Allen v. Social Security Administration
ORDER denying plaintiff's 2 request for relief and affirming the decision denying the application. The hearing scheduled for September 17, 2015, is cancelled. Signed by Magistrate Judge Beth Deere on 8/7/2015. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
ORDER AFFIRMING THE COMMISSIONER
Floyd Cornell Allen seeks judicial review of the denial of his application for
disability benefits.1 Mr. Allen has applied for disability benefits many times;2 in this
case, he maintains that he has been disabled since June 23, 2012, when he lost his job
with Tyson Poultry.3 He based disability on asthma, high blood pressure, and poor
circulation in the legs.4
The Commissioner’s decision. After considering the application, the
Commissioner’s ALJ determined that Mr. Allen had severe impairments — status post
SSA record at pp. 203 & 210 (applying on Aug. 13, 2012 and alleging disability
beginning June 23, 2012).
Id. at p. 47 (explaining he applied for disability nine times because prison doctor
told him he could get disability for asthma and high blood pressure).
Id. at p. 343 (reporting that he was terminated on June 23, 2012), p. 344 (working
for poultry company until June 2012) & p. 349 (showing he last worked for Tyson
Id. at p. 343.
left ulnar styloid fracture, hypertension, asthma, sciatica, and left leg pain5 — but that
he could do some light and sedentary work.6 Because a vocational expert identified
available work,7 the ALJ determined Mr. Allen was not disabled and denied the
After the Commissioner’s Appeals Council denied a request for review,9 the
ALJ’s decision became a final decision for judicial review.10 Mr. Allen filed this case to
challenge the ALJ’s decision.11 In reviewing the decision, the court must determine
whether substantial evidence supports the decision and whether the ALJ made a legal
Id. at p. 20.
Id. at p. 21.
Id. at 61-63.
Id. at pp. 27-28.
Id. at p. 1.
See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating, “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 # 1.
See 42 U.S.C. § 405(g) (requiring the district court to determine whether the
Commissioner’s findings are supported by substantial evidence and whether the
Commissioner conformed with applicable regulations); Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997) (“We will uphold the Commissioner’s decision to deny an applicant
Mr. Allen’s allegations. Mr. Allen contends that the ALJ over-stated his ability
to work. According to Mr. Allen, new evidence shows he had extensive impairments.
He says the Appeals Council should have asked medical experts about whether new
evidence shows he met listings 1.02 and 1.04. He also maintains that his case required a
consultative exam. He contends his primary care physician’s (PCP) medical
questionnaire deserved more weight. He faults the ALJ for not mentioning an agency
statement that his medical condition prevented him from working. For these reasons,
he argues, substantial evidence does not support the decision.13
Applicable legal principles. For substantial evidence to exist, a reasonable mind
must accept the evidence as adequate to support the decision that Mr. Allen can do
some light and sedentary work.14 “Light work involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10 pounds.”15
Sedentary work “involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools.”16 The ALJ required
disability benefits if the decision is not based on legal error and if there is substantial
evidence in the record as a whole to support the conclusion that the claimant was not
Docket entry # 12.
Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009).
20 C.F.R. §§ 404.1567(b) & 416.967(b).
20 C.F.R. §§ 404.1567(a) & 416.967(a).
incidental interpersonal contact, and environments without temperature extremes, dust,
and fumes. A reasonable mind would accept the evidence as adequate to show that Mr.
Allen could work within these limits.
Medical evidence does not establish disabling impairment. A claimant must
establish impairment by medical evidence.17 During the relevant time period, Mr.
Allen’s blood pressure fluctuated. His PCP adjusted his medications for better control
and prescribed smoking cessation.18 The PCP’s recommendations indicate that
treatment and compliance could control Mr. Allen’s blood pressure. “An impairment
which can be controlled by treatment or medication is not considered disabling.”19
42 U.S.C. § 423 (d)(5)(A) (“An individual’s statement as to pain or other
symptoms shall not alone be conclusive evidence of disability…; there must be medical
signs and findings, established by medically acceptable clinical or laboratory diagnostic
techniques, which show the existence of a medical impairment…which could
reasonably be expected to produce the pain or other symptoms alleged and
which…would lead to a conclusion that the individual is under a disability”); 20 C.F.R.
§§ 404.1508 & 416.908 (“A physical or mental impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, not only by
your statement of symptoms.”); 20 C.F.R. §§ 404.1529 & 416.929 (“[S]tatements about
your pain or other symptoms will not alone establish that you are disabled; there must
be medical signs and laboratory findings which show that you have a medical
impairment(s) which could reasonably be expected to produce the pain or other
symptoms alleged and which, when considered with all of the other evidence (including
statements about the intensity and persistence of your pain or other symptoms which
may reasonably be accepted as consistent with the medical signs and laboratory
findings), would lead to a conclusion that you are disabled.”).
