Thompson v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on November 24, 2015. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
FLEMING GEORGE EDWARD THOMPSON
CIVIL NO. 2:14-cv-02213-MEF
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
Plaintiff, Fleming George Edward Thompson, brings this action pursuant to 42 U.S.C. §
405(g), seeking judicial review of a decision of the Commissioner of the Social Security
Administration (Commissioner) denying his claim for supplemental security income (SSI) under the
provisions of Title XVI of the Social Security Act (Act). In this judicial review, the Court must
determine whether there is substantial evidence in the administrative record to support the
Commissioner’s decision. See 42 U.S.C. § 405(g).
I. Procedural Background
Plaintiff protectively filed an application for SSI on May 4, 20121, alleging disability since
January 5, 2010, due to “degenerative spinal disorder; depression.” (T. 137-143, 186-188, 190) His
application was denied initially on August 1, 2012 and upon reconsideration on November 6, 2012.
(T. 79-82, 88-89) Plaintiff requested an administrative hearing (T. 90-92), and the hearing was held
on May 1, 2013, before the Hon. Ronald L. Burton, Administrative Law Judge (ALJ). (T. 40-75)
Plaintiff was present and represented by her attorney, M. Abbie Rice. (T. 40, 42)
Plaintiff filed an earlier application for SSI in June 2010, which application was denied
at the initial review. (T. 42, 132-136) The prior denial of that application is administratively final
and not at issue in this case. The ALJ did not explicitly or constructively reopen that application
when considering Plaintiff’s application filed May 4, 2012. (T. 27-34)
Plaintiff was 56 years old at the time of the hearing. (T. 43) He obtained a high school
education through a GED program completed in 1986. (T. 43, 161) He had past relevant work
(“PRW”) as a security guard from November 2006 to April 2009 and as a commercial cleaner from
May 2009 to May 2010. (T. 46-47, 147-149, 168, 204) Plaintiff stopped working on January 5, 2010.
By a written Decision dated July 3, 2013, the ALJ found Plaintiff had the following severe
impairment: musculoskeletal disorder (back disorder). (T. 29) After reviewing all of the evidence
presented, the ALJ determined Plaintiff’s impairment did not meet or equal the level of severity of
any impairment in the Listing of Impairments. (T. 29-30) The ALJ found Plaintiff had the residual
functional capacity (“RFC”) to perform light work, except as follows:
“The claimant is able to frequently lift and/or carry ten pounds and
occasionally twenty pounds, sit for a total of six hours in an eight hour
workday, and stand and/or walk for a total of six hours in an eight hour
workday. The claimant is able to perform semi-skilled work involving simple
tasks, few work changes, and limited use of judgment.” (T. 30)
The ALJ noted that Plaintiff performed the work of a security guard for a sufficient time to
learn the tasks of the job and earned income qualifying the work as substantial gainful activity; and,
in comparing Plaintiff’s RFC with the physical and mental demands of such work, the ALJ
determined that Plaintiff could perform his PRW as a security guard as such work is actually and
generally performed. (T. 33) The ALJ then found Plaintiff had not been under a disability as defined
by the Act during the relevant time period. (T. 33)
Plaintiff requested a review of the hearing decision by the Appeals Council (T. 20-22), which
request was denied on August 27, 2014 (T. 1-3). Plaintiff then filed this action on October 6, 2014.
(Doc. 1) This case is before the undersigned pursuant to the consent of the parties. (Doc. 5) Both
parties have filed appeal briefs (Docs. 8, 9), and the case is ready for decision.
II. Applicable Law
This Court’s role is to determine whether substantial evidence supports the Commissioner’s
findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial evidence is less than
a preponderance but it is enough that a reasonable mind would find it adequate to support the
Commissioner’s decision. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). The Court must
affirm the ALJ’s decision if the record contains substantial evidence to support it. Blackburn v.
Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). In other
words, 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 Court must affirm the
ALJ’s decision. Id.
A claimant for Social Security disability benefits has the burden of proving his disability by
establishing a physical or mental disability that has lasted at least one year and that prevents him
from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th
Cir. 2001); see also 42 U.S.C. § 1382c(a)(3)(A). The Act defines “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.
§ 1382c(a)(3)(D). A plaintiff must show that his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require her to apply a five-step sequential evaluation process
to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful
activity since filing his or her claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given his or her age, education, and experience. See 20 C.F.R. § 416.920(a)(4). Only if he reaches
the final stage does the fact finder consider the Plaintiff’s age, education, and work experience in
light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th
Cir. 1982); 20 C.F.R. § 416.920(a)(4)(v).
