Gilmore v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 17, 2013. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
DORIS MARIE GILMORE
Civil No. 1:12-cv-01076
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Doris Marie Gilmore (“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 her
applications for Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and
a period of disability under Titles II and XVI. 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 post-judgment 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 her DIB and SSI applications on August 25, 2009. (Tr. 10, 119-
129). Plaintiff alleges being disabled due to back pain, hypertension, “nerve problems,” diabetes,
and a “knot in between my right thumb and index finger.” (Tr. 150). Plaintiff alleges these
impairments cause her the following limitations:
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.”
My lower back hurts and I have pain underneath my left shoulder blade and left side
of my chest. Sometimes it hurts when I breathe. This pain is constant and does not
go away. I get angry and mad easily and I take a medication to help me keep calm.
I have to watch what I eat in order to keep my diabetes under control. My right hand
hurts due to the knot inbetween my right thumb and index finger.
Id. Plaintiff alleges an onset date of July 29, 2009. (Tr. 10, 119, 126). These applications were
denied initially and again upon reconsideration. (Tr. 47-50).
Thereafter, Plaintiff requested an administrative hearing on her applications, and this hearing
request was granted. (Tr. 66-82). Plaintiff’s administrative hearing was held on September 7, 2010
in El Dorado, Arkansas. (Tr. 23-46). Plaintiff was present at this hearing and was represented by
Denver Thornton. Id. Plaintiff and Vocational Expert (“VE”) Mack Welch testified at the hearing
in this matter. Id.
On November 28, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s
applications for DIB and SSI. (Tr. 10-18). In this decision, the ALJ determined Plaintiff met the
insured status requirements of the Act through December 31, 2014. (Tr. 12, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since July 29, 2009,
her alleged onset date. (Tr. 12, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: hypertension, coronary artery disease, cervical and lumbar degenerative disc disease,
and obesity. (Tr. 12-13, Finding 3). The ALJ determined Plaintiff’s impairments did not meet or
medically equal the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P
of Regulations No. 4 (“Listings”). (Tr. 13, Finding 4).
The ALJ determined Plaintiff was fifty-three (53) years old on her alleged disability onset
date. (Tr. 17, Finding 7). Such an individual is defined as a “person closely approaching advanced
age” under 20 C.F.R. § 404.1563(d) (2008) (DIB) and 20 C.F.R. § 416.963(d) (2008) (SSI). (Tr. 17,
Finding 7). The ALJ determined Plaintiff had at least a high school education and was able to
communicate in English. (Tr. 17, Finding 8).
In this decision, the ALJ evaluated Plaintiff’s subjective allegations and determined her RFC.
(Tr. 13-17, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to perform the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform the full range of light work
as defined in 20 CFR 404.1567(b) and 416.967(b) consisting of lifting no more than
20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds. The claimant can perform occasional stooping and crouching.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”), and the ALJ determined
Plaintiff would be unable to perform any of her PRW. (Tr. 17, Finding 6). The ALJ then evaluated
whether there was other work existing in significant numbers in the national economy that Plaintiff
could perform. (Tr. 17-18, Finding 10). The VE testified at the administrative hearing regarding this
issue. (Tr. 17-18, 42-46). Specifically, the VE testified that a hypothetical person with Plaintiff’s
limitations would able to perform the requirements of representative occupations such as production
helper worker (light, unskilled) with 500,000 such jobs in the nation, 92,000 such jobs in the region,
and 9,000 such jobs in the state. (Tr. 18). Based upon this testimony, the ALJ determined Plaintiff
had not been under a disability as defined in the Act from July 29, 2009 (alleged onset date) through
the date of his decision or through November 18, 2010. (Tr. 18, Finding 11).
