Ray v. Social Security Administration
MEMORANDUM OPINION AND ORDER affirming the Commissioner's decision; and dismissing 2 Plaintiff's Complaint with prejudice. Signed by Magistrate Judge Joe J. Volpe on 8/19/2014. (srw)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
MEMORANDUM OPINION AND ORDER
Plaintiff, Sharon Ray, appeals the final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying her claims for disability insurance benefits (“DIB”) under
Title II of the Social Security Act (the “Act”) and for supplemental security income (“SSI”) benefits
under Title XVI of the Act. For reasons set out below, the decision of the Commissioner is
On May 27, 2010, Ms. Ray protectively filed for SSI and DBI benefits due to asthma,
gastritis, ulcers, dermatitis, diabetes, high blood pressure, carpal tunnel syndrom, sleep apnea, back
pain, fibromyalgia, allergies, obesity, depression, anxiety, and bowel and bladder problems. (Tr.
220) Ms. Ray’s claims were denied initially and upon reconsideration. At Ms. Ray’s request, an
Administrative Law Judge (“ALJ”) held a hearing on July 6, 2011, where Ms. Ray appeared with
her lawyer. (Tr. 33) At the hearing, the ALJ heard testimony from Ms. Ray, a friend of Ms. Ray’s,
and a vocational experts (“VE”). (Tr. 34-62)
The ALJ issued a decision on August 19, 2011 finding that Ms. Ray was not disabled under
the Act. (Tr. 11-26) The Appeals Council denied Ms. Ray’s request for review, making the ALJ’s
decision the Commissioner’s final decision. (Tr. 1-3)
Ms. Ray, who was thirty-eight years old at the time of the hearing, has her GED. (Tr. 36)
She has past relevant work as a line worker in a factory. (Tr. 221)
DECISION OF THE ADMINISTRATIVE LAW JUDGE1
The ALJ found that Ms. Ray had not engaged in substantial gainful activity since
December 2, 2009 and that she had the following severe impairments: diabetes, asthma,
hypertension, carpal tunnel syndrome, obstructive sleep apnea, morbid obesity, and adjustment
reaction, depression with mixed anxiety features. (Tr. 13) However, the ALJ found that Ms. Ray
did not have an impairment or combination of impairments meeting or equaling an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1.2 (Tr. 14)
According to the ALJ, Ms. Ray has the residual functional capacity (“RFC”) to perform
sedentary work, but there could be no rapid, repetitive flexion or extension of the wrists; no exposure
to hazards; no climbing ropes or ladders and only occasional climbing of stairs and ramps;
occasional balancing, crawling, kneeling, stooping, and crouching. She also must avoid concentrated
exposure to temperature extremes or pulmonary irritants, and is limited to work where interpersonal
contact was incidental to work performed; complexity of tasks was learned and performed by rote
with few variables and little judgment; and supervision required was simple, direct, and concrete.
(Tr. 18) The VE testified that the jobs available with these limitations were production and assembly
The ALJ followed the required sequential analysis to determine: (1) whether the claimant
was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment;
(3) if so, whether the impairment (or combination of impairments) met or equaled a listed
impairment; and (4) if not, whether the impairment (or combination of impairments) prevented the
claimant from performing past relevant work; and (5) if so, whether the impairment (or combination
of impairments) prevented the claimant from performing any other jobs available in significant
numbers in the national economy. 20 C.F.R. §§ 416.920(a)-(g) (2005).
20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926.
worker, inspector, examiner, weigher, and addressing clerk. (Tr. 61)
After considering the VE’s testimony, the ALJ determined that Ms. Ray could perform a
significant number of jobs existing in the national economy, and found that Ms. Ray was not
Standard of Review
In reviewing the Commissioner’s decision, this Court must determine whether there is
substantial evidence in the record as a whole to support the decision. Boettcher v. Astrue, 652 F.3d
860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g). Substantial evidence is “less than a preponderance,
but sufficient for reasonable minds to find it adequate to support the decision.” Id. (citing Guilliams
v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)).
In reviewing the record as a whole, the Court must consider both evidence that detracts from
the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be
reversed, “simply because some evidence may support the opposite conclusion.” Id. (citing Pelkey
v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).