Plaintiff argues four points on appeal: (1) that the ALJ erred at step two by not including
finding additional severe impairments; (2) that the ALJ failed to fully and fairly develop the record;
(3) that the ALJ’s RFC assessment is not supported by substantial evidence; and, (4) that the ALJ’s
determination that Plaintiff is not disabled is not supported by substantial evidence. (Doc. 8, pp. 1520)
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs and the ALJ’s opinion, and are repeated here only to the extent
A. Step Two Analysis
At step two of the sequential analysis, the ALJ is required to determine whether a claimant’s
impairments are severe. 20 C.F.R. § 416.920(a)(4); Simmons v. Massanari, 264 F.3d 751, 754 (8th
Cir. 2001). An impairment is not severe if it amounts only to a slight abnormality that would not
significantly limit the claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §§
416.920(c), 416.921; Bowen v. Yuckert, 482 U.S. 137 (1987)(O'Connor, J., concurring). If the
impairment would have no more than a minimal effect on a claimant’s ability to work, then it does
not satisfy the requirement of step two. Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007). It is the
claimant’s burden to establish that an impairment or combination of impairments are severe.
Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). Severity is not an onerous requirement for
the claimant to meet, Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989), but it is also not a
toothless standard, and courts have upheld on numerous occasions the Commissioner’s finding that
a claimant failed to make this showing. See, e.g., Page v. Astrue, 484 F.3d at 1043-44; Dixon v.
Barnhart, 353 F.3d 602, 605 (8th Cir. 2003); Simmons, 264 F.3d at 755; Gwathney v. Chater, 104
F.3d 1043, 1045 (8th Cir. 1997); Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996). A mere
diagnosis is not sufficient to prove disability, absent some evidence to establish a functional loss
resulting from that diagnosis. Buckner v. Astrue, 646 F.3d 549, 556-57 (8th Cir. 2011).
A “severe impairment is defined as one which ‘significantly limits [the claimant’s] physical
or mental ability to do basic work activities.’” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006)
(quoting 20 C.F.R. § 404.1520(c)). The impairment must result from anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques. A physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by the claimant’s statement of
symptoms. 20 C.F.R. §§ 416.908, 416.927.
Plaintiff urges that the ALJ should have also determined that several other conditions were
severe impairments, including both of his lower extremities, both of his shoulders, and his neck.
(Doc. 8, p. 15) The argument lacks evidentiary support. The record does not establish that the
injuries to Plaintiff’s feet, shoulders, and neck resulted in severe functional impairments.
1. Left Lower Extremity
To begin, the injury to Plaintiff’s lower left extremity, an avulsion fracture between his talus
and fibula, occurred in October 1989 (T. 549, 555), which was over 21 years before his alleged onset
of disability on January 5, 2010. The ALJ mentioned the injury, noting in his Decision that Plaintiff’s
physician at the time, Tom Phillip Coker, M.D., released Plaintiff to return to work on February 15,
1990, and that Dr. Coker concluded that Plaintiff had no permanent partial physical impairment as
a result of the injury and “could seek employment at any type of activity.” (T. 561-562) The ALJ
further noted that Plaintiff then began work loading river barges. (T. 31) See Goff v. Barnhart, 421
F.3d 785, 792 (8th Cir. 2005) (claimant was able to work for years with the same impairments she
now claimed were disabling). Additionally, a consultative examination performed during the relevant
period did not reveal any significant physical limitations to Plaintiff’s left lower extremity.
Substantial evidence of record supports the ALJ’s finding that any impairment resulting from the
remote injury to Plaintiff’s left lower extremity was not severe.
