Gaynor v. Social Security Administration
MEMORANDUM OPINION AND ORDER AFFIRMING the Commissioner's final determination, denying pltf's appeal. Signed by Magistrate Judge Beth Deere on 2/13/13. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CASE NO. 5:11CV00023 BD
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Gaynor appeals the final decision of the Commissioner of the
Social Security Administration (the “Commissioner”) denying his 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.1 For reasons
set out below, the decision of the Commissioner is AFFIRMED.
On October 14, 2005, Mr. Gaynor filed for DIB and SSI. In both applications, he
alleged disability beginning on December 15, 2001, due to back and feet problems and
depression. (Tr. 132-136, 190) Mr. Gaynor’s claims were denied initially and upon
reconsideration. At his request, an Administrative Law Judge (“ALJ”) held a hearing on
November 7, 2007, at which Mr. Gaynor appeared with his attorney. (Tr. 1005-1057) At
the hearing, the ALJ heard testimony from Mr. Gaynor and a vocational expert (“VE”).
The parties consented to the jurisdiction of the Magistrate Judge. (#7)
The ALJ issued a decision on June 27, 2008, finding that Mr. Gaynor was not
disabled under the Act. (Tr. 61-71) On December 5, 2008, the Appeals Council
remanded the case to the ALJ for further administrative proceedings. (Tr. 50-53)
A different ALJ2 held a second hearing on February 12, 2009, at which Mr.
Gaynor appeared with his attorney. (Tr. 945-1003) The ALJ heard testimony from Mr.
Gaynor, his wife, and a VE.
The ALJ issued a partially favorable decision on August 11, 2009, but finding that
Mr. Gaynor was not disabled prior to October 3, 2008. (Tr. 27-38) After Mr. Gaynor
turned fifty years old, on October 3, 2008, his age category changed. The ALJ found that
considering Mr. Gaynor’s condition, education, work experience, and new age category,
Medical-Vocational Rule 201.14 directed a finding of disabled as of October 3, 2008.
On June 23, 2011, the Appeals Council dismissed Mr. Gaynor’s request for review
as untimely. (Tr. 4) He then filed this current action. (docket entry #2) The
Commissioner requested a remand to the Appeals Council because evidence showed that
Mr. Gaynor’s request for review was timely. (#6) After remand, the Appeals Council
denied Mr. Gaynor’s request for review on October 6, 2011, making the second ALJ
decision the Commissioner’s final decision. (Tr. 4-7)
The Honorable David L. Knowles.
Mr. Gaynor was fifty years old at the time of the second hearing. (Tr. 950) He
had a high school education and past relevant work as a cashier, stocker, plumber helper,
concrete finisher, forklift operator, and poultry worker. (Tr. 951-952, 992)
At the second hearing, Mr. Gaynor amended his disability onset date to October
14, 2005. (Tr. 948) His insured status for DIB expired on March 31, 2007. (Tr. 197) To
prevail on his claim to DIB in this action, Mr. Gaynor had to establish that he was
disabled prior to March 31, 2007. For SSI, Mr. Gaynor had to establish disability
between his amended onset date, October 14, 2005, and October 3, 2008, the date the ALJ
found that Mr. Gaynor became disabled.
Decision of the Administrative Law Judge
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. §§ 404.1520(a)-(g) (2005), 416.920(a)-(g) (2005).
The ALJ found that Mr. Gaynor had not engaged in substantial gainful activity
since his amended disability onset date. (Tr. 29) The ALJ found that Mr. Gaynor had the
following severe impairments: congenital abnormalities of both feet, including pes planus
(flat feet) and hallux abductovalgus (improper toe angulation); status post multiple
surgeries on feet; degenerative joint disease bilateral knees; major depression;
polysubstance abuse; and alcohol abuse in remission. (Tr. 29-30) The ALJ also found,
however, that Mr. Gaynor 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
(20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (Tr.
The ALJ determined that Mr. Gaynor had the residual functional capacity (“RFC”)
to perform less than the full range of light work as defined in 20 C.F.R. § 404.1567(b)
and 416.967(b). (Tr. 32-36) Specifically, the ALJ found that Mr. Gaynor could lift or
carry 20 pounds occasionally and 10 pounds frequently, stand or walk 1 hour in an eighthour workday with the use of a cane, and sit seven hours in an eight-hour workday. (Tr.
32) He could push or pull as much as he could carry, but not with his feet. Mr. Gaynor
could not use foot controls. He could not climb stairs, ramps, ladders, ropes, or scaffolds.
