 This result was important because “the majority of patients with
Lumbar canal stenosis is the narrowing of the spinal canal or the side canals
protecting the nerves. Foraminal stenosis is the narrowing of the foramen through
which the nerve root exits the spinal canal. The conditions have similar symptoms:
radiating pain that travels from the low back to the hips, buttocks, and the back of the
leg; numbness; tingling; weakness; and sometimes cramping. See 2-16 Lawyers’ Med.
Cyclopedia § 16.32a.
“Nerve conduction studies are performed by attaching electrodes over muscles
(motor nerve conduction studies) or sensory nerve fibers (sensory studies).…The
appropriate nerve or muscle is stimulated, and the output from the electrode is
recorded in order to measure nerve conduction velocity or the electrical characteristics
of muscle contraction.” Dan J. Tennenhouse, Attorneys Med. Deskbook § 17.14 (4th ed.).
See 2 Lawyers’ Med. Cyclopedia § 16.9D (explaining how electromyography
isolates specific nerve roots for identifying compression); Dan J. Tennenhouse,
Attorneys Med. Deskbook § 24:17 VII (4th ed.) (“Myelography is used to visualize the
spinal cord and nerve roots, and can usually identify encroachment on these structures
by a herniated disk.”).
SSA record at pp. 154 & 249.
Id. at p. 159 (Aug. 16, 2007); p. 250 (Sept. 17, 2007); p. 248 (Oct. 5, 2007).
acute herniated discs will have positive results.”24 Ms. Phillips had a normal ankle jerk
reflex test.25 This test was important because it tested the S1 nerve root (the site of the
protrusion).26 The orthopedist found no weakness in the extensor hallucis longus27—the
muscle that flexes the foot and extends the great toe.28 This finding was important
because the L5 (the site of the protrusion) nerve root stimulates the extensor hallucis
longus, a neurological level cannot be assessed by reflex testing. In addition, there was
no Babinski sign29—an abnormal response “characterized by dorsiflexion (moving away
from the sole of the foot) of the great toes and fanning out of the other toes.”30 This
See Mary Jeanne Krob & Laura Brasseur, 5 Attorneys Textbook of Med. (3d ed.)
P 15.34; 2 Lawyers Med. Cyclopedia § 16.9D (“For the test to be considered
positive, pain must be reproduced in the leg, not solely in the back.…In the straight-leg
test, the L5 and S1 roots move 2 to 6 mm within their intervertebral foramina, which
subjects them to tensile and compressive forces.”).
SSA record at p. 159 (Aug. 16, 2007); p. 250 (Sept. 17, 2007); p. 248 (Oct. 5, 2007).
A positive ankle-jerk reflex test is significant for: “Impairment of the S1 or S2
nerve roots, as with low lumbar disk herniation; impairment of the sciatic nerve;
peripheral neuropathy; hypothyroidism (decreased or slowed reflex). (2) Lesions of the
pyramidal tracts of the central nervous system; alcoholic withdrawal.” Dan J.
Tennenhouse, Attorneys Med. Deskbook § 18:4 (4th ed.).
SSA record at pp. 159 & 248.
Mary Jeanne Krob & Laura Brasseur, 5 Attorneys Textbook of Med. (3d ed.)
SSA record at pp. 159 & 248.
Mary Jeanne Krob & Laura Brasseur, 5 Attorneys’ Textbook of Med. 15.35
result was important because it ruled out the presence of a lesion in the bundle of
nerves that supplies voluntary muscles.31 Ms. Phillips’s calves and thighs were
symmetrical in circumference.32 “Symmetrical muscle bulk and strength are expected
unless the patient has a neurologic impairment or a history of lower extremity muscle
or joint problem.”33 Ms. Phillips had no history lower extremity muscle or joint
problem, so the result indicated that Ms. Phillips had no neurological impairment.
