Freeman v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on June 30, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Tonya E. Freeman
Civil No. 10-2094
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration
Factual and Procedural Background
Plaintiff, Tonya E. Freeman, appeals from the decision of the Commissioner of the Social
Security Administration denying her claim for a period of disability, disability insurance benefits
(“DIB”) and supplemental security income benefits (“SSI”), pursuant to §§ 216(I) and 223 of
Title II of the Social Security Act, 42 U.S.C. §§ 416(I) and 423(d), and § 1602 of Title XVI, 42
U.S.C. § 1381a, respectively (collectively, “the Act”). 42 U.S.C. §405(g).
Plaintiff protectively filed her DIB and SSI applications on December 8, 2005, alleging a
disability onset date of September 30, 2004. T. 14. Allegations included heel spurs, hip and leg
pain, scoliosis and high blood pressure. T. 184. At the time of the onset date, Plaintiff was 41
years old and possessed an eighth grade education. T. 22, 67. She had past relevant work as a
cafe/restaurant worker. T. 63.
Plaintiff’s applications were denied at the initial and reconsideration levels. T. 33, 37,
42. At Plaintiff’s request, an administrative hearing was held in Fort Smith, Arkansas, on
November 2, 2007. T. 255-274. Plaintiff was present at this hearing and represented by
counsel. Vocational Expert Jim Spraggins also testified. Administrative Law Judge (“ALJ”)
David T. Hubbard issued a decision on November 30, 2007, finding that Plaintiff was not
disabled within the meaning of the Act. T. 14. On June 11, 2010, the Appeals Council found no
basis to reverse the ALJ’s decision. T.4. Therefore, the ALJ’s November 30, 2007, decision
became the Commissioner’s final administrative decision.
The evidence showed and the ALJ determined that Plaintiff had the following severe
impairments: mood disorder, back disorder, obesity and bilateral calcaneal tendinitis (heel spurs).
In March, 2006, Plaintiff told Dr. Vanderburg that she was depressed but she declined to
start on antidepressant medication. T. 212. Plaintiff participated in two consultative mental
exams: Patricia J. Walz, Ph.D (August 9, 2006) and Robert L. Spray, Jr., Ph.D (June 14, 2007) .
D. Walz diagnosed Plaintiff with Dysthymia vs. major depression, recurrent moderate without
psychosis and Dr. Spry with major depression, recurrent, severe without psychosis1. T. 178, 220.
The Essential feature of Dysthymic disorder is a chronically depressed mood that occurs for most of the
day more days than not for at least two years. Individuals with Dysthymic disorder describe their mood as “sad” or
“down in the dumps. Diagnostic and statistical manual of mental disorders 300.4 (American Psychiatric
Association, ed., 4th ed. 2000 ). Dysthymic disorder and Major Depressive Disorder are differentiated based on
severity, chronicity, and persistence. In Major Depressive Disorder, the depressed mood must be present for most of
the day, nearly every day, for a period of at least two weeks. Id. At 374.
At the time of the hearing and according to medical records submitted after the hearing, Plaintiff
was taking Fluoxetine for depression as prescribed by James Saunders, P.A. T. 262, 248-254.
Plaintiff sought treatment at Sparks Regional Medical Center emergency room for lower
back pain twice in 2005. T. 139, 164. Both times images of the lumbar spine showed mild
levoscoliosis2 with no spondylosis3.
Plaintiff is 5'7" and morbidly obese4. Her recorded weight is as follows:
February 16, 1993:
March 1, 1993:
December 8, 1995:
April 3, 1996:
October 3, 1997:
Levoscoliosis is a slight left curvature of the spine. http://www.levoscoliosis.org/ (Last visited June 28,
Spondylosis is arthritis that affects the spine. http://www.spineuniverse.com/conditions/spondylosis/what-
spondylosis (last visited June 23, 2011).
Anyone who is more than 100 pounds overweight or who has a Body Mass Index greater than or equal to
40 kg/m2 is considered morbidly obese. http://www.nlm.nih.gov/medlineplus/ency/article/007297.htm (Last visited
June 24, 2011).