2. Right Lower Extremity
Regarding his right lower extremity, Plaintiff suffered a calcaneus fracture in September 1995
when he slipped due to rain and his right heel was caught between two barges. (T. 499) Plaintiff was
treated for this injury through 1999, and on June 16, 1999 his treating physician, Stephen Heim,
M.D., an orthopaedist, reported that Plaintiff had reached maximum medical improvement, and that
his options included “. . . basically living with this, altering his activity, using his analgesics, antiinflammatories, arch supports, and continuing with some modicum of pain, versus a subtalar fusion
which would not increase his motion.” (T. 464) On November 10, 1999, Dr. Heim opined that “[h]is
calcaneus fracture is going to cause him some subtalar arthritis and some difficulty in the future,”
“[t]his is a rather difficult injury to that extremity,” and taking that into account, plus the leg length
inequality, Dr. Heim rated permanent physical impairment at 28% to the foot, 20% to the lower
extremity, and 8% to the body as a whole. (T. 472) Nonetheless, Plaintiff successfully returned to
work after this injury, and the ALJ noted that he worked as a security guard and a janitor from
November 2006 through January 2010 at the substantial gainful activity level. (T. 31, 148-149, 168)
Notably, Plaintiff did not list this impairment in his application for SSI benefits. (T. 190) See Smith
v. Shalala, 987 F.2d 1371, 1375 (8th Cir. 1993) (claimant did not allege disabling impairment in his
application); Dunahoo v. Apfel, 241 F. 3d 1033, 1039 (8th Cir. 2001) (fact that claimant did not
allege the impairment in her application for disability benefits is significant, even if the evidence of
the impairment was later developed). A consultative examination during the relevant period also
revealed no significant physical limitations to Plaintiff’s right lower extremity. (T. 398-400)
The medical evidence shows that after Plaintiff’s release from care for this injury in 1999 he
did not complain of right ankle pain and seek treatment for it again until after the ALJ’s Decision
on July 3, 2013, and even then, his x-ray findings were largely unremarkable and he was noted to
be taking only over-the-counter ibuprofen. (T. 578-581, 584) On June 26, 2014, nearly a year after
the ALJ’s Decision, Plaintiff was sent by his counsel to see James Buie, M.D. “to get a disability
exam.” (T. 9) See Page v. Astrue, 484 F.3d 1040, 1043-44 (8th Cir. 2007) (encounters with doctors
were “linked primarily to obtain benefits, rather than to obtain medical treatment”); Shannon v.
Chater, 54 F.3d 484, 486 (8th Cir. 1995). Upon examination, Dr. Buie reported “[t]he patient at this
point has some early changes involving his feet and has a little bit of pes planus on the left,” but
“[f]rankly, both of these could be problems but neither one of these are disabling.” (T. 10)
Substantial evidence of record supports the ALJ’s finding that any residual effects from this
remote injury to Plaintiff’s right lower extremity did not significantly limit Plaintiff’s ability to
perform work-related activities.
3. Left Shoulder
Plaintiff first complained of left shoulder pain after vacuuming stairs at work in January
2010. (T. 313) He was initially diagnosed with rotator cuff tendonitis and was started on a short
course of oral steroids and medication for pain. (T. 315) Plaintiff later gave a different history of the
injury, reporting that he injured his left shoulder while moving furniture at work. (T. 369) He was
sent to physical therapy “which he participated in to some extent.” (T. 365) An MRI/arthrogram of
Plaintiff’s left shoulder performed on March 3, 2010 showed a probable partial thickness inferior
surface tear of the supraspinatus at its insertion, some fluid in the subdeltoid bursa which may reflect
bursitis, mild acromioclavicular arthrosis, with no obvious glenoid labral tear. (T. 284) On March
29, 2010, Plaintiff’s doctor noted good range of motion of the left shoulder, that the MRI/arthrogram
“was essentially normal,” and his impression was “[l]eft shoulder pain, resolved.” (T. 333) The
consultative examiner who saw Plaintiff during the relevant period found Plaintiff’s range of motion
of the left shoulder to be within normal limits, and no significant physical limitations were found.
(T. 398-400) The medical evidence of record simply does not support Plaintiff’s contention that the
impairment to his left shoulder is severe.
4. Right Shoulder
After injuring his left shoulder at work in January 2010, Plaintiff reported an injury to his
right shoulder when he lifted a large bag of trash out of a bin at work. (T. 346) He advised that his
pain was moderate, and the degree of swelling was noted to be minimal. (T. 345) X-ray of his
shoulder was within normal limits, with normal alignment, no fracture, and normal soft tissue. (T.
347, 349) Plaintiff was diagnosed as having a shoulder sprain and Ultram was prescribed for pain.
(T. 347-348) An orthopaedic evaluation on January 26, 2010 revealed full range of motion of the
right shoulder and “almost superficial tenderness in the right trapezial area and right rhomboid area.”
