Willoughby v. Social Security Administration
OPINION AND ORDER affirming the final determination of the Commissioner. Roy D. Willoughby's complaint is dismissed with prejudice. Signed by Judge J. Leon Holmes on 01/17/2014. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ROY D. WILLOUGHBY
NO. 4:12CV00608 JLH
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration1
OPINION AND ORDER
Roy D. Willoughby has appealed the final decision of the Commissioner of the Social Security
Administration denying his claims for Disability Insurance benefits and Supplemental Security
Income, based on disability. Both parties have submitted appeal briefs2 and the case is ready for
The Court reviews to determine whether the Commissioner’s decision is supported by
substantial evidence on the record as a whole and free of legal error. Slusser v. Astrue, 557 F.3d 923,
925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also 42 U.S.C.
§§ 405(g), 1383(c)(3). Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427, 28 L. Ed. 2d 842 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996).
In assessing whether substantial evidence supports the Commissioner’s decision, the Court
must consider evidence that detracts from the decision as well as evidence that supports it; the Court
may not, however, reverse the Commissioner’s decision merely because substantial evidence
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. She is therefore substituted for Michael J. Astrue pursuant to Fed. R. Civ. P. 25(d).
Willoughby also submitted a reply brief. Document #11.
would have supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004);
Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
“Disability” is the “inability to engage in any 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 continuous period of not less than 12 months.” 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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),
Willoughby alleged that he was limited in his ability to work by head trauma from a July 3,
2004, motorcycle accident and by chronic fatigue. Tr. 224. The Commissioner found that he was
not disabled within the meaning of the Social Security Act. The only issue before this Court is
whether the Commissioner’s decision that Willoughby was not disabled within the meaning of the Act
is supported by substantial record evidence.
Willoughby’s applications were denied initially and on reconsideration. Tr. 80-85, 88-91. He
requested a hearing. Tr. 92-94.
After conducting an administrative hearing at which Willoughby and a vocational expert
testified, the Administrative Law Judge3 concluded that Willoughby had not been under a disability
within the meaning of the Social Security Act at any time from his alleged onset date, April 20, 2007,
through September 24, 2010, the date of his decision. Tr. 23, 33. On July 24, 2012, the Appeals
Council denied Willoughby’s request for a review of the ALJ’s decision, making the ALJ’s decision
The Honorable Harold D. Davis.
the final decision of the Commissioner. Tr. 1-3. Willoughby then filed his complaint initiating this
appeal. Document #2.
After consideration of the record as a whole, the Court finds that the decision of the
Commissioner is supported by substantial evidence.
Willoughby was 53 years old at the time of the hearing. Tr. 44. He testified he completed
ten and one-half years of school and obtained his General Equivalency Diploma. Id. On his Disability
Report–Adult, he indicated that he completed twelve years of school in regular classes. Tr. 228. He
has past relevant work as a maintenance mechanic and as a chipper. Tr. 32, 71-72, 225-26, 231-35.
The ALJ considered Willoughby’s impairments by way of the required five-step sequential
evaluation process. The first step is to determine whether the claimant is involved in substantial
gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i) (2009). If the claimant is engaged
in substantial gainful activity, benefits are denied, regardless of the claimant’s medical condition, age,
education or work experience. Id. §§ 404.1520(b), 416.920(b). Step 2 is to determine whether the
claimant has an impairment or combination of impairments that is “severe” and meets the duration
requirement. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If not, benefits are denied. Id. A “severe”
impairment significantly limits a claimant’s ability to perform basic work activities.
§§ 404.1520(c), 416.920(c). Step 3 is to determine whether the severe impairment meets or equals
a listed impairment. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If so, and the duration requirement
is met, benefits are awarded. Id. If the claimant does not meet or equal a listed impairment, then a
residual functional capacity assessment is made. Id. §§ 404.1520(a)(4), 416.920(a)(4). This residual
functional capacity assessment is used at steps 4 and 5. Id. Step 4 is to determine whether the
claimant has sufficient residual functional capacity to perform past relevant work.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If so, benefits are denied. Id. Step 5 is to determine
whether the claimant is able to make an adjustment to other work, given the claimant’s age, education
and work experience. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If so, benefits are denied; if not,
benefits are awarded. Id.
The ALJ found Willoughby had not engaged in substantial gainful activity since his alleged
onset date. Tr. 25. He found that Willoughby had “severe” impairments, left-sided hearing loss,
tinnitus, depression, anxiety and polysubstance dependence. Id. He also found he had a symptom
not related to a medically determinable impairment, fatigue. Id. He found that Willoughby did not
have an impairment or combination of impairments that met or equaled a listed impairment. Tr. 26.