January 22, 1998:
March 2, 1998:
October 27, 1998
June 22, 1999:
July 23, 1999:
June 7, 2000
January 23, 2001
February 2, 2001
April 18, 2002:
January 21, 2005:
February 8, 2005:
February 24, 2005:
January 26, 2006:
March 9, 2006:
November 2, 2007:
Plaintiff was first diagnosed with heel spurs5 in February, 1993 by Dr. Dodson, podiatrist,
A common cause of heel pain is the heel spur, a bony growth on the underside of the heel bone. The spur,
visible by X-ray, appears as a protrusion that can extend forward as much as half an inch. W hen there is no
indication of bone enlargement, the condition is sometimes referred to as "heel spur syndrome." Heel spurs result
from strain on the muscles and ligaments of the foot, by stretching of the long band of tissue that connects the heel
and Dr. Travis confirmed the diagnosis by x-ray. T. 125. Dr. Travis was not able to say whether
her condition was due to a work-related injury or her weight. Id. She was seen again by Dr.
Travis the following month, treated with medication for her pain and presumably received relief,
as her next complaint was not until April 2002. T. 125, 110. At that time Dr. Baker counseled
Plaintiff about her weight and prescribed pain medication. T. 110. In January 2005, Plaintiff
was seen by Dr. Vanderberg, who noted that her heel spurs did not appear to be horribly
traumatic, just rather painful for her. T. 155. In March of 2005 he described her foot pain as
secondary to morbid obesity. T. 212. Plaintiff sought treatment at Cooper Clinic’s Foot Health
Center in October 2005. T. 235-236. There, Plaintiff was dispensed medication , instructed in
foot wear and stretching exercises and counseled about the potential for surgical intervention. Id.
Plaintiff did not return for her scheduled followup appointment with Dr. Magrini. T. 236. In
March 2006, Plaintiff again saw Dr. Vanderburg, who cited morbid obesity as the cause of her
foot pain and noted that there was nothing that could be done for her until she lost some weight.
T. 209. In August of 2007, Physician Assistant Saunders prescribed pain medication for
Plaintiff’s foot pain and advised her to lose weight.
At the hearing, the Plaintiff testified that she has had trouble with her feet for the last 15
and the ball of the foot, and by repeated tearing away of the lining or membrane that covers the heel bone. These
conditions may result from biomechanical imbalance, running or jogging, improperly fitted or excessively worn
shoes, or obesity. American Podiatric Medical Association, Heel Pain,
px (last visited June 22, 2011).
years, beginning with pain on the backs of her heels that goes up the backs of her legs. T. 264.
Standing makes her pain worse and she soaks her feet in hot water and elevates her feet for relief
of pain and swelling. Id. She keeps her feet elevated about half of the day and does very little
activity around the house. T. 265. On a scale of 1 - 10 her pain level is 9. T. 266. Her blood
pressure is under control and as a side effect of her water pills for high blood pressure she goes to
the bathroom every 20 minutes at home. T. 268.
The Court’s role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576,
583 (8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a
reasonable mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275
F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)).
In determining whether evidence is substantial, the Court considers both evidence that detracts
from the Commissioner’s decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d
433, 435-36 (8th Cir. 2000) (citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If,
after conducting this review, “it is possible to draw two inconsistent positions from the evidence
and one of those positions represents the [Secretary’s] findings,” then the decision must be
affirmed. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d
299, 301 (8th Cir. 1995)).
To be eligible for disability insurance benefits, a claimant has the burden of establishing
that he is unable to engage in any substantial gainful activity due to a medically determinable
physical or mental impairment that has lasted, or can be expected to last, for no less than twelve
months. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A).
The Commissioner applies a five-step sequential evaluation process to all disability claims: (1)
whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a
severe impairment that significantly limits his physical or mental ability to perform basic work
activities; (3) whether the claimant has an impairment that meets or equals a disabling
impairment listed in the regulations; (4) whether the claimant has the Residual Functional
Capacity (“RFC”) to perform his past relevant work; and (5) if the claimant cannot perform his
past work, the burden of production then shifts to the Commissioner to prove that there are other
jobs in the national economy that the claimant can perform given his age, education, and work
experience. Pearsall, 274 F.3d at 1217; 20 C.F.R. § 404.1520(a), 416.920(a). If a claimant fails
to meet the criteria at any step in the evaluation, the process ends and the claimant is deemed not
disabled. Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004).