The orthopedist prescribed conservative treatment in the form of home exercises,
and later in the form of physical therapy.34 The orthopedist prescribed no prescription
pain medication. Ms. Phillips did not do the exercises. She testified that it hurt to do
Ms. Phillips’s last visit with the orthopedist was in October 2007. During her
second hearing—in February 2010—she testified that she sought no further treatment
for her back.36 All of this suggests that Ms. Phillips significantly over-stated her
SSA record at p. 159.
U.S. Agency for Health Care Policy & Research, Acute Low Back Pain
Problems in Adults: Assessment & Treatment, Quick Reference Guide for Clinicians,
Clinical Practice Guideline #14 (1994).
SSA record at pp. 160 & 248-49.
Id. at p. 190.
SSA record at pp. 256-58.
limitations and that she retained substantial RFC. Obesity may cause functional
limitations “in any of the exertional functions such as sitting, standing, walking, lifting,
carrying, pushing, and pulling,”37 but the record contained no evidence that Ms.
Phillips’s weight caused limitations in those functions.
Ms. Phillips’s general argument does not sound unreasonable, but there is no
medical evidence suggesting Ms. Phillips could not do medium work. A reasonable
mind would accept the diagnostic findings, the prescription of conservative treatment,
and the failure to seek treatment as adequate to support the determination that Ms.
Phillips could do medium work.38 Ms. Phillips had the burden to prove that she could
not do medium work.39 She did not meet that burden.
Social Security Ruling 02-1p: Policy Interpretation Ruling on Titles II & XVI:
Evaluation of Obesity at ¶ 8, effective Sept. 12, 2002. See 4 The Gale Encyclopedia of
Med. 3116 (4th ed.) (describing how obesity stresses the body’s organs and increases the
risk of problems like fatigue and poor physical fitness).
See Britton v. Sullivan, 908 F.2d 328, 330 (8th Cir. 1990) (“Substantial evidence
‘means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’”) (internal citation omitted) .
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (“The claimant first must bear the
burden at step one of showing that he is not working, at step two that he has a
medically severe impairment or combination of impairments, and at step four that the
impairment prevents him from performing his past work.”).
The ability to do past work. Ms. Phillips’s other argument challenged the
determination that she could do her past work.40 This challenge is important to her case
because the not-disabled conclusion flowed from the past-work determination.
Ms. Phillips complained that her past work was unskilled work, but that the ALJ stated
the work was semi-skilled work. The Commissioner characterized the classification as a
typographical error.41 The court agrees.
The vocational expert testified that Ms. Phillips’s former work as a small car
parts inspector was unskilled, light work, that Ms. Phillips performed a medium level.42
The ALJ relied on that testimony in determining Ms. Phillips could do her past work,
stating the “vocational expert at the last hearing testified that the work was classified as
semi-skilled light work, but the claimant performed the job at the medium exertional
level.”43 Comparison of the testimony and the text of the opinion demonstrates that the
use of the word “unskilled” in the opinion was a mistake.
The mistake had no impact on the ultimate conclusion because the vocational
expert classified the work as medium work and the ALJ determined Ms. Phillips could
Docket entry # 13, pp. 9-11.
Docket entry # 14, p. 6.
SSA record at p. 199.
Id. at p. 216.
do medium work. There was no issue about whether Ms. Phillips could perform semiskilled work. The ALJ’s mistake “is not a sufficient reason for setting aside an
administrative finding where the deficiency had no practical effect on the outcome of
Conclusion. Substantial evidence supports the ALJ’s decision denying Ms.
Phillips’s applications. The ALJ made no legal error. For these reasons, the court
DENIES Ms. Phillips’s request for relief (docket entry # 2) and AFFIRMS the decision
denying the application.
It is so ordered this 20th day of November, 2012.
UNITED STATES MAGISTRATE JUDGE
Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999). Accord Van Vickle v. Astrue,
539 F.3d 825, 831 (8th Cir. 2008) (determining ALJ’s mis-reading of “walk” as “work” in
physician’s treatment note was harmless error because nothing indicated the ALJ would
have determined that the claimant could not do her past relevant work).
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