(T. 373) On March 8, 2010, Plaintiff admitted “his right shoulder is fine now” (T. 357), and on
March 29, 2010, Plaintiff did not have any complaints specific to his right shoulder (T. 333). The
consultative examiner who saw Plaintiff during the relevant period found Plaintiff’s range of motion
of the right shoulder to be within normal limits, and no significant physical limitations were found.
(T. 398-400) The medical evidence of record does not support Plaintiff’s argument that his right
shoulder sprain, suffered two years before the relevant period, resulted in a severe impairment.
5. Neck and Cervical Spine
While being treated for his left shoulder injury in January 2010, Plaintiff complained of pain
in his neck and down his left arm into his hand, with numbness in his 4th and 5th fingers. (T. 313)
In describing the injury to his right shoulder, Plaintiff said he “felt something pull” up into his neck.
(T. 347) His examination on January 21, 2010 showed moderate tenderness in his right shoulder and
on the right side of his neck, but his back exam was normal. (T. 346-347) Cervical spine x-rays
showed degenerative disc disease at the C3-C4 level with anterior osteophytic changes, but no
compression fractures or spondylolisthesis were seen. (T. 348) On March 29, 2010, Plaintiff’s
orthopaedist suggested a c-spine work-up (T. 334), and on April 9, 2010 an MRI of Plaintiff’s
cervical spine was done. It showed degenerative changes of the cervical spine, including some mild
spinal canal stenosis, some mild neural foraminal stenosis (moderate at C3-C4 and at C5-C6 on the
left), osteophyte formation, a left paracentral disc bulge at C5-C6, right paracentral disc bulge at C6C7, and a small right paracentral disc herniation at T2-T3 (T. 343-344). Plaintiff was seen by
Christopher G. Covington, M.D., an orthopaedist, on April 22, 2010 for evaluation of neck and left
upper extremity pain. Upon examination, Plaintiff had no tenderness of the cervical spine, but he had
decreased range of motion with bilateral rotation, decreased grip strength in the left hand, and
weakness of the extensor group of the left upper extremity; the right upper extremity and lower
extremities bilaterally were normal. Dr. Covington’s impression was cervical spondylosis, cervical
stenosis, and cervical herniated nucleus pulposus. (T. 521) Plaintiff was released by the workers’
compensation physician, D. Allen Lukasek, D.O., to follow-up with his primary care physician for
treatment of his current condition. (T. 519)
In a visit with Rodney McDonald, M.D. on April 26, 2010, Plaintiff reported neck pain and
stiffness, but no musculoskeletal examination was performed. (T. 304-305) In a return visit to Dr.
McDonald on May 17, 2010, Plaintiff advised that he had been off work for five months on workers’
compensation; he was released by the workers’ comp doctor on May 4; and, “[h]e now needs a
release to return to work.” (T. 308) It is documented that “[h]e is doing well,” but that “[p]atient is
trying to get on disability.” (T. 308) Physical findings on exam were normal. (T. 310) Dr. McDonald
advised Plaintiff that his clinic did not do disability evaluations, and did not do chronic narcotic
management, but that they could try non-narcotic treatment of his pain including measures like
physical therapy. Plaintiff was to notify Dr. McDonald if he desired a trial of non-narcotic
management of his neck symptoms. (T. 310) On May 18, 2010, Dr. McDonald issued two return to
work slips for Plaintiff: in one slip he confirmed seeing Plaintiff on April 26, 2010, and he stated,
“[h]e was not taken off work and was clear to return to work without restriction 4/27/10;” and, in
the other slip, he confirmed seeing Plaintiff on May 17, 2010, and he stated, “[h]e was not taken off
work by me & he is ok to return to work without restriction 5/18/10.” (T. 338-339)
The record does not show any more complaints of neck pain until January 9 and May 13,
2013 (T. 573, 576), but during a subsequent appointment on May 23, 2013, a physical examination
of Plaintiff’s neck was noted to be normal (T. 577). Further, during the consultative examination
performed by Chester L. Carlson, D.O. on June 4, 2012, Plaintiff was found to have a normal range
of motion in all of his joints, including his cervical spine; no muscle spasm was noted; neurological
findings were normal; no sensory abnormalities were noted; normal gait and coordination were seen;
and, Plaintiff was documented to have normal hand and finger functions including 100% grip
strength. (T. 398-399) Dr. Carlson reported “[n]o significant physical limitations found on exam.”