The ALJ determined that the claimant met the insured status requirements through
December 31, 2007, that she had not engaged in substantial gainful activity since September 30,
2004, and that she had severe impairments of mood disorder, back disorder, obesity and bilateral
calcaneal tendonitis. T. 16. The ALJ found, however, that the claimant did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix . The ALJ found that Plaintiff’s
allegations regarding her limitations were not fully credible, and that the Plaintiff retained the
residual functional capacity to perform sedentary work. T.17.
Plaintiff filed this claim contending that the ALJ: (1) erred as to RFC; (2) erred as to
credibility; and (3) failed to properly evaluate obesity. See Pl.’s Br. 8, 12, 16.
The ALJ found that the Plaintiff had the residual functional capacity to perform sedentary
work. T.17. Specifically, he found that she was able to lift a maximum of 10 pounds and sit for
a total of 6 hours and stand and/or walk for a total of 2 hours each in an 8-hour workday with
normal breaks. From a mental standpoint, she was able to perform routine work with superficial
contact incidental to work with public and co-workers. Such work has non-complex simple
instructions which are learned by rote with few variables and requires little judgment and
supervision is concrete, direct, and specific. Id.
A claimant’s RFC is the most she can do despite her limitations. 20 C.F.R. §
404.1545(a)(1). The ALJ determines a claimant’s RFC based on “all relevant evidence,
including medical records, observations of treating physicians and others, and the claimant’s own
descriptions of his or her limitations.” Masterson, 363 F.3d at 737. The Eighth Circuit has
stated that “a claimant’s residual functional capacity is a medical question.” Lauer v. Apfel, 245
F.3d 700, 704 (8th Cir. 2001). Thus, although the ALJ bears the primary responsibility for
determining a claimant’s RFC, there must be “some medical evidence” to support the ALJ’s
determination. Eichelberger, 390 F.3d at 591; Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000).
The plaintiff accurately describes the situation when she asserts that, “Simply put, there is just
not anything in the file as to her physical limitations.” Pl.’s Br. 11. Nowhere in the 127 pages of
medical records submitted to the ALJ by the Plaintiff does any treating physician place any
limitations on Plaintiff’s activities. Even the cane she uses to walk was not prescribed by any of
the doctors she saw over the years. T. 58. The court recognizes that a treating doctor’s silence
on the claimant’s work capacity does not in itself constitute substantial evidence supporting an
ALJ’s functional capacity determination when the doctor was not asked to express an opinion on
the matter and did not do so. Johnson v. Astrue, 628 F.3d 991, 991 (8th Cir. 2011); Pates-Fire v.
Astrue, 564 F.3e 935, 943 (8th Cir. 2009). The court takes note of the fact that Plaintiff’s
December 21, 2005, Function Report and testimony at her 2007 hearing indicated that she
currently spends about an hour and a half a day on her feet performing household chores,
including housekeeping, shopping, cooking and caring for her granddaughter. T. 53, 73, 74, 75,
265. She described her ability to lift 40 pounds and later 10-15 pounds, but no physician ever
placed her under a lifting restriction. T. 57, 77. This is consistent with the residual functional
capacity assigned by the ALJ.
See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (The
ALJ's finding that plaintiff was limited to sedentary work is itself a significant limitation, and
reveals that the ALJ did give some credit to the opinion evidence).
Medical records provided by the Plaintiff show that she sought treatment for foot and/or
back pain from six physicians and one physicians assistant since 19936. Not one of these
providers placed restrictions on Plaintiff’s activities. It is clear to this court that the volume and
thoroughness of the medical records provided constitute a full and complete record from which
the ALJ made his determination of RFC. The ALJ did not err in failing to order a consultative
Robert Baker, D.O.-Van Buren Family Medical Center ;A.L. Travis, M.D.; Marshall J. Newcity, M.D.