Thereafter, on November 30, 2010, Plaintiff requested the Appeals Council’s review of the
ALJ’s unfavorable decision. (Tr. 117). The Appeals Council denied this request for review on June
8, 2012. (Tr. 1-3). On July 10, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on July 19, 2012. ECF No. 5. Both Parties have filed
appeal briefs. ECF Nos. 7-8. 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)
(2010); 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 her appeal brief, Plaintiff raises six arguments for reversal: (A) the ALJ improperly applied
the Grids; (B) the ALJ gave improper weight to the opinion of a state agency physician; (C) the ALJ
did not appreciate the nature and extent of her impairments; (D) the ALJ did not consider her
impairments in combination; (E) the ALJ performed an inadequate Polaski evaluation; and (F) the
ALJ provided an improper hypothetical to the VE. ECF No. 7 at 3-18. In response, Defendant
argues the ALJ’s disability determination is supported by substantial evidence in the record, and
Plaintiff’s claims should be denied. ECF No. 8. The Court will consider all of the arguments
Plaintiff has raised.
Application of the Grids
Plaintiff claims the ALJ erred by finding she did not meet the requirements of the MedicalVocational Guidelines or “Grids.” ECF No. 7 at 4-8. Specifically, Plaintiff claims the ALJ
classified her as a “person closely approaching advanced age” under 20 C.F.R. § 404.1563(d) (2008)
(DIB) and 20 C.F.R. § 416.963(d) (2008) (SSI) even though she was nearly fifty-five years old by
the time the ALJ issued his decision. Id. A fifty-five year-old would have been classified as a
person of “advanced age” Id. Plaintiff claims that if she had been classified as a person of “advanced
age,” she would have been found to be “disabled” under the Grids. Id.
In the present action, the ALJ determined Plaintiff was fifty-three years old on her alleged
disability onset date. (Tr. 17, Finding 7). At the time of the administrative hearing in this matter and
at the time of the ALJ’s disability determination, Plaintiff was fifty-four years old. (Tr. 26). At the
time of the ALJ’s disability determination, Plaintiff was approximately a month from being fifty-five
years old or a person of “advanced age.” (Tr. 7, 26).
According to the Social Security Regulations, the SSA has discretion in applying the age
categories in a “borderline situation.” See 20 C.F.R. § 404.1563(b) (DIB) and 20 C.F.R. §
416.963(b) (SSI). Such a “borderline situation” exists when a person is within a few days to a few
months of reaching an older age category. Id. In cases such as those, the Grids cannot be applied
“mechanically,” but there should be some flexibility in determining whether someone qualifies as
disabled under the Grids.
In this case, however, the Grids were not even applied. (Tr. 17-18, Finding 10). Instead, the
ALJ relied upon the testimony of a VE in determining whether Plaintiff was disabled. Id. Thus,
there is no issue of any application (much less “mechanical” application) of the Grids or of the age
categories. But see Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir. 2012) (reversing the decision of
the ALJ where the ALJ mechanically applied the Grids in a situation where the claimant was within
four months of qualifying under the next age category). Accordingly, the Court cannot find the ALJ
erred by “mechanically” applying the Grids and these age categories.
State Agency Physician
Plaintiff claims the ALJ erred in affording “significant weight” to the opinions of an in-house
physician. ECF No. 7 at 8. In his disability determination, the ALJ did state that he gave
“significant weight” to the opinions of a state agency physician, Ronald Crow, D.O. (Tr. 16).
However, the ALJ also stated his disability determination was based upon the entire record and the
medical evidence, “including the objective findings, the opinions of Dr. Crow, and by the testimony
of the claimant herself.” (Tr. 17).
Plaintiff has offered no evidence that the ALJ relied disproportionately upon the findings of
Dr. Crow or based his disability determination solely upon the findings of Dr. Crow. ECF No. 7.
Even though he was a one-time non-examining physician, as long as Dr. Crow’s findings are
consistent with the medical evidence contained in the record and the record otherwise provides
substantial evidence supporting the ALJ’s decision, the ALJ did not err in finding that his opinion
should be afforded “significant weight.” See Harvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir.
2004) (affirming the ALJ’s disability determination where the ALJ relied upon the opinions of a nonexamining physician in addition to other substantial evidence in the record). Accordingly, the Court
finds no basis for reversal on this issue.
Plaintiff claims the ALJ erred in considering her impairments, including her obesity, diabetes,
and back and neck pain. ECF No. 7 at 8-11. First, Plaintiff claims the ALJ erred in considering her
obesity. Id. In making this argument, Plaintiff claims she is “approximately 58-60 pounds
overweight for her height,” and the ALJ should have fully evaluated her obesity. ECF No. 7 at 8-9.