The ALJ’s determination that Plaintiff’s neck and cervical pain does not constitute a severe
impairment is supported by substantial medical evidence.
B. Development of the Record
Plaintiff asserts that the ALJ erred by failing to fully and fairly develop the record in this
case. More specifically, he argues that the ALJ should have ordered an orthopaedic examination
given the evidence of Plaintiff’s feet and ankle problems, “especially since the General Physical
Examiner didn’t even evaluate Mr. Thompson’s feet.” (Doc. 8, p. 16) The Court disagrees.
The ALJ has a duty to develop the record fully and fairly to ensure his decision is an
informed decision based on sufficient facts. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
2004). However, the ALJ is not required to function as the claimant’s substitute counsel, but only
to develop a reasonably complete record. Whitman v. Colvin, 762 F.3d 701, 707 (8th Cir. 2014)
(quoting Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994). 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). Reversal due to failure to develop
the record is only warranted where such failure is unfair or prejudicial. Haley v. Massanari, 258 F.3d
742, 749 (8th Cir. 2001). A claimant must show that the ALJ’s further development of the record
would have made a difference in his case or could have changed the outcome. Onstead v. Shalala,
999 F.2d 1232, 1234 (8th Cir. 1993).
The record in this case, nearly 600 pages in length, contained sufficient medical evidence
from which the ALJ could make an informed decision regarding Plaintiff’s claimed disability.
Regarding Plaintiff’s left lower extremity, and as discussed in Section A(1) above, the ALJ noted
that Plaintiff’s physician, Dr. Coker, released Plaintiff to return to work on February 15, 1990, and
that Dr. Coker concluded Plaintiff had no permanent partial physical impairment as a result of the
injury and “could seek employment at any type of activity.” (T. 31, 561-562) Regarding Plaintiff’s
lower right extremity, and as discussed in Section A(2) above, the medical evidence shows that after
Plaintiff’s release from care for this injury in 1999 he did not complain of right ankle pain and seek
treatment for it again until after the ALJ’s Decision on July 3, 2013, and even then, his x-ray
findings were largely unremarkable and he was noted to be taking only over-the-counter ibuprofen.
(T. 578-581, 584)
Plaintiff asserts that Dr. Carlson, who performed a physical consultative examination on June
4, 2012, did not even evaluation his feet. The record shows otherwise. Dr. Carlson’s report lists those
impairments that Plaintiff advised him of, including neck pain, lower back problems, depression, and
coronary artery disease (T. 396), but no history was given for problems with Plaintiff’s feet. This is
consistent with Plaintiff’s failure to complain of right ankle pain again until after the ALJ’s
Decision. Further, Dr. Carlson’s report evidences that he did conduct an examination of Plaintiff’s
extremities, including both knees and ankles, tested Plaintiff for gait and coordination, and tested
Plaintiff for limb function. These tests all revealed normal results, with the exception that Plaintiff
could not walk on heel and toes very well. (T. 399) Upon such examination and testing, Dr. Carlson
concluded that Plaintiff had no significant physical limitations. (T. 400) This examination and report,
along with the other medical evidence of record, provided the ALJ with sufficient medical evidence
to determine whether the claimant is disabled, and the ALJ was not obligated to obtain an additional
The Court also finds no showing by Plaintiff that the ALJ’s alleged failure to fully and fairly
develop the record resulted in any prejudice or unfair treatment. Plaintiff was sent by his counsel to
see an orthopaedic specialist, Dr. James Buie, on June 26, 2014 to get a disability exam. (T. 9) Upon
examination, Dr. Buie concluded that Plaintiff had “some early changes involving his feet and has
a little bit of a pes planus2 on the left,” and while “both of these could be problems,” “neither one
of these are disabling.” (T. 10) (Emphasis added.)
C. RFC Determination
Plaintiff next argues that the ALJ’s RFC assessment is not supported by substantial evidence
on the record as a whole. (Doc. 8, pp. 17-20)
RFC is the most a person can do despite that person’s limitations, and is assessed using all
relevant evidence in the record. 20 C.F.R. § 416.945(a)(1). This includes medical records,
observations of treating physicians and others, and the claimant’s own descriptions of limitations.
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from symptoms
such as pain are also factored into the assessment. 20 C.F.R. § 416.945(a)(3). A claimant’s RFC is
a medical question, therefore, an ALJ’s determination concerning a claimant’s RFC must be
supported by some medical evidence that addresses the claimant’s ability to function in the
workplace. Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). The ALJ is required to specifically set
forth a claimant’s limitations and to determine how those limitations affect his RFC. Lewis v.