–Sparks ER; Robert Fraser, M.D.–Sparks ER; E. Jason Venderburg, M.D. –UAMS; Kent Magrini, DPM–Cooper
Clinic; James Saunders, P.A.–Northside Clinic
exam. While "[a]n ALJ should recontact a treating or consulting physician if a critical issue is
undeveloped," "the ALJ is required to order medical examinations and tests only if the medical
records presented to him do not give sufficient medical evidence to determine whether the
claimant is disabled." Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (quotation, alteration,
and citation omitted); 20 C.F.R. §§ 404.1519a(b) and 416.919a(b) (2006). The ALJ is not
required to act as Plaintiff’s counsel. See Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994)(ALJ
not required to function as claimant’s substitute counsel, but only to develop a reasonably
complete record; see also Shannon v. Chater, 54 F.3d 484, 488 (8th cir. 1995)(“reversal due to
failure to develop the record is only warranted where such failure is unfair and prejudicial”).
With respect to mental impairments, The ALJ found that Plaintiff’s August 9, 2006,
mental status examination by Dr. Patricia Walz did not result in any limitations with respect to
concentration, persistence or pace. T. 19. In his June 14, 2007, mental consultative exam, Dr.
Robert L. Spray, Jr. noted that Plaintiff’s slow pace and long reaction times suggest that she
would have difficulty working in a job setting where she was required to complete tasks in a
timely manner. T. 221. Dr. Walz’s report constitutes substantial evidence for the ALJ to have
determined that Plaintiff’s mental impairment resulted in mild restrictions of activities of daily
living, moderate difficulties in maintaining social functioning, and moderate difficulties in
maintaining concentration, persistence, or pace. T. 21. See Travis v. Astrue, 477 F.3d 1037,
1041-42 (8th Cir. 2007) (stating “[i]t is the ALJ’s duty to resolve conflicts in the evidence,” and
we do “not reverse merely because evidence also points to an alternate outcome”).
The ALJ considered Plaintiff’s obesity, and explained that her "medical records certainly
bear out the fact that the claimant’s obesity limits her physical activity and is a contributing
factor to her medical condition." T. 21. The phrase used by the ALJ comes directly from
Partee v. Astrue, 638 F.3d 860, 863 (8th Cir.2011), which found that the ALJ adequately
considered the claimant’s obesity. The ALJ adopted the opinions of Dr. Travis, Dr. Baker and Dr.
Vanderburg who were aware of the claimant's obesity. See Prochaska v. Barnhart, 454 F.3d 731,
736-37 (7th Cir. 2006) (deciding, when an ALJ adopts the opinion of a doctor aware of an
obesity claim, the ALJ's failure to consider the claim explicitly is harmless error). The ALJ
adequately considered Plaintiff’s obesity. Here, the ALJ considered the impact of Plaintiff’s
obesity on her musculoskeletal system by limiting her to the lowest exertional level of sedentary
work. This ability is borne out by Plaintiff’s Function Report, her testimony and the medical
records, none of which indicate that Plaintiff is disabled or has limitations greater than those
determined in the ALJ’s decision.
Social Security Ruling 96-7p clarifies the two-step process by which the ALJ must
evaluate symptoms, including pain, to determine their limiting effects on a claimant. See, also 20
C.F.R. §§ 404.1529 and 416.929. First, the ALJ must establish whether the claimant's medically
determinable medical and psychological conditions could reasonably be expected to produce the
claimant's symptoms. SSR 96-7p. Once the ALJ finds that the conditions could be expected to
produce the alleged symptoms, the ALJ must evaluate the intensity, persistence, and severity of
the symptoms to determine the extent to which they prevent the claimant from performing basic
work activities. Id. Whenever the intensity, persistence or severity of the symptoms cannot be
established by objective medical evidence, the ALJ must assess the credibility of any statements
made by the claimant to support the alleged disabling effects. The Ruling sets forth the factors
that the ALJ must consider in assessing the claimant's credibility, emphasizing the importance of
explaining the reasons supporting the credibility determination. The Ruling further directs that
the credibility determination must be based on a consideration of all of the evidence in the case
As part of the determination of RFC, after reviewing the medical records, the ALJ
determined that Plaintiff’s medically determinable impairments could reasonably be expected to
produce her alleged symptoms, but that her statements concerning the intensity, persistence and
limiting effects of these symptoms were not entirely credible. T. 20. An ALJ may not disregard
a claimant’s subjective complaints solely because the objective medical evidence does not fully
support them. See Polaski v. Heckler, 739 F.2d 1320, 1332 (8th Cir. 1984). The ALJ is required
to take into account the following factors in evaluating the credibility of a claimant’s subjective
complaints: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the
pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating
factors; and (5) functional restrictions. See Id.
