Ellis v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on September 26, 2011. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
MARK A. ELLIS
Civil No. 1:10-cv-01054
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Mark A. Ellis (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying his application for
Disability Insurance Benefits (“DIB”) and a period of disability under Title II of the Act. The parties
have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this
case, including conducting the trial, ordering the entry of a final judgment, and conducting all postjudgment proceedings. ECF No. 5.1 Pursuant to this authority, the Court issues this memorandum
opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed his disability application on February 24, 2004. (Tr. 47-50, 170).
In his application, Plaintiff alleged he was disabled due to an impairment and limitation in his left
shoulder. (Tr. 73). Plaintiff alleged an onset date of June 17, 2003. (Tr. 48-50). This application
was denied initially and again on reconsideration. (Tr. 27, 29).
The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript pages
for this case are referenced by the designation “Tr.”
Thereafter, Plaintiff requested an administrative hearing on his application, and this hearing
request was granted. (Tr. 40). An administrative hearing was held on May 16, 2005 in El Dorado,
Arkansas. (Tr. 141-158). On August 17, 2005, subsequent to this hearing, the ALJ entered an
unfavorable decision on Plaintiff’s application. (Tr. 11-18). Plaintiff then appealed the ALJ’s
unfavorable decision to the United States District Court for the Western District of Arkansas (El
Dorado Division), and the Honorable U.S. District Judge Jimm L. Hendren reversed and remanded
Plaintiff’s case for further administrative development and for a determination of whether Plaintiff
was at least entitled to a closed period of disability. (Tr. 199-210).
On June 18, 2007, the SSA held a second administrative hearing in Plaintiff’s case. (Tr. 226264). At this administrative hearing, Plaintiff was present and was represented by counsel, Denver
L. Thornton. Id. Plaintiff, Vocational Expert (“VE”) Tyra Watts, and Medical Expert (“M.E.”) Dr.
Jay Lipke testified at this hearing. Id. On the date of this hearing, Plaintiff was forty-three (43) years
old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c) (2008), and had obtained
a high school diploma. (Tr. 229-230).
On July 26, 2007, the ALJ entered a partially favorable decision awarding Plaintiff disability
benefits from June 17, 2003 until August 1, 2004. (Tr. 170-175). In this decision, the ALJ
determined Plaintiff met the disability insured status requirements of the Act at all times relevant to
his decision. (Tr. 174, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) during the period from June 17, 2003 through August 1, 2004. (Tr. 174,
Finding 2). The ALJ determined the following regarding Plaintiff’s severe impairments:
The medical evidence establishes that the claimant has the following severe
impairment: left shoulder injury and subsequent rotator cuff repair with excision of
an axillary ganglion cyst (Exhibits 2F-4F, B-1F, and B-3F through B-5F), but that he
does not have an impairment or combination of impairments listed in, or medically
equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
(Tr. 174, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 174, Findings 4-6). The ALJ made these evaluations based upon two time periods: (1) from June
17, 2003 to August 1, 2004 and (2) after August 1, 2004. Id. The ALJ found Plaintiff’s assertions
concerning his ability to work for the period from June 17, 2003 until August 1, 2004 were credible.
(Tr. 174, Finding 4). The ALJ also found that during this time period, Plaintiff had significant
limitations in his capacity to lift, carry, balance, reach, and push and pull. (Tr. 174, Finding 5).
Finally, the ALJ found that, during this time period, Plaintiff was unable to perform even sedentary
work and was disabled. (Tr. 174, Finding 8; Tr. 175, Findings 12-13).