He judged that Willoughby’s allegations regarding the intensity, persistence and limiting effects of
his symptoms were not credible to the extent they were inconsistent with the residual functional
capacity which he found.4 Tr. 29.
The ALJ found that Willoughby retained the residual functional capacity for less than a full
range of light work. Tr. 28. He determined Willoughby was unable to perform any of his past
relevant work. Tr. 32. Based on the testimony of a vocational expert witness in response to a
hypothetical question, the ALJ found that there were a significant number of jobs in the economy
which Willoughby could perform, notwithstanding his limitations. These jobs included, for example,
cleaner I and hand packer. Tr. 32-33. Thus, the ALJ concluded that Willoughby was not disabled.
While there is nothing inherently objectionable about such a finding, it makes judicial review
of the next step in the sequential analysis (ability to perform past relevant work) difficult. Review is
difficult because the findings do not make clear which limitations the ALJ believed to be exaggerated.
Young v. Astrue, 702 F.3d 489, 493 (8th Cir. 2013) (Melloy, J., dissenting).
Willoughby advances several arguments in support of his appeal. First, he asserts that the ALJ
did not properly consider his GAF5 scores. The ALJ cited the different GAF scores assigned to
Willoughby and their significance. Tr. 29-30. There does not appear to be the uniformity of criteria
to judge the value of GAF scores. See The Conceptual Evolution of DSM-5 179-82 (Darrel Regier
et al. eds., 2011). In fact, the recently published Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013) (DSM-5) dropped the use of GAF scores. Id. at 16.
Even before that, the Eighth Circuit had rejected an argument that the ALJ’s failure to discuss
GAF scores required reversal.
Wright v. Astrue,
489 F. App’x 147, 149 (8th Cir. 2012)
(unpublished). The Eighth Circuit has noted that Pate-Fires v. Astrue, 564 F.3d 935 (8th Cir. 2009),
upon which Willoughby relies, failed to reference a federal regulation in which the Commissioner
declined to endorse the GAF scales for evaluating Social Security claims. Jones v. Astrue, 619 F.3d
963, 973-74 & n.4 (8th Cir. 2010) (citing 65 Fed. Reg. 50746, 50764-65 (August 21, 2000)).
Consequently, Willoughby’s argument is unpersuasive.
Next, Willoughby argues the ALJ erred by dismissing his fatigue as not medically
A “severe impairment is defined as one which ‘significantly limits [the
claimant’s] physical or mental ability to do basic work activities.’” Pelkey v.
Barnhart, 433 F.3d 575, 577 (8th Cir. 2006) (quoting 20 C.F.R. § 404.1520(c)). The
must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and
laboratory diagnostic techniques. A physical or mental impairment
must be established by medical evidence consisting of signs,
Global Assessment of Functioning. Diagnostic and Statistical Manual of Mental Disorders
32-34 (4th ed., Text Revision 2000) (DSM-IV-TR). The GAF Scale is the fifth axis of the multiaxial
assessment. Id. at 32. It is a subjective report of the clinician’s judgment of the individual’s overall
level of functioning with respect to psychological, social and occupational functioning. Id.
symptoms, and laboratory findings, not only by [the claimant’s]
statement of symptoms (see [20 C.F.R.] § 404.1527).
20 C.F.R. § 404.1508.
Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (first alteration in Pelkey and second and third
alterations in Martise).
As detailed below, unlike most cases, there was a significant diagnostic testing done in
connection with Willoughby’s complaint of fatigue. Tr. 402. Willoughby’s problem, in connection
with this argument, is that all of the testing came back negative.6 Congress and the Commissioner
have defined what must be found for a “severe” impairment. Willoughby did not meet his burden.
Next, Willoughby argues the ALJ erred in weighing the opinions of “single decision makers”
as if they were state agency medical consultants because the opinion-givers did not furnish a medical
consultant’s specialty code on forms they completed. The ALJ afforded these opinions little weight
because they were inconsistent with the evidence of record and did not take Willoughby’s subjective
complaints into account. Tr. 31. The ALJ’s conclusions on this issue were favorable to Willoughby,
not harmful to him. Willoughby cites POMS7 in support of his contention, but POMS are not legally
binding on the Commissioner. Berger v. Apfel, 200 F.3d 1157, 1161 (8th Cir. 2000).
The burden of showing that an error is harmful normally falls upon the party attacking the
agency’s determination. Shinseki v. Sanders, 556 U.S. 396, 409 (2009). Willoughby failed to meet
Willoughby points to one place in the record where an examining physician stated that his
fatigue seemed to be triggered by stress. A closer examination of the remark leads to a conclusion
that, rather than diagnosing fatigue, the doctor was noting that Willoughby contended stress triggered
his fatigue. Tr. 494.