The ALJ must make express credibility
determinations and set forth the inconsistencies in the record which cause him to reject the
plaintiff’s complaints. Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir. 2004). However, the
ALJ need not explicitly discuss each Polaski factor. Strongson v. Barnhart, 361 F.3d 1066, 1072
(8th Cir. 2004). The ALJ only need acknowledge and consider those factors before discounting a
claimant’s subjective complaints. Id. The issue is not whether Plaintiff suffers from any pain,
but whether her pain is so disabling as to prevent the performance of any type of work.
McGinnis v. Chater, 74 F.3d 873, 874 (8th Cir. 1996). In Polaski, the Eighth Circuit set forth the
following pain standard:
The adjudicator may not disregard a claimant’s subjective
complaints solely because the objective medical evidence does not
fully support them. The absence of an objective medical basis
which supports the degree of severity of subjective complaints
alleged is just one factor to be considered in evaluating the
credibility of the testimony and complaints. 739 F.2d at 1322.
Questions of credibility are the province of the ALJ as trier of fact in the first instance.
Chamberlain v. Shalala, 47 F.3d 1489, 1493 (8th Cir. 1995). The ALJ need not discuss every
Polaski factor if he discredits Plaintiff’s credibility and gives good reason for doing so. If the
ALJ gives good reasons for finding Plaintiff not credible, then the court should defer to his
judgment when every factor is not explicitly discussed. Dunahoo v. Apfel, 241 F.3d 1033, 1038
(8th Cir. 2001).
Here, the ALJ examined the Plaintiff’s complaints and testimony in light of the objective
medical evidence and the seven factors set out in 20 CFR 404.1529 (c) and noted at least seven
discrete reasons he found her not to be entirely credible:
(1) Plaintiff has received medical treatment and been prescribed medications which have
been relatively effective in controlling her symptoms as along as she has remained compliant. T.
20. The ALJ noted that the Plaintiff takes medicine for depression and that her high blood
pressure is under control. Id. Impairments that can be controlled effectively with medication are
not disabling for the purpose of determining eligibility for SSI benefits. See, e.g., Brown v.
Barnhart, 390 F.3d 535, 540 (8th Cir. 2004); Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir.
1987); see also Odle v. Heckler, 707 F2d 439, 440 (9th Cir. 1983) (affirming a denial of benefits
and noting that the claimants were responsive to medication.) Warre v. Commissioner of Social
Sec. Admin, 439 F.3d 1001, 1006 (9th Cir. 2006).
(2) Plaintiff used a cane to walk but one was never prescribed for her by any physician.
(3) Dr. Magrini counseled Plaintiff on appropriate shoe wear, prescribed the antiinflammatory medication Celebrex, suggested a significant stretching program, aggressive
physical therapy, night splints and possible surgical intervention. There was no evidence that
Plaintiff followed through with the doctor’s recommendation and she did not keep her scheduled
followup appointment. T. 21. In addition to the results of objective medical tests, an ALJ may
properly consider the claimant’s noncompliance with a treating physician’s directions. Holley v.
Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001) (failure to stop smoking, drinking alcohol, and
adhere to diet); Riggins v. Apfel, 177 F.3d 689, 693) (failure to take prescription pain
medications); Comstock v. Chater, 91 F.3d 1143, 1146-47 (8th Cir. 1996) (failure to seek
significant medical treatment); Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997) (failure to
curb smoking); Choate v. Barnhart, 457 F.3d 865, 872 (8th Cir. 2006) (failure to show up for
tests and examinations and take prescribed medications).
(4) Plaintiff acknowledged working with her impairment during her 25 + years as a cook,
which implied that she could currently perform work activities. T. 21.