SSA record at pp. 499, 523 & 533.
Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002).
Mr. Allen complained about left knee pain. Diagnostic imaging was negative,20
but there was minimal tenderness with range of motion.21 The descriptor “minimal”
suggests no disabling pain. A few weeks later, the PCP found some fluid in the
kneecap.22 The PCP prescribed an anti-inflammatory drug and a pain reliever.23 These
recommendations indicate knee pain could be controlled with treatment.
Mr. Allen later complained about pain in his left leg and low back.24 Diagnostic
imaging of the left hip showed a probable small superior anterior labral tear.25 Mr.
Allen’s orthopedist attributed no symptoms to the tear.
Diagnostic imaging of the lumbar spine showed a left foraminal disc herniation
at level L3/4, mild bone spurring at level L5/S1, and degenerative changes and mild disc
bulging at levels L2/3 an L4/5.26 The left foraminal disc herniation at level L3/4 probably
explained his leg pain because the herniation effaced the exiting nerve root and because
nerves at that level power the legs. Mr. Allen said his orthopedist was going to
SSA record at p. 534.
Id. at p. 533.
Id. at p. 534.
Id. at pp. 533-34.
Id. at p. 377.
Id. at pp. 12 & 555.
Id. at pp. 554.
operate,27 but treatment records do not mention surgery; the orthopedist recommended
a spine specialist.28 The record does not show whether Mr. Allen saw a spine specialist,
but new evidence shows he was treated with epidural steroid injections, not surgery.29
Like other treatment recommendations, the injections indicate back and leg pain could
be controlled with treatment.
Although Mr. Allen says the Appeals Council should have asked medical experts
to determine whether he met listings 1.02 (major dysfunction of a joint) or 1.04 (disorder
of the spine), both listings require an inability to ambulate effectively on a sustained
basis. Mr. Allen walked with a left-sided limp when he saw the orthopedist, but no
evidence, including the new evidence — diagnostic imaging of the left hip and lumbar
spine, and documentation of epidural steroid injections — indicates that Mr. Allen was
unable to ambulate effectively.
No need existed for a consultative physical exam. An ALJ must order a
physical exam when medical records provide insufficient medical evidence to
determine whether the claimant is disabled.30 The medical evidence here provided
Id. at p. 50.
Id. at p. 529.
Id. at pp. 570 & 581.
Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994); 20 C.F.R. §§ 404.1517 &
416.917 (“If your medical sources cannot or will not give us sufficient medical evidence
sufficient evidence to determine whether Mr. Allen was disabled. Mr. Allen based his
claim on asthma, high blood pressure, and poor circulation in his legs. PCP treatment
records address asthma and high blood pressure, but document no complaints about
circulation in the legs. He later complained about leg pain. The orthopedist’s treatment
records address leg pain. Neither the PCP’s nor orthopedist’s records show disabling
Mr. Allen did not comply with treatment recommendations. A claimant’s
failure to follow medical advice without good reason bars him from obtaining disability
benefits.31 The PCP warned Mr. Allen about the effects of his cigarette smoking since
2006.32 Mr. Allen had asthma and high blood pressure, but he continued to smoke.
about your impairment for us to determine whether you are disabled or blind, we may
ask you to have one or more physical or mental examinations or tests.”).
Tome v. Schweiker, 724 F.2d 711, 713-14 (8th Cir. 1984) (“The Secretary’s
regulations provide that a claimant who fails to treat a remediable condition without
good reason is barred from entitlement to benefits.”); 20 C.F.R. §§ 404.1530 & 416.930
(“In order to get benefits, you must follow treatment prescribed by your physician if
this treatment can restore your ability to work.”).
SSA record at p. 446 (advised on Jan. 3, 2006 to stop smoking two packs per
day). See id. at pp. 504, 516, 523 & 533.
Medical literature also links smoking to chronic pain.33 Mr. Allen complains
about chronic back and leg pain. During the hearing, he implied that he had stopped
smoking in April 2013,34 but treatment records show he smoked in July 2013.35 The
inconsistency between his representation at the hearing and treatment records
The PCP’s medical questionnaire deserved no more weight. The regulations
provide for controlling weight if a treating physician’s opinion is “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence,”36 but the ALJ may discount an
Toby N. Weingarten, Yu Shi, Carlos B. Mantilla, W. Michael Hooten & David O.
Warner, Smoking and Chronic Pain: A Real-but-Puzzling Relationship, 35-36 Minn. Med.,
Mar. 2011; Rebecca J. Frey, Low Back Pain, 4 The Gale Encyclopedia of Med. 2646 (4th
ed.) (people with low back pain should stop smoking); Julia Barrett, Sciatica, 5 The Gale
Encyclopedia of Med. 3865 (4th ed.) (“Cigarette smoking may also predispose people to
SSA record at pp. 55-56.