After August 1, 2004, the ALJ found Plaintiff’s subjective allegations were not entirely
credible, and Plaintiff retained the following RFC:
[L]ift and/or carry no more than 20 pounds occasionally and 10 pounds frequently, no
restrictions in the ability to sit, stand and/or walk, no pushing, pulling, overhead
reaching or handling with the left arm/shoulder, no work around heights, moving
machinery, or temperature extremes, and never climb or balance (20 CFR §
(Tr. 174, Finding 6).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff would be
unable to perform his PRW. (Tr. 174, Finding 7). The ALJ also found, however, that a hypothetical
person with Plaintiff’s limitations would be able to perform other work existing in significant
numbers in the national economy. (Tr. 173). Specifically, the ALJ determined such a hypothetical
person could perform other work as a routing clerk (unskilled, light) with 2,500 such jobs existing
in Arkansas and 800,000 such jobs existing in the nation and as a storage rental clerk with 2,000 such
jobs existing in Arkansas and 500,000 such jobs existing in the nation. Id. Based upon this finding,
the ALJ determined that, after August 1, 2004, Plaintiff retained the capacity to perform other work
existing in significant numbers in the national economy. (Tr. 175). Thereafter, the ALJ determined
Plaintiff was not entitled to disability benefits after August 1, 2004. Id.
On July 30, 2007, Plaintiff requested that the Appeals Council review the ALJ’s partially
favorable decision. See 20 C.F.R. § 404.968. The Appeals Council declined to review the ALJ’s
disability determination. (Tr. 162). On August 2, 2010, Plaintiff filed the present appeal. ECF No.
1. The Parties consented to the jurisdiction of this Court on September 1, 2010. ECF No. 5. Both
Parties have filed appeal briefs. ECF Nos. 7, 11. This case is now ready for decision.
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as there is substantial evidence in the record that supports the Commissioner’s decision, the
Court may not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome or because the Court would have decided the case differently. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the
findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the burden of
proving his or her disability by establishing a physical or mental disability that lasted at least one year
and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160
F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a
“physical or mental impairment” as “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), 1382(3)(c). A plaintiff must show that his or her
disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See
42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses the
familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged
in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly
limits the claimant’s physical or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is disabled without regard to age, education, and work experience);
(4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past
relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
In his appeal brief, Plaintiff raises one argument. ECF No. 7 at 5-9. Plaintiff claims the ALJ
erred by disregarding the opinion of his treating orthopedist. Id. Specifically, Plaintiff claims his
treating orthopedist, Dr. Jay Lipke, M.D., found he had severe limitations due to a left shoulder injury
and was disabled beyond August 1, 2004. Id. In response, Defendant argues Plaintiff’s medical
records do not establish he was disabled beyond August 1, 2004, and Defendant argues the ALJ’s
disability determination is supported by substantial evidence in the record and should be affirmed.
ECF No. 11.
As an initial matter, the ALJ found Plaintiff to be disabled from his alleged onset date of June
17, 2003 through August 1, 2004. (Tr. 170-175). The ALJ found Plaintiff was not disabled after
August 1, 2004. Id. Accordingly, for purposes of this action, the relevant time period begins on
August 1, 2004, and this Court will only review the medical records dated after August 1, 2004.
Upon a review of these records dated after August 1, 2004, this Court finds Plaintiff has
demonstrated he experiences limitations due to a left shoulder injury but remains able to perform a
wide range of light work with left shoulder restrictions. (Tr. 103-104, 140, 225). Indeed, it is
important to note Dr. Lipke himself testified at the second administrative hearing in this matter, and
his testimony is entirely consistent with the ALJ’s RFC determination. (Tr. 260-261). During this
hearing, he testified that Plaintiff could carry up to 20 pounds with both hands and only had
restrictions with his left shoulder. Id. Dr. Lipke testified as follows:
Okay, so if he used both his left and right hand–and, that, that’s what the, the,
the questionnaire was really intended to answer is his ability to lift in general
–with, with the problems he’s having?
I tell you, with, with the two handed lifting, then these, these would be
applicable, because, you know, his, his left arm is, is weak and painful, but his
right arm is normal, but you know, these are always kind of a guess, when.
I, I understand, but your best guess based on your treatment of Mr. Ellis, using
both hands, or using his dominant hand, how much can he lift?
Well, unless–I guess, I guess I can up it one to say 11, 11 to 20 pounds, I
Okay, that, that’s with either using his right hand or using his left hand to
Okay, and to carry. How much would he be able to carry?
