Shelton v. Social Security Administration

Filing 15

RECOMMENDED DISPOSITION: The undersigned magistrate judge recommends affirming the decision of the Commissioner. Objections to these findings and recommendations are due no later than 14 days from the date of this Order. Signed by Magistrate Judge Patricia S. Harris on 3/7/2018. (mcz)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
ROY SHELTON

PLAINTIFF

v.

No. 4:17-CV-00061-SWW-PSH

NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration

DEFENDANT

RECOMMENDED DISPOSITION
INSTRUCTIONS
The following Recommended Disposition (“Recommendation”) has been sent to
United States District Judge Susan Webber Wright. You may file written objections to
all or part of this Recommendation. If you do so, those objections must: (1) specifically
explain the factual and/or legal basis for your objection; and (2) be received by the Clerk
of this Court within fourteen (14) days of this Recommendation. By not objecting, you
may waive the right to appeal questions of fact.
REASONING FOR RECOMMENDED DISPOSITION
Roy Shelton applied for social security disability benefits with an alleged
disability onset date of March 15, 1995. (R. at 60). After a hearing, the administrative
law judge (ALJ) denied his application. (R. at 20). The Appeals Council denied Shelton’s
request for review. (R. at 1). The ALJ’s decision now stands as the Commissioner’s final
decision, and Shelton has requested judicial review.
For the reasons stated below, the magistrate judge recommends affirming the
Commissioner’s decision.
I.

The Commissioner’s Decision

The ALJ found that Shelton had the severe impairments of degenerative disk
disease of the lumbar spine, osteoarthritis, and adjustment disorder with mixed
depression and anxiety. (R. at 11). As a result of the impairments, the ALJ determined
that Shelton had the residual functional capacity (RFC) to perform light work, with the
additional limitations that he could not climb ladders, ropes, or scaffolds; could only
occasionally climb ramps or stairs, kneel, crawl, crouch, stoop, or balance; could not
have exposure to unprotected heights or control or operate foot controls with his left
lower extremity; could only perform work that allows for the use of a cane as needed to
access the workstation; would be limited to unskilled duties where interpersonal contact
is incidental to the work performed; could perform work where the complexity of one to
two step tasks would be learned and performed with few variables and little judgment by
rote; required supervision that is simple, direct, and concrete; and would be limited to
SVP 1 or 2 jobs that can be learned within 30 days. (R. at 13–14). Shelton had no past
relevant work. (R. at 17). The ALJ took testimony from a vocational expert (VE) and
determined that Shelton could perform jobs such as furniture rental consultant or
photocopy machine operator. (R. at 19–20). The ALJ therefore held that Shelton was
not disabled. (R. at 20).
II.

Summary of Medical Evidence
Shelton was diagnosed with minimal osteoarthritis in the right hip via

radiography on February 3, 2012. (R. at 299). An MRI in March 2013 showed
degenerative disk disease of the lumbar spine with herniated nucleus pulposus and
neural foraminal stenosis. (R. at 24). He received a lumbar interlaminar epidural
injection for radiculopathy and back pain. (R. at 24).

Consultative examiner Garry Stewart, M.D. found normal range of motion,
normal reflexes, negative bilateral straight leg raise test, normal grip strength, normal
gait, and normal limb function. (R. at 303–04). Dr. Stewart found no limitations. (R. at
304–05).
A November 2013 MRI found minimal disk bulge at L2–L3 and L3–L4; mild disk
osteophyte bulge at L4–L5; and grade 1 anterolisthesis of L5 on S1 with left foraminal
disk protrusion/extrusion abutting the left S1 nerve root, moderate left and mild right
facet hypertrophy, and moderate left neural foraminal narrowing. (R. at 318–19). An
EMG in December 2013 showed positive sharp waves at multiple levels in the left
lumbar paraspinal musculature, consistent with left lower lumber radiculopathy. (R. at
327).
Shelton did not seek treatment for 15 months, but did establish care with a new
provider in March 2015. (R. at 385). He complained of a cyst, back pain, and
intermittent bloody diarrhea. (R. at 385). He stated that injections for his back pain had
not been completely effective. (R. at 385). He had tenderness on palpation in the
lumbosacral spine, but a straight leg raising test was negative. (R. at 387).
He presented in April 2015 for back pain radiating to the left foot that was
aggravated by bending and repetitive lifting and also complained of fatigue, arthralgias,
and myalgias. (R. at 366). He displayed slow gait, decreased range of motion in the
lumbar spine, and pain with range of motion in the lumbar spine. (R. at 367). In May
2015, he reported pain in both hips, shooting pain in the right leg, and had begun using
a cane to ambulate. (R. at 360). He continued to show slow gait, decreased range of
motion in the lumbar spine, and pain with range of motion in the lumbar spine. (R. at