Id. at p. 525.
20 C.F.R. §§ 404.1527 & 416.927.
unsupported opinion.37 The PCP reported numerous limitations,38 but treatment notes
do not support the report. For example, the PCP reported limitations with using the
neck, but treatment records document no complaints about the neck. The ALJ gave the
questionnaire some weight. Mr. Allen says the ALJ should have specified the portions
of the questionnaire he credited, but the ALJ is not required to discuss every piece of
evidence.39 The decision indicates that the ALJ accepted the limitations flowing from
asthma,40 and rejected other reported limitations as unsupported exaggerations.
The agency never determined Mr. Allen was disabled. Mr. Allen implies that
the agency once determined he was disabled, but that mischaracterizes the record. This
charge flows from the following statements in the agency’s initial denial of the claim:
“The evidence shows your condition is serious now and prevents you from working.
Perkins v. Astrue, 648 F.3d 892, 897-98 (8th Cir. 2011) (“ALJ may discount or
even disregard the opinion of a treating physician…where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions”); Prosch v. Apfel,
201 F.3d 1010, 1013-14 (8th Cir. 2000) (“[A]n ALJ may grant less weight to a treating
physician’s opinion when that opinion conflicts with other substantial medical evidence
contained within the record.”).
SSA record at pp. 535-38.
Wheeler v. Apfel, 224 F.3d 891, 896 n.3 (8th Cir. 2000) (ALJ’s failure to describe
claimant’s entire medical history does not mean ALJ disregarded certain evidence);
Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) ( “[A]n ALJ is not required to discuss
every piece of evidence submitted.”).
SSA record at p. 538 (“Has asthma so dusty, chemical environment would be
However, your condition is expected to improve. We have determined that your
condition is not expected to remain severe enough for 12 months in a row to keep you
from working.”41 These statements lack probative value in determining whether a
claimant is disabled. To be disabling under social security law, an impairment must
prevent the claimant from working for at least 12 continuous months.42 The statements
only mean that an impairment may have prevented Mr. Allen from working for less
than 12 months.
Vocational evidence supports the decision. The ALJ determined that Mr. Allen
could not perform his past work. If a claimant with a non-exertional impairment shows
he cannot do his past work, the ALJ consults a vocational expert to determine whether
work exists that the claimant can do.43 Here, the ALJ asked a vocational expert about
light and sedentary work involving occasional climbing, stooping, crouching, kneeling
and crawling.44 The vocational expert identified available jobs, but the ALJ’s statement
Id. at pp. 116 & 119.
See 42 U.S.C. § 1382c(a)(3)(A) (specifying duration requirement for disability
benefits); 20 C.F.R. § 404.1505(a) (“The law defines disability as the inability to do 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.”).
20 C.F.R. §§ 404.1520 & 416.920.
SSA record at pp. 61-63 (including occasional climbing, stooping, crouching,
kneeling and crawling in hypothetical questions).
about Mr. Allen’s ability to work omits the postural limitations. According to Mr.
Allen, the omission undermines the decision. The medical evidence supports postural
limitations, but the omission provides no basis for relief because the vocational expert
identified available sedentary work45 and postural “activities are not usually required in
Mr. Allen complains about the omission of limitation flowing from a left wrist
injury. The injury occurred in February 2006.47 Since then, he worked full-time, using
his wrist. In March 2012, the PCP thought Mr. Allen might have some carpal tunnel
syndrome and prescribed a wrist splint.48 Mr. Allen returned to work. An impairment
“that was not disabling during working years and has not worsened cannot be used to
prove present disability.”49 The vocational evidence shows work exists that Mr. Allen
Id. at pp. 62-63 (identifying assembler, laundry folder, and ticker seller as light
jobs and optical goods assembler, lens inserter, and order clerk as sedentary jobs).
SSR 96-9p, Pol’y Interpretation Ruling Titles II & XVI: Determining Capability to Do
Other Work--Implications of a Residual Functional Capacity for Less Than a Full Range of
SSA record at 408.
Id. at p. 507.
Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994). See also Dixon v. Sullivan, 905
F.2d 237, 238 (8th Cir. 1990) (impairments are disabling where claimant worked with
them for years without any worsening of condition).
could do, regardless of whether such work exists where he lives, whether a job vacancy
exists, or whether he would be hired if he applied for work.50
Conclusion. Substantial evidence supports the ALJ’s decision. The ALJ made no
legal error. For these reasons, the court DENIES the request for relief (docket entry # 2)
and AFFIRMS the decision denying the application. The hearing scheduled for
September 17, 2015, is cancelled.
Dated this 7th day of August, 2015.
UNITED STATES MAGISTRATE JUDGE
42 U.S.C. § 1382c(a)(3)(B).
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