(5) The medical records revealed that Plaintiff was repeatedly advised to lose weight for
persistent foot problems, but that she never complied with that medical advice. T. 21. Plaintiff
correctly states that failure to follow medical treatment due to lack of funds is not
noncompliance. Pl.’s Br. at 13. It is for the ALJ in the first instance to determine appellant's
motivation for failing to follow prescribed treatment or seek medical attention. Benskin v. Bowen,
830 F.2d at 884 n. 1 (8th Cir. 1987). Here, Plaintiff was repeatedly warned by her doctors to lose
weight in order to receive relief from foot pain. Generally, if a claimant does not follow a
prescribed treatment plan without a good reason, he or she will not be found disabled. 20 C.F.R.
§ 416.930(b) (1984). While the record indicates that Plaintiff was released from Dr. Baker’s
clinic for inability to pay, it also notes that she was subsequently seen at AHEC on a grant. T.
155. See Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir.1992) (rejecting claim of financial
hardship where there was no evidence that claimant attempted to obtain low cost medical
treatment or that claimant had been denied care because of her poverty); Hutsell v. Sullivan, 892
F.2d 747, 750 n. 2 (8th Cir.1989) (noting that "lack of means to pay for medical services does not
ipso facto preclude the Secretary from considering the failure to seek medical attention in
credibility determinations.") (internal quotations omitted).
(6) Plaintiff reported no difficulty with self care and that she spent most of her day
watching her four year old granddaughter. She reported being able to drive on familiar routes
and shop independently. She is able to help with household tasks. T. 21.
(7)No physician placed any functional restrictions on her activities that would preclude
sedentary work with the previously mentioned restrictions. T. 22.
Plaintiff contends that the ALJ simply stated there were inconsistencies and discounted
Plaintiff’s complaints. Pl.’s Br. 15. This is clearly not the case, given the seven examples of
inconsistencies which the ALJ set out in his opinion and which are repeated above.
The ALJ may discount the claimant’s allegations of pain when he explicitly finds them
inconsistent with daily activities, lack of treatment, demeanor, and objective medical evidence.
Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996) (noting the mere fact that working may cause
pain or discomfort does not require a finding of disability.) See Haley v. Massanai, 258 F.3d
742, 748 (8th Cir. 2001) (holding that inconsistencies between subjective complaints of pain and
daily living patterns diminish credibility.) Because the ALJ’s credibility determination was
supported by good reasons and substantial evidence, it is entitled to deference. See Cox. v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
Capabilities and Employment Opportunities
Plaintiff complains of the inadequacy of the hypothetical question put to the Vocational
Expert in her discussion of the RFC, but the Court chooses to address the issue separately here.
Pl.’s Br. 8. The court finds substantial evidence to support the ALJ’s conclusions at steps one
through four of the five-step analysis, but departs from the ALJ’s analysis at step five.
If, as he did here, the ALJ determines the social security disability claimant cannot
resume her prior occupation, the burden shifts to the Social Security Commissioner at step five to
show the claimant is capable of performing other work. Pates-Fires v. Astrue, 564 F.3d 935,.
942 (8th Cir. 2009)(internal citations omitted).
Jim Spraggins, senior vocational rehabilitation counselor for Arkansas Rehabilitation
Services, testified at Plaintiff’s hearing. T. 270-273. After introducing himself and identifying
Plaintiff’s past work rating,7 Mr. Spraggins testified as follows:
ALJ: If you would list for me some unskilled, light jobs.
VE: Unskilled, light jobs, fast food worker. Arkansas has approximately
12,000. This area is considered west Arkansas by the employment office
and I have approximately 2200, United States has approximately 600,000.
The individual could be a production line assemblier (sic). Arkansas has
approximately 11,000, western Arkansas has approximately 1700. The
United States has approximately 583,000. The person could work in
Cafe/restaurant cook--DOT rating medium; SVP 5: skilled. “None of these skills would transfer outside of
the cooking, food service area.” T. 271.
poultry production as an eviscerater or a deboner. Arkansas has
approximately 15,000. This area has approximately 1700. The United
States has approximately 100,000.
ALJ: List for me some light jobs–I mean sedentary jobs.
VE: Sedentary, the individual could be a small production machine
operator. Arkansas has approximately 4000. Western Arkansas has
approximately 500. The United States has approximately 500,000. The
person could be a small product assemblier (sic). Arkansas has
approximately 3500, western Arkansas approximately 450, United States
approximately 140,000. The person could be a food order clerk. Arkansas
has approximately 2000. Western Arkansas has approximately 400. The
United States has approximately 250,000. T. 271-272.