361). A new MRI revealed mild degenerative changes of the lower lumbar spine with no
neural compressive lesion identified. (R. at 373).
In June 2015, Shelton presented for examination concerning complaints of chest
pain. (R. at 452). It was planned that he would have an EKG for ischemia evaluation. (R.
at 454). On July 8, 2015, Shelton had a normal EKG. (R. at 450). He received an
epidural steroid injection on July 28, 2015. (R. at 455).
Concerning mental impairments, during discharge from prison, Shelton
underwent a psychological examination and was diagnosed with depressive disorder,
NOS, and polysubstance abuse in remission. (R. at 246). John Faucett, Ph.D. performed
a consultative examination in July 2013. (R. at 309). Dr. Faucett diagnosed adjustment
disorder with mixed anxiety and depressed mood. (R. at 312). Dr. Faucett reported that
Shelton could communicate and interact in a socially adequate manner, could
communicate in an intelligible and effective manner, could cope with the
mental/cognitive demands of basic work-like tasks, could adequately attend to and
sustain concentration on tasks, could sustain persistence in completing tasks, and could
complete work-like tasks in an acceptable timeframe. (R. at 313). In September 2013,
Shelton took a PHQ-9, which suggested severe depression. (R. at 341–42). There is no
record of Shelton seeking mental health treatment after this date, though he stated he
still had anxiety, depression, and sleep disturbances in July 2015. (R. at 453).
III.

Discussion
The Court reviews to determine whether substantial evidence on the record as a

whole exists to support the ALJ’s denial of benefits. Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence” exists where a reasonable mind would find the
evidence adequate to support the ALJ’s decision. Slusser v. Astrue, 557 F.3d 923, 925

(8th Cir. 2009). The Court will not reverse merely because substantial evidence also
supports a contrary conclusion. Long, 108 F.3d at 187.
Shelton argues that the ALJ erred in assessing his RFC, did not perform a proper
credibility analysis and erroneously discredited him based on a fifteen-month treatment
gap, improperly relied on contradictory evidence, and failed to properly consider the
grids.
a. The RFC Determination
Shelton first argues that the ALJ erred in finding him capable of performing the
full range of light work. He contends that the medical records support additional
limitations that the ALJ should have included.
Initially, Shelton is mistaken. The ALJ included several additional postural and
mental limitations in the RFC. Nevertheless, Shelton argues that his back impairment
prevents him from engaging in the significant walking and standing that is required to
perform light work. This argument still fails, however.
The record contains no limitations on the ability to walk or stand from a
physician. The only opinion offered by an examining physician proposed no limitations
on the ability to stand or walk. (R. at 305). Furthermore, Shelton’s physician, Brian
Blair, M.D., did not see a need to prescribe pain medication. (R. at 362, 373). There is
simply no objective evidence to show that Shelton has greater limitations in his ability to
walk or stand than the ALJ found and—for reasons stated below—the ALJ justifiably did
not rely on Shelton’s subjective complaints.
b. The Credibility Determination
Shelton next argues that the ALJ erred in finding his allegations of disabling pain
not entirely credible. He particularly objects to the degree of consideration the ALJ gave