Barnhart, 353 F.3d 642, 646 (8th Cir. 2003).
Plaintiff points to a non-examining consultative physician, David L. Hicks, M.D., who on
August 2, 2010 opined that “RFC is medium with only occasional overhead reaching.” This opinion,
however, was rendered in connection with Plaintiff’s first application for SSI on June 11, 2010, and
was given nearly two years before the relevant period beginning May 4, 2012 with the filing of
Plaintiff’s current SSI application. See 20 C.F.R. § 416.335; Cruse v. Bowen, 867 F.2d 1183, 1185
“Flat feet.” www.mayoclinic.org/diseases-conditions/flatfeet/basics/definition/con20023429 (last accessed November 20, 2015).
(8th Cir. 1989). Thus, medical evidence dated years before the relevant period is of limited relevance
to Plaintiff’s claim and cannot serve as the basis for Plaintiff’s entitlement to SSI benefits. See
Kennedy v. Astrue, 2008 WL 4756392 (W.D. Ark. Oct. 28, 2008). There is no evidence of ongoing
complaints of difficulty reaching overhead by Plaintiff to his treatment providers during the relevant
Following Plaintiff’s application for SSI benefits on May 4, 2012, Dr. Carlson performed his
general physical examination on June 4, 2012 and found “no significant physical limitations.” (T.
400) After reviewing Plaintiff’s medical history, a non-examining consultative physician, Alice M.
Davidson, M.D., completed a Physical Residual Functional Capacity Assessment concluding that
Plaintiff could perform medium exertional level work. (T. 403-410) Notably, Dr. Davidson’s RFC
assessment did not include any overhead reaching limitation. Dr. Davidson’s physical RFC opinion
was reviewed and affirmed by Charles Friedman, M.D. on November 6, 2012. (T. 441) The ALJ
commented on Dr. Davidson’s RFC assessment, but in giving Plaintiff’s testimony the benefit of the
doubt, the ALJ determined that Plaintiff is limited to light work. (T. 32) Substantial medical
evidence supports the ALJ’s RFC finding without any overhead reaching limitation.
Plaintiff also contends that the ALJ’s RFC determination is undermined by evidence that
Plaintiff cannot stand and/or walk six hours in an eight hour workday. (Doc. 8, p. 17) Plaintiff again
relies on decades old treatment records to support his position. Citing Dr. Coker’s opinion letter of
March 1, 1990, Plaintiff refers to Dr. Coker’s comment that “[i]t would obviously be helpful if he
did not spend as much time on his feet,” but Plaintiff ignores the rest of Dr. Coker’s sentence, “...
but I don’t think that’s imperative.” (T. 562) As discussed in Section A above, Plaintiff returned to
work at the substantial gainful activity level after being released from treatment of his remote foot
and ankle injuries, and he remained so employed for several years. (T. 31, 148-149, 168) See Goff,
supra. Plaintiff did not list any impairment resulting from his long past foot/ankle injuries in his
application for SSI benefits. (T. 190) See Smith, supra.; Dunahoo, supra. (fact that claimant did not
allege the impairment in her application for disability benefits is significant, even if the evidence of
the impairment was later developed). And, a consultative examination during the relevant period
revealed no significant physical limitations. (T. 398-400) Non-examining consultative physicians
also opined that Plaintiff could stand and/or walk six hours in an eight hour day. (T. 404, 441)
Finally, Plaintiff argues that he provided objective medical evidence to support his subjective
complaints of severe neck pain, difficulty raising his arms, numbness in his upper extremities, and
decreased grip. (Doc. 8, p. 20) Contrary to Plaintiff’s assertion that he was not able to obtain
treatment for his cervical spine after it was determined that the condition was pre-existing and not
covered by workers’ compensation, Plaintiff was seen and treated for his cervical complaints by
Rodney McDonald, M.D. in April and May 2010. Physical findings on exam were normal. (T. 310)
On May 18, 2010, Dr. McDonald issued two return to work slips for Plaintiff advising that Plaintiff
could return to work without restriction. (T. 338-339) Dr. McDonald offered non-narcotic treatment
of Plaintiff’s neck pain (T. 310), but the record shows that Plaintiff did not pursue it. No further
complaints of neck pain were made by Plaintiff for nearly three years until January and May 2013
(T. 573, 576) and, during an appointment on May 23, 2013, a physical examination of Plaintiff’s
neck was noted to be normal (T. 577).