Program Operations Manual Systems.
Next, Willoughby asserts that the ALJ’s credibility determination is unsupported by substantial
evidence in the record as a whole. The ALJ considered Willoughby’s subjective complaints in light
of the factors of Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984).8 Tr. 28-31.
The absence of an objective medical basis which supports the degree of severity of
subjective complaints alleged is just one factor to be considered in evaluating the
credibility of the testimony and complaints. The adjudicator must give full
consideration to all of the evidence presented relating to subjective complaints,
including the claimant’s prior work record, and observations by third parties and
treating and examining physicians relating to such matters as:
the claimant’s daily activities;
the duration, frequency and intensity of the pain;
precipitating and aggravating factors;
dosage, effectiveness and side effects of medication;
The adjudicator is not free to accept or reject the claimant’s subjective complaints
solely on the basis of personal observations. Subjective complaints may be discounted
if there are inconsistencies in the evidence as a whole.
Id. at 1322 (quoting a statement by the Justice Department that the Eighth Circuit described as “a
correct statement of the law concerning the evaluation of pain and other subjective complaints for
determining disability”) (emphasis in original).
There is little objective support in the record for Willoughby’s claim of disability. No
evaluations showed medical conditions that were disabling. Furthermore, inconsistencies between
the medical evidence and Willoughby’s subjective complaints gave reason to discount those
The ALJ cited Social Security Ruling 96-7p and 20 C.F.R. §§ 404.1529 and 416.929. Tr.
28. That Ruling tracks Polaski and 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) and elaborates
complaints. See Casey v. Astrue, 503 F.3d 687, 695 (8th Cir. 2007); Richmond v. Shalala, 23 F.3d
1441, 1443 (8th Cir. 1994).
Given the inconsistencies in Willoughby’s statements, the lack of medical evidence in support
of Willoughby’s allegations, the lack of more treatment, Willoughby’s daily activities, his functional
capabilities, and the lack of restriction placed on Willoughby by any physician, the ALJ could rightly
discount Willoughby’s subjective complaints. See, e.g., McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir.
2011) (ALJ may discount subjective complaints if there are inconsistencies in the record as a whole);
Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010) (same); Guilliams v. Barnhart, 393 F.3d 798,
801 (8th Cir. 2005) (same); Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001) (ALJ may
discount complaints inconsistent with the evidence as a whole); Dodson v. Chater, 101 F.3d 533, 534
(8th Cir. 1996) (after full consideration of all evidence relating to subjective complaints, ALJ may
discount complaints if there are inconsistencies in evidence as a whole).
Willoughby underwent a general physical examination in September of 2008. Tr. 494-98.
The examination revealed he had a full range of motion in the spine and all extremities. Tr. 496. He
was neurologically intact; there was no evidence of muscle weakness or atrophy, and no sensory
abnormalities were noted. Tr. 497. Gait and coordination were normal. Id. He had the ability to
hold a pen and write, touch fingertips to palms, grip, oppose thumb to fingers, pick up a coin, stand
and walk without assistive device, walk on heels and toes and squat and arise from a squatting
position; grip strength was 100%. Id. Circulation was normal. Id. There was no evidence of serious
mood disorder or psychosis; he was oriented to time, person and place. Tr. 498. The doctor
indicated he had no limitation on his ability to walk, stand, sit, lift, carry, handle, finger, see or speak.
Id. He noted Willoughby was “muscular, fit and strong.” Id.
On one occasion, Willoughby sought treatment for fatigue. Tr. 402. Lab results from that
visit revealed testosterone was normal; thyroid-stimulating hormone9 was in the normal range;
antinuclear antibody10 was normal; prostate-specific antigen11 was normal; glucose was 117 (he was
not fasting); liver enzymes were “okay”; vitamin B-12 was 1000; hemoglobin and hematocrit were
normal. Id. The Advance Practice Nurse offered for him to see a cardiologist and have a
psychological evaluation; he declined both at that time. Id. He indicated that he might follow up as
Willoughby reported his medication was “very beneficial.” Tr. 455. He was lifting weights
and working. Tr. 454, 501, 524. He was also getting out and doing things. Tr. 503.
Willoughby’s work activity during the period that he alleges disability supports the ALJ’s
conclusion that he was not disabled. See Dunahoo, 241 F.3d at 1039 (seeking work and working
while applying for benefits inconsistent with complaints of disabling pain); Ostronski v. Chater, 94
F.3d 413, 418 (return to past work undercuts complaints of inability to perform any work); Roe v.