Using–yeah, using his dominant hand and either as using his left hand as an
assistive device, or not using it at all.
Okay, well let’s go ahead let’s go up to 11 and 20 pounds, then.
And one, one other question, both Counsel and I had the same question on
this. On his reaching, pushing, and pulling. That’s on page three, item five.
Item five, okay.
You have never, is that referring to his left?
No, that’s just his left, yes.
Okay, so his right–there’s no restrictions on his right?
(Tr. 260-261) (emphasis added).
In the second administrative opinion in this case, the ALJ determined Plaintiff retained the
ability to perform light work (up to 20 pounds) with restrictions on his left shoulder: “no pushing,
pulling, overhead reaching or handling with the left arm/shoulder.” (Tr. 174, Finding 6). Thus, this
Court finds the ALJ did properly consider the opinion of Dr. Lipke that Plaintiff could only lift up to
20 pounds with left shoulder restrictions. In fact, the ALJ adopted that opinion.
Turning to Plaintiff’s medical records, this Court finds they are also consistent with the ALJ’s
RFC determination. Plaintiff was seen by Dr. Lipke on August 10, 2004. (Tr. 104). During that
appointment, Dr. Lipke found Plaintiff complained of “stiffness, weakness, and pain.” Id. Dr. Lipke,
however, also noted that Plaintiff had “improved strength in the shoulder” and “good deltoid
strength.” Id. Dr. Lipke examined Plaintiff on September 7, 2004. (Tr. 103). During this
appointment, Dr. Lipke found Plaintiff was “reaching the end of his healing period.” Id. He also
found Plaintiff could return to light work even with his impairments: “In the future I don’t feel he will
be able to return to work in construction but could do lighter duty desk work or possibly drive a
Dr. Lipke examined Plaintiff on May 3, 2005. (Tr. 140). During that appointment, Dr. Lipke
recognized Plaintiff did have “persistent shoulder problems,” and Dr. Lipke also noted that he did not
“feel he [Plaintiff] will be able to run to construction work.” Id. Instead, Dr. Lipke reiterated
Plaintiff’s ability to perform light activity, and he “encouraged him [Plaintiff] regarding vocational
rehab for training in a less vigorous line of employment.” (Tr. 140).
Thereafter, on February 20, 2007, Dr. Lipke evaluated Plaintiff’s injured shoulder. (Tr. 225).
Dr. Lipke found Plaintiff had a history of “pain and weakness in his shoulder,” and based upon his
assessment of Plaintiff’s shoulder impairment, found Plaintiff “should be considered totally disabled.”
Id. Dr. Lipke made this finding regarding Plaintiff’s permanent disability based upon his brief
evaluation of Plaintiff and the fact Plaintiff has “persistent pain and weakness” and had been unable
“to work over the past four years.” Id. There are no further treatment records in the transcript from
Apart from Dr. Lipke’s findings that Plaintiff was “disabled,”2 Dr. Lipke’s medical records
and findings are consistent with the ALJ’s RFC determination. Indeed his own testimony is consistent
with the ALJ’s RFC determination. (Tr. 260-261). Further, Plaintiff’s medical records demonstrate
that after August 1, 2004, his shoulder condition had improved, and he had “improved strength in the
shoulder” and “good deltoid strength.” (Tr. 104). Accordingly, this Court finds no basis for reversing
the ALJ’s disability determination that Plaintiff was not disabled after August 1, 2004.
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating
these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 26th day of September, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
Dr. Lipke found Plaintiff was “disabled” during his appointments on August 10, 2004 and February 20,
2007. (Tr. 104, 225). Such a finding of “disability” is not binding on the SSA. See House v. Astrue, 500 F.3d 741,
745 (8th Cir. 2007) (holding “[a] treating physician’s opinion that a claimant is disabled or cannot be gainfully
employed gets no deference because it invades the province of the Commissioner to make the ultimate disability
determination.”). Thus, this Court declines to adopt Dr. Lipke’s findings regarding Plaintiff’s status as “disabled.”
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