However, despite Plaintiff’s claim, the ALJ fully evaluated Plaintiff’s obesity and found it to be
severe. (Tr. 12-13). The ALJ also recognized Plaintiff had a BMI of 33.5 and was presumptively
obese. Id. In fully considering her obesity, the ALJ determined Plaintiff’s obesity “does not singly,
or in combination with other impairments, significantly limit or further restrict the claimant’s ability
to perform work related activity.” Id. The ALJ also restricted her RFC to light work after
considering her obesity. (Tr. 13-17, Finding 5). Based upon these facts, the Court finds the ALJ did
not err in considering Plaintiff’s obesity.
Second, Plaintiff claims the ALJ improperly considered her diabetes and improperly
determined her diabetes was “controlled by diet.” ECF No. 7 at 9. In support of her argument,
Plaintiff references several instances where her glucose levels were found to be abnormal. Id.
Despite her argument, however, Plaintiff did not allege any specific limitations due to her diabetes
at the administrative hearing in this matter. (Tr. 23-46). In her disability report, Plaintiff stated, “I
have to watch what I eat in order to keep my diabetes under control.” (Tr. 150). Impairments that
are controlled with diet and medication are not medically severe. See Wilson v. Chater, 76 F.3d 238,
241 (8th Cir.1996). Accordingly, the Court finds the ALJ did not improperly consider Plaintiff’s
Third, Plaintiff claims the ALJ improperly considered her back and neck pain. ECF No. 7
at 9-11. In support of her argument, Plaintiff references the MRI of her cervical spine dated June
17, 2012 . (Tr. 271-272). This MRI report, however, only demonstrates “some degenerative changes
of the cervical region” with “no gross spinal stenosis or gross disc herniation.” Id. Such findings
do not indicate Plaintiff’s back and neck pain preclude her from performing all work activity.
Indeed, in assessing Plaintiff’s RFC, the ALJ limited her to only performing the “full range of light
work.” (Tr. 13). Such work consists of only lifting 20 pounds at a time with frequent lifting or
carrying of objects weighing only 10 pounds. Id. Thus, the ALJ did restrict Plaintiff in her ability
to lift after considering her back and neck pain.
Combination of Impairments
Plaintiff claims the ALJ failed to consider her impairments in combination. ECF No. 7 at
11-12. Specifically, Plaintiff claims the ALJ did not properly consider the combination of her severe
impairments of hypertension, coronary artery disease, cervical lumbar degenerative disc disease, and
obesity. Id. Upon review of this claim, Plaintiff is correct that the Social Security Act requires the
ALJ to consider the combined effect of all of the claimant’s impairments without regard to whether
any such impairment, if considered separately, would be of sufficient severity. See 20 C.F.R. §
In the present action, however, the ALJ did fully analyze each of Plaintiff’s impairments.
(Tr. 12-17). The ALJ also considered those impairments in combination. Id. For instance, the ALJ
reviewed Plaintiff’s severe impairments and noted that those “impairments or combination of
impairments” did not meet the requirements of the Listings. (Tr. 13). This review of Plaintiff’s
impairments is sufficient to demonstrate the ALJ properly evaluated Plaintiff’s impairments in
combination. See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994) (holding that statements such as
“the evidence as a whole does not show that the claimant’s symptoms . . . preclude his past work
as a janitor” and “[t]he claimant’s impairments do not prevent him from performing janitorial work
. . .” sufficiently establish that the ALJ properly considered the combined effects of the plaintiff’s
Plaintiff has alleged she suffers from a number of different impairments. ECF No. 7.
However, this Court is not required to find a claimant is disabled simply because he or she has
alleged a long list of medical problems. The ALJ’s opinion sufficiently indicates that the ALJ
properly considered the combined effects of Plaintiff’s impairments. (Tr. 12-17). Thus, the Court
finds the ALJ properly considered Plaintiff’s impairments in combination. See Hajek, 30 F.3d at 92.