The medical evidence of record during the relevant period shows only conservative treatment
with ibuprofen and largely unremarkable exams and x-ray findings. See Smith v. Shalala, 987 F.2d
1371, 1374 (8th Cir. 1993) (holding that treating physician’s conservative treatment was inconsistent
with plaintiff’s allegations of disabling pain); Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997)
(concluding that, if an impairment can be controlled through treatment or medication, it cannot be
considered disabling). The ALJ’s RFC assessment reflects that he considered this medical evidence,
and he accounted for any abnormal findings in it by limiting Plaintiff to light work rather than
medium work. (T. 30) Limiting Plaintiff to light work demonstrates that the ALJ based his RFC
determination on the medical evidence of record during the relevant period, and that he credited
Plaintiff’s subjective allegations of pain to a significant degree. See Martise v. Astrue, 641 F.3d 909,
926 (8th Cir. 2011) (the ALJ’s RFC assessment represented serious functional restrictions and
showed that he credited the alleged limitations to a significant degree).
The ALJ also considered Plaintiff’s reported activities of daily living in assessing Plaintiff’s
RFC. (T. 32) The ALJ noted that Plaintiff reported to a consultative psychological examiner that he
needs no assistance with his activities of daily living, gets dressed every day, does some household
chores like vacuuming and picking up, washes dishes, and is able to cook meals. (T. 32, 413) Such
activities of daily living further support the ALJ’s RFC finding. See Stormo v. Barnhart, 377 F.3d
The ALJ considered and discussed the evidence of record as a whole, including treatment
records, consultative examinations, state agency reviewing physician opinions, and Plaintiff’s
reported activities of daily living in reaching his RFC finding, and the ALJ properly accounted for
any limitations supported by the evidence by restricting Plaintiff to light exertional level work.
Accordingly, substantial evidence supports the ALJ’s RFC finding that Plaintiff can perform light
duty exertional level work.
D. Substantial Evidence Supports the ALJ’s Denial of Benefits
Plaintiff’s final point on appeal is that substantial evidence supports that Plaintiff is disabled
based upon Medical Vocational Rule 201.06. He argues that he is unable to do the standing and/or
walking required for light duty work, that he has no skills that transfer to the sedentary level, and that
based on his age, education, and work experience a finding of disabled under the Medical Vocational
Rules is appropriate. (Doc. 8, p. 20) The argument is deficient in both evidentiary and legal support.
From an evidentiary standpoint, the Court notes this argument presents little more than a
restatement of Plaintiff’s disagreement with the ALJ’s RFC determination, and it fails for the same
reasons discussed above in Section C.
Moreover, the argument lacks legal support because the Medical Vocational Rules, or the
Grids, only become relevant at step five of the sequential process, not at step four. See 20 C.F.R. §
416.920(a)(4)(iv) (“At the fourth step ... If you can still do your past relevant work, we will find that
you are not disabled”); 20 C.F.R. § 416.960(b)(3) (once the ALJ finds that the claimant can perform
his past relevant work at step four, the ALJ determines that the claimant is not disabled and does not
proceed to step five); Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir. 2012) (“The grids come into
play at step five of the analysis, where the burden shifts to the Commissioner to show that the
claimant has the physical residual capacity to perform a significant number of other jobs in the
national economy that are consistent with her impairments and vocational factors such as age,
education, and work experience”); Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir. 1994) (the grids
are inapplicable because they apply only at step five of the evaluation).
Substantial evidence supports the ALJ’s assessment that Plaintiff has the RFC to perform his
past relevant work as a security guard. (T. 33) Plaintiff has not met his burden at step four of the
analysis by showing an inability to perform his past relevant work. See Jones v. Astrue, 619 F.3d
963, 971 (8th Cir. 2010) (claimant bears the burden of demonstrating an inability to return to past
relevant work). Accordingly, substantial evidence of record supports the ALJ’s denial of benefits.
Having carefully reviewed and considered the entire record, the Court finds that substantial
evidence supports the ALJ’s Decision denying Plaintiff SSI benefits. The ALJ’s Decision should be,
and it hereby is, affirmed. Plaintiff’s Complaint should be dismissed with prejudice.
DATED this 24th day of November, 2015.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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