Chater, 92 F.3d 672, 677 (8th Cir. 1996) (activities such as work are incongruous with a claimant’s
contention that he cannot work); Comstock v. Chater, 91 F.3d 1143, 1147 (8th Cir. 1996) (work
activity belies claim of disabling pain); Cruze v. Chater, 85 F.3d 1320, 1324 (8th Cir. 1996) (active
lifestyle and performance of odd jobs tend to prove claimant can work); Piepgras v. Chater, 76 F.3d
233, 236 (8th Cir. 1996) (wide range of activities, including working two days a week, supports
Neal M. Davis, Medical Abbreviations: 30,000 Conveniences at the Expense of
Communications and Safety 292 (14th ed. 2009).
Id. at 42.
Id. at 239.
finding of no disability); Bentley v. Chater, 52 F.3d 784, 786 (8th Cir. 1995) (seeking work
incompatible with disability); Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994) (intention to work
tends to prove ability to work); Starr v. Sullivan, 981 F.2d 1006, 1008 n.3 (8th Cir. 1992) (even
though not substantial gainful activity, a claimant’s work activity is determinative of capacity for
work); Thompson v. Sullivan, 878 F.2d 1108, 1110 (8th Cir. 1989) (any work during claimed
disability may show capacity for substantial gainful activity).
The ALJ’s credibility analysis was proper. He followed the law and regulations, made express
credibility findings and gave multiple valid reasons for discrediting Willoughby’s subjective
complaints. See, e.g., Finch v. Astrue, 547 F.3d 933, 935-36 (8th Cir. 2008); Shelton v. Chater, 87
F.3d 992, 995 (8th Cir. 1996); Reynolds, 82 F.3d at 258. His credibility findings are entitled to
deference as long as they are supported by good reasons and substantial evidence. Schultz v. Astrue,
479 F.3d 979, 983 (8th Cir. 2007); Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003).
Willoughby next contends that the ALJ failed to discuss adequately his residual functional
capacity as contemplated by Social Security Ruling 96-8p. The ALJ must determine the claimant’s
residual functional capacity based on all relevant evidence, including medical records, observations
of treating physicians and others, and claimant’s own descriptions of his limitations. Tellez v.
Barnhart, 403 F.3d 953, 957 (8th Cir. 2005); Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir.
2003); McGeorge v. Barnhart, 321 F.3d 766, 768 (8th Cir. 2003); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2001).
The ALJ’s residual functional capacity determination included physical functioning, mental
functioning, and hearing, as called for by the Ruling and 20 C.F.R. §§ 404.1545(b), (c) and (d) and
416.945(b), (c) and (d) (2009). Consistent with the Ruling, the ALJ narratively discussed medical
evidence, subjective complaints and other evidence, recognized that Willoughby’s impairments
created limitations and incorporated those limitations into his residual functional capacity. Tr. 25-31.
A fair reading of the ALJ’s opinion reveals that he properly determined Willoughby’s residual
Willoughby’s argument seeks to place the burden of proof on the
Commissioner. It is the claimant’s burden, and not the Social Security Commissioner’s burden, to
prove the claimant’s residual functional capacity. Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir.
2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); Masterson v. Barnhart, 363
F.3d 731, 737 (8th Cir. 2004); Baldwin, 349 F.3d at 556; Pearsall, 274 F.3d at 1217; Young v. Apfel,
221 F.3d 1065, 1069 n.5 (8th Cir. 2000); Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995).
Finally, Willoughby urges that the ALJ erred in failing to consider the application of the
borderline age category at Step 5. The Commissioner will not apply the age categories mechanically
in a borderline situation. 20 C.F.R. §§ 404.1563(b); 416.963(b) (2009). There is no bright line for
how many months constitute a borderline case. Byes v. Astrue, 687 F.3d 913, 918 (8th Cir. 2012).
However, eight months, as in the instant case, is too distant to be borderline. Id.
It is not the task of this Court to review the evidence and make an independent decision, nor
may the Court reverse the decision of the ALJ because there is evidence in the record that contradicts
his findings. The test is whether there is substantial evidence on the record as a whole which supports
the decision of the ALJ. Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008); Pratt v. Sullivan,
956 F.2d 830, 833 (8th Cir. 1992).
The Court has reviewed the entire record, including the briefs, the ALJ’s decision, the
transcript of the hearing and the medical and other evidence. There is ample evidence on the record
as a whole that “a reasonable mind might accept as adequate to support [the] conclusion” of the ALJ
in this case. Richardson v. Perales, 402 U.S. at 401, 91 S. Ct. at 1427 (quotations and citation
omitted); see also Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The
Commissioner’s decision is not based on legal error.
The Court affirms the final determination of the Commissioner. Roy D. Willoughby’s
complaint is dismissed with prejudice.
IT IS SO ORDERED this 17th day of January, 2014.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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