Mr. Gaynor could occasionally stoop, but not kneel, crouch, or crawl. Mr. Gaynor was
limited mentally to understanding, remembering, and carrying out simple job instructions,
making judgments in simple work related situations, responding appropriately to
coworkers and supervisors with only occasional contact with them, and handling minor
changes in usual work routines. (Tr. 32-33)
The ALJ determined that Mr. Gaynor’s RFC would not allow him to perform any
of his past relevant work. (Tr. 36) But after considering Mr. Gaynor’s RFC, age,
education, work experience, and the VE testimony, the ALJ determined that until
October 3, 2008, Mr. Gaynor could have performed the jobs of bench assembly worker,
surveillance system monitor, and booth cashier, all of which existed in significant
numbers in the national economy. (Tr. 37) Accordingly, the ALJ found that Mr. Gaynor
was not disabled before October 3, 2008. (Tr. 37) Considering Mr. Gaynor’s condition,
education, work experience, and new age category after he turned fifty, the ALJ found
that Medical-Vocational Rule 201.14 directed a finding of disabled as of October 3, 2008.
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.
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)).
Plaintiff’s Arguments for Reversal
Mr. Gaynor claims that the ALJ’s decision was not supported by substantial
evidence because: (1) his RFC determination is not supported by the medical record; and
(2) the VE testimony related to sedentary jobs when the ALJ found Mr. Gaynor’s RFC
limited him to light work. (#24)
Residual Functional Capacity
The ALJ bears the primary responsibility for assessing a claimant’s RFC.
Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010). It is the claimant’s burden,
however, to prove RFC. Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003). Mr.
Gaynor argues that, when determining RFC, the ALJ failed to properly consider the
medical evidence. Mr. Gaynor does not allege, however, a single limitation beyond the
extremely limited RFC found by the ALJ. (#24-1)
Mr. Gaynor testified that his knee and foot problems affected his ability to lift.
(Tr. 972) In every one of Mr. Gaynor’s previous jobs, he would stand or walk the entire
day, with no sitting besides during a break, and frequently lifted and carried objects
weighing 50 pounds or more. (Tr. 181-187) The ALJ limited Mr. Gaynor’s RFC to
lifting and carrying 20 pounds occasionally and 10 pounds frequently. (Tr. 993) The
ALJ noted to the VE that he was looking for jobs where Mr. Gaynor could grasp and
manipulate objects weighing up to 20 pounds while sitting. (Tr. 994) It does not appear
that Mr. Gaynor’s knees or feet would have any impact on his ability to grasp and
manipulate objects while sitting.
In progress notes from November and December, 2005, Mr. Gaynor stated that his
left foot was “doing fine.” (Tr. 564) In July, 2006, Mr. Gaynor had full active movement
of all extremities. (Tr. 861) In August 2006, Mr. Gaynor was ready to undergo right foot
surgery because he was pleased with the results of the surgery on his left foot. (Tr. 787)
By September, his pain was getting better. (Tr. 771) In November, Mr. Gaynor stated
that he was doing well. (Tr. 768) Mr. Gaynor cancelled his next three follow up
appointments. (Tr. 767-768)
By March, 2007, Mr. Gaynor reported that his right foot was okay, but he had
some pain if he stood on his foot for very long. (Tr. 726) In May, Mr. Gaynor had a
screw removed from his foot and was doing well, with little pain. (Tr. 732) In
December, Mr. Gaynor reported knee pain, but an examination was essentially normal,
with some degenerative changes. (Tr. 798) His pain was “fairly well controlled.” (Tr.
A state agency physician found that Mr. Gaynor could perform a full range of light
work. (Tr. 660-667) The ALJ’s RFC assessment found far more limitations than the
state agency physician found by reviewing the medical record. The ALJ also noted an
RFC form completed by completed by J.B. Pierce, M.D. (Tr. 936-938) Dr. Pierce noted
unspecified limitations in balance, walking, standing, stooping, and bending. (Tr. 937)
There was no limitation is sitting. In fact, Mr. Gaynor stated that due to his condition, he
must sit. (Tr. 169)
Mr. Gaynor testified that he could walk for about thirty minutes at a time without
any problem. (Tr. 972) The ALJ limited Mr. Gaynor to a total of one hour standing or
walking in an eight-hour work day. (Tr. 32-33) The ALJ also noted the need for a cane,
which Mr. Gaynor stated he used for balance. (#24-1, at p. 20) The ALJ found Mr.