Plaintiff claims the ALJ improperly considered her subjective complaints. ECF No. 7 at 1216. In assessing the credibility of a claimant, the ALJ is required to examine and to apply the five
factors from Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) or from 20 C.F.R. § 404.1529 and
20 C.F.R. § 416.929.2 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to consider are
as follows: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain;
(3) the precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of
medication; and (5) the functional restrictions. See Polaski, 739 at 1322.
The factors must be analyzed and considered in light of the claimant’s subjective complaints
of pain. See id. The ALJ is not required to methodically discuss each factor as long as the ALJ
Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 require the analysis of two
additional factors: (1) “treatment, other than medication, you receive or have received for relief of your pain or other
symptoms” and (2) “any measures you use or have used to relieve your pain or symptoms (e.g., lying flat on your
back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.).” However, under Polaski and its progeny,
the Eighth Circuit has not yet required the analysis of these additional factors. See Shultz v. Astrue, 479 F.3d 979,
983 (2007). Thus, this Court will not require the analysis of these additional factors in this case.
acknowledges and examines these factors prior to discounting the claimant’s subjective complaints.
See Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). As long as the ALJ properly applies these
five factors and gives several valid reasons for finding that the Plaintiff’s subjective complaints are
not entirely credible, the ALJ’s credibility determination is entitled to deference. See id.; Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). The ALJ, however, cannot discount Plaintiff’s
subjective complaints “solely because the objective medical evidence does not fully support them
[the subjective complaints].” Polaski, 739 F.2d at 1322.
When discounting a claimant’s complaint of pain, the ALJ must make a specific credibility
determination, articulating the reasons for discrediting the testimony, addressing any
inconsistencies, and discussing the Polaski factors. See Baker v. Apfel, 159 F.3d 1140, 1144 (8th
Cir. 1998). The inability to work without some pain or discomfort is not a sufficient reason to find
a Plaintiff disabled within the strict definition of the Act. The issue is not the existence of pain, but
whether the pain a Plaintiff experiences precludes the performance of substantial gainful activity.
See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
In the present action, the ALJ fully complied with the requirements of Polaski. The ALJ
stated the Polaski factors in his opinion and then noted several reasons for discounting Plaintiff’s
subjective complaints, including the following: (1) Plaintiff contacted her prior employer after her
alleged onset date and sought to return to work which indicates she retained the capacity to return
to work; (2) Plaintiff “is able to do most, if not all, of her essential activities of daily living”; (3)
Plaintiff gave inconsistent reports of her pain and fatigue; (4) Plaintiff provided inconsistent reports
regarding her ability to drive; and (5) Plaintiff did not seek consistent medical treatment.3 (Tr. 123
Plaintiff claims her failure to seek consistent medical treatment is excused because she could not afford
that treatment. ECF No. 7 at 16. However, a failure to seek medical treatment is not excused where there is no
evidence the claimant told his or her physician that he or she could not afford the medication or treatment at issue or
17). Based upon these facts, the Court finds the ALJ’s credibility is entitled to deference. See
Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012) (holding “[b]ecause the ALJ gave good
reasons for discounting Renstrom’s credibility, we defer to the ALJ’s credibility findings”).
Hypothetical to the VE
Plaintiff argues that because the ALJ did not include all of her alleged limitations in his
hypothetical to the VE, the ALJ’s disability determination is not supported by substantial evidence
in the record. ECF No. 7 at 16-17. The ALJ provided the RFC determination that is outlined above
to the VE. (Tr. 42-46). Further, as explained above, the Court has found no basis for reversing the
ALJ’s RFC determination. Accordingly, because the ALJ provided the proper limitations in his
hypothetical to the VE, the Court finds the VE’s testimony was sufficient at Step Five of this
analysis. See Starr v. Sullivan, 981 F.2d 1006, 1008 (8th Cir. 1992) (holding “[a] vocational expert’s
response to a hypothetical question provides substantial evidence where the hypothetical question
sets forth with reasonable precision the claimant’s impairments”).
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 17th day of May 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
had been denied medication or treatment because of an inability to afford that medication or treatment. See, e.g.,
Johnson v. Bowen, 866 F.2d 274, 275-76 (8th Cir. 1989). Thus, the Court finds Plaintiff’s bare claim that she could
not afford treatment does not excuse her failure to seek such treatment.
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