The ALJ found that Plaintiff was not disabled because she was able to perform other
work. He based his determination largely on the testimony of the VE. Tr. 23. Ordinarily, the
Commissioner can rely on the testimony of a VE to satisfy its burden of showing that the
claimant can perform other work. Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008); Porch v.
Chater, 115 F.3d 567, 571 (8th cir. 1997); see also Guilliams v. Barnhart, 393 F.3d 798,
804)(8th Cir. 2005)(stating that “[t]he commissioner may rely on a vocational expert’s response
to a properly formulated hypothetical question to show that jobs that a person with the claimant’s
RFC can perform exist in significant numbers”.) The operative phrase here is “properly
formulated hypothetical question.” The ALJ did not actually ask a question; instead he instructed
the VE to list unskilled, light and sedentary jobs. T. 271. He did not advise the VE of any of the
deficiencies he found in his RFC.8
“After consideration of the entire record undersigned finds that the claimant has the residual functional
capacity to perform sedentary work. Specifically, she is able to lift a maximum of 10 pounds and sit for a total of 6
hours and stand and/or walk for a total of 2 hours each in an 8-hour workday with normal breaks. From a mental
standpoint, she is able to perform routine work with superficial contact incidental to work with public and coworkers. Such work has non-complex simple instructions which are learned by rote with few variables and requires
little judgment and supervision is concrete, direct, and specific.” T. 17.
When framing hypothetical questions to a vocational expert in disability benefits
proceedings, the ALJ must comprehensively describe the mental and physical limitations on
claimant's ability to function, so that vocational expert will be able to assess whether employment
exists for person with such disabilities. Wroblewski v. Califano, 609 F.2d 908 (8th Cir. 1979).
The ALJ must likewise consider, in combination, both physical and psychological impairments,
since “only when all claimed impairments are considered by the vocational expert within the
scope of a propounded hypothetical can he or she make a proper analysis as to claimant’s ability
to engage in significant gainful activity. Id. at 940.
Here, the ALJ did not even “captur(e) the consequences” of Plaintiff’s disabilities. Howe
v. Astrue, 499 F.3d 835 (8th Cir. 2007). In his examination of the VE, the ALJ skipped ahead to
his conclusion that Plaintiff could perform light, sedentary work and simply instructed the VE to
confirm this without describing a single limitation he had found. In Simonson v. Schweiker, 699
F.2d 426 (8th Cir. 1983) the Court expressed that the hypothetical questions posed to vocational
experts should precisely set out the claimant’s particular physical and mental impairments.
Simonson at 430. In that case the Court found that the ALJ had erred in asking the expert to
“assume I’d find that claimant has the exertional capacity for light or sedentary work.” Id.
“Hypothetical questions harboring this assumption have been found defective in a long line of
cases.” Id. Here, the ALJ did just that: he asked the VE to assume.
Oddly enough, the ALJ’s decision recites the appropriate step five process and even
professes to have followed it:
If the claimant had the residual capacity to perform the full range
of sedentary work, a finding of “not disabled” would be directed by
Medical-Vocational Rules 201.25. However, the claimant’s ability
to perform all or substantially all of the requirements of this level
of work has been impeded by additional limitations. To determine
the extent to which these limitations erode the unskilled light
occupational base, the Administrative Law Judge asked the
vocational expert whether jobs exist in the national economy for an
individual with the claimant’s age, education, work experience and
residual functional capacity. T.23.
The transcript of the hearing does not bear out the ALJ’s conclusory statement. He did
not list for the VE a single one of the limitations he proposed in his RFC. The response to a
fatally defective question cannot constitute substantial evidence. Simonson at 430. Upon
remand, the Commissioner should present proper vocational testimony on Plaintiff’s ability to
engage in any substantial gainful employment activity.
Accordingly, the court concludes that the ALJ’s decision is not supported by substantial
evidence, and therefore, the denial of benefits to the plaintiff should be reversed and this matter
should be remanded to the Commissioner for further consideration of Plaintiff’s capabilities and
employment opportunities pursuant to sentence four of 42 U.S. C. §405(g).
ENTERED this 30th day of June, 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE
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