Ms. Ray’s Arguments for Reversal
Ms. Ray asserts that the Commissioner’s decision should be reversed because it is not support
by substantial evidence. Specifically, Ms. Ray contends that the ALJ (1) failed to perform a
psychiatric review technique to evaluate Ms. Ray’s personality disorder; (2) erred in his RFC
determination; and (3) relied on vocational evidence that conflicted with the Dictionary of
Occupational Titles. (Doc. No. 12)
Ms. Ray argues that the ALJ erred by not evaluating her personality disorder. In a July 14,
2010, report, Dr. Shry opined that Ms. Ray “appear[ed] to meet the diagnostic criteria for Adjustment
Reaction and Personality Disorder.” (Tr. 367) This same finding was made during a July 21, 2010,
assessment. (Tr. 404)
As the Commissioner argues, the ALJ did recognize the medical evidence reporting Ms.
Ray’s diagnosis of personality disorder. (Tr. 22-23, 367, 404) But a diagnosis does not establish
a disabling or even “severe” impairment. Rather, the ALJ properly focused on Plaintiff’s functional
limitations. (Tr. 13-18, 21-22) Trenary v. Bowen, 898 F.3d 1361, 1364 (8th Cir. 1990). Here, the
ALJ determined that, based on her functional limitations, only Plaintiff’s depression substantially
limited her ability to perform work related activities. (Tr. 13)
And while it is true that the ALJ did not specifically mention listing 12.08,3 the error is
harmless, since it appears that Ms. Ray would not have met the requirements of the listing. In
addition to part A, Ms. Ray had to meet at least two of the listings in part B, which are:
Marked restriction of activities of daily living; or
Marked difficulties in maintaining social functioning; or
Marked difficulties in maintaining concentration, persistence, or pace; or
Repeated episodes of decompensation, each of extended duration.
20 C.F.R. Pt. 404, Subpart P, App. 1.
The ALJ discussed these same requirements when assessing the criteria for listings 12.04 and
12.02, and found that Plaintiff met none of them. (Tr. 16-17). There is substantial evidence in the
record to support his findings. Notably, Ms. Ray has pointed out no evidence to the contrary; rather
she argues that he didn’t specifically mention and assess 12.08. This omission is harmless.
Ms. Ray asserts that the ALJ’s RFC determination is in error because he “assign[ed] no
Though he did not assess the listing, the ALJ did recognize that Dr. Shry diagnosed Ms. Ray
with “mixed anxiety features and personality disorder with histrionic traits.” (Tr. 22-23)
weight to any treating source.” (Doc. No. 12) She also takes issue with the ALJ’s giving Dr. Shry’s
report great weight after finding it “to be substantially consistent with the record as a whole. There
are not contrary opinions in evidence and no recorded observations within the claimant’s mental
health treatment records that would lead me to conclude that Dr. Shry’s assessment is not
reasonable.” (Tr. 24) Ms. Ray argues that this statement directly contradicts the GAF scores given
to her by her counselors. While it is true that the counselor’s GAF scores were between 41-50 in late
2010 and March 2011, the ALJ specifically addressed these scores. He pointed out that the
counselors are “not an acceptable medical source for purposes of establishing a medically
determinable impairment” and discredited GAF scores, generally. Additionally, he noted that those
scores were inconsistent with the record as a whole. (Tr. 22-24) Jones v. Astrue, 619 F.3d 963, 974
(8th Cir. 2010) (an ALJ is permitted to disregard GAF scores when they conflict with the medical
evidence and the claimant’s functional abilities).
Relied on Erroneous Vocational Evidence
Ms. Ray argues that there is a conflict between the VE’s testimony and the DOT job
descriptions. (Doc. No. 12) Specifically, Ms. Ray takes issue with the ALJ’s use of the words
“cannot do rapid, repetitive flexion/extension of the wrists bilaterally” as a restriction during a
hypothetical. (Tr. 60) Ms. Ray contends that this limitation is best considered a “handling”
restriction, and that the “job titles for the production and assembly work . . . all require frequent
handling.” (Doc. No. 12) The record does not support Ms. Ray’s argument. First, Dr. Takach, who
performed a physical functional capacity assessment on June 28, 2010, found that Ms. Ray had no
limitations with handling, feeling, and fingering. (Tr. 359) Instead he concluded that her limitation
was only “rapid repetitive F-E [flexion/extension] of the wrists.” (Tr. 357) Second, the ALJ
appropriately included this restriction in his hypothetical, and the VE expressed no confusion about
what he was being asked. Finally, Ms. Ray’s counsel neither objected nor questioned the VE about
what she now alleges is a contradiction.
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 sufficient evidence in the
record as a whole to support the Commissioner’s decision.
Accordingly, the Commissioner’s decision is affirmed and Ms. Ray’s Complaint is dismissed
IT IS SO ORDERED this 19th day of August, 2014.
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?