to the fifteen-month gap in treatment, contending that his testimony sufficiently
explained the treatment gap.
The Court defers to the ALJ’s credibility determination when it is supported by
good reason and substantial evidence. Turpin v. Colvin, 750 F.3d 989, 993 (8th Cir.
2014). The ALJ must consider “(1) the claimant's daily activities; (2) the duration and
intensity of the pain; (3) the precipitating and aggravating factors; (4) dosage,
effectiveness and side effects of medication; (5) functional restrictions.” Miller v.
Sullivan, 953 F,2d 417, 420 (8th Cir. 1992) (citing Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984). The ALJ need not specifically address each factor. Strongson v.
Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004).
Multiple factors weigh against Shelton’s credibility. As noted above, Dr. Blair saw
no need to prescribe pain medication. (R. at 362, 373). Dr. Stewart found none of the
limitations that Shelton claimed. (R. at 304–05). It is true that Shelton testified that he
had insurance problems; however, his testimony was specifically that he could not find a
mental health provider to take QualChoice but had recently switched to Blue Cross and
was about to see someone for depression and anxiety. (R. at 35). This does not explain
the treatment gap concerning his back pain, and a failure to seek treatment weighs
against a claimant’s credibility. Milam v. Colvin, 794 F.3d 978, 985 (8th Cir. 2015).
Shelton also objects to the ALJ’s discrediting of lay witness statements. (R. at 50–
58, 203–05). The ALJ found these statements were likely colored by affection for
Shelton and that the witnesses had no medical training to assess Shelton’s impairments.
(R. at 16). As the Commissioner correctly notes, such statements can be discredited
based on the same evidence used to discredit the claimant’s statements. Black v. Apfel,
143 F.3d 383, 387 (8th Cir. 1998). As the objective medical evidence, lack of treatment,

and other factors weigh against Shelton’s credibility, they equally weigh against these lay
witness statements.
c. Opinion Evidence
Shelton further maintains that the ALJ’s RFC is unsupported by the opinion
evidence because the ALJ assigned little weight to Dr. Stewart’s opinion and the
opinions of the State Agency consultants while giving some weight to Dr. Faucett’s
opinion and the lay witness statements. (R. at 17–18). Shelton suggests that if the
opinions given some weight are more persuasive than those with little weight there is no
way Shelton could be found capable of light work.
The ALJ functions to resolve conflicts in the medical evidence. Wagner v. Astrue,
499 F.3d 842, 848 (8th Cir. 2007). The State Agency physicians found Shelton capable
of medium work. (R. at 70, 82). Dr. Stewart found no limitations. (R. at 304–05).
Overall, the ALJ’s RFC limitation to a restricted range of light work is extremely
favorable in light of these opinions. The ALJ reasonably added restrictions based on
testimony and lay witness statements, and the undersigned cannot find that the RFC
determination is unsupported by substantial evidence on the record as a whole
d. The Grids
Shelton’s final argument is that the ALJ should have applied a borderline age
category rule when considering the grids. Shelton argues that he would be disabled
under the grids if the ALJ had applied the closely approaching advanced age category
and found him capable of only sedentary work.
Shelton’s argument necessarily fails. For the reasons stated above, the RFC
determination is supported by substantial evidence on the record as a whole. As such, it

would make no difference whether the ALJ applied the higher age category, as Shelton
would still not be found disabled. 20 C.F.R. Pt. 404, Subpt. P., App. 2.
IV.

Recommended Disposition
The ALJ properly formulated the RFC, properly weighed the evidence, performed

a proper credibility analysis, and properly applied the Medical-Vocational Guidelines.
The ALJ’s decision is supported by substantial evidence on the record as a whole and is
not based on legal error. For these reasons, the undersigned magistrate judge
recommends AFFIRMING the decision of the Commissioner.
It is so ordered this 7th day of March, 2018.

________________________________
PATRICIA S. HARRIS
UNITED STATES MAGISTRATE JUDGE