Gaynor could occasionally stoop, but never kneel, crouch, or crawl. (Tr. 32) The ALJ
accounted for every limitation set out by Dr. Pierce, except allegations of pain, which the
ALJ found not fully credible. (Tr. 36)
Mr. Gaynor argues that he had the same conditions in 2005 that the ALJ found
disabling in 2008, and that the ALJ, therefore, should have found him disabled as of
2005. Mr. Gaynor states in his brief that the “conditions began in October 2005.” (#24-1,
at p. 17) But Mr. Gaynor testified that he had experienced the same severe foot problems
his entire life, since at least 1981, but worked through them. (Tr. 969) He stated that his
leg and foot problems first began to bother him in 1978. (Tr. 190)
Mr. Gaynor originally claimed he became unable to work in 2001, but performed
at least medium exertion jobs until 2003. (Tr. 181-183, 190) Mr. Gaynor’s impairments
never caused him to work fewer hours or change job duties. (Tr. 190) As the ALJ
explained, the primary reason for his determination that Mr. Gaynor was disabled as of
2008 was the fact that Mr. Gaynor had become older, and his new age category supported
the finding. (Tr. 37-38)
Mr. Gaynor claims that the ALJ did not account for his use of a cane. (#24-1 at p.
20) He alleges that the cane provides relief from pain and balance in walking, standing,
and arising from a sitting position. He states that “[t]his alone appears to eliminate
Gaynor from work and certainly does not support the ALJ’s RFC.” (#24-1, at p. 20)
The point is not well taken. In fact, ALJ specifically found, in his RFC
determination, that Mr. Gaynor required the use of a cane. (Tr. 32) The ALJ’s
hypothetical to the VE noted Mr. Gaynor’s ability to lift related to one hand, because
“[t]he other hand would be occupied using the cane.” (Tr. 993) The VE then asked
specifically about the use of only one hand. (Tr. 993-994) The ALJ then noted, again,
that Mr. Gaynor’s ability to carry would be limited to just one hand due to use of a cane.
(Tr. 994) The VE acknowledged this limitation. (Tr. 994) The ALJ then stated, “I know
it’s kind of a very specific limitations (sic) in ability, here, but I mean, that’s what the
facts, I think, are showing.” (Tr. 994-995) Mr. Gaynor’s attorney then questioned the
VE, but did not raise a single question regarding the use of a cane.3 (1001-1003) It is
disingenuous for counsel to claim that use of a cane eliminates Mr. Gaynor from working
The same attorney represented Mr. Gaynor both at the hearing and in this action.
(Tr. 945) (#2, at p. 3)
when the same counsel attended the hearing where the VE testified to jobs Mr. Gaynor
could perform, with use of a cane, and counsel did not question the VE about it.
Mr. Gaynor clearly suffered severe impairments. The ALJ noted these
impairments when determining that Mr. Gaynor had a very limited RFC. (Tr. 32-36)
Substantial evidence in the record, however, supports the ALJ’s RFC determination.
Vocational Expert Testimony
Mr. Gaynor also takes issue with the VE’s testimony. He notes, in italics for
apparent emphasis, that the ALJ found an RFC for light work, but the VE only provided
jobs that relate to sedentary work. (#24-1 at p. 20)
“If someone can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine dexterity or inability
to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b). The functional
capacity to perform light work includes the functional capacity to perform sedentary work
as well. Medical-Vocational Guidelines § 202.00(a); 42 U.S.C. APP., 20 C.F.R. PT. 404,
Subpt. P, App. 2.
When the ALJ found that Mr. Gaynor could perform light work, he implicitly
found that Mr. Gaynor could also do sedentary work. Mr. Gaynor did not suffer any loss
of fine dexterity that would limit such work. Regarding ability to sit, the ALJ found that
Mr. Gaynor would have to sit seven hours in an eight-hour day. Typical sedentary work
requires the ability to sit six hours in an eight-hour day.
Mr. Gaynor also claims that the “VE stated jobs [that] could be performed in
response to the hypothetical of sitting one hour per day. This is inconsistent with the
definition of sedentary work.” (#21-1 at pp. 21-22) This is simply not true. The ALJ’s
hypothetical to the VE specifically noted a requirement for sitting “seven hours or more
during an eight hour work day.” (Tr. 993) The ALJ also noted the sitting requirement in
his RFC determination (Tr. 32) and specifically told the VE that Mr. Gaynor needed “a
sedentary activity regarding the standing, and the walking, and the sitting.” (Tr. 994) As
the VE specifically stated, her response noted jobs where Mr. Gaynor could sit seven
hours a day. (Tr. 995) Mr. Gaynor’s argument on this point lacks merit.
The Court has reviewed all of the evidence in the record, including the medical
evidence, physician assessments, and the hearing transcript. There is sufficient evidence
in the record as a whole to support the Commissioner’s determination that Michael
Gaynor retained the residual functional capacity to perform jobs existing in significant
numbers in the economy until October 3, 2008.
Accordingly, this appeal is DENIED, and the Clerk of Court is directed to close
the case, this 13th day of February, 2013.
UNITED STATES MAGISTRATE JUDGE
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