Guillory v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 2, 2015. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TAMMY L. GUILLORY
vs.

PLAINTIFF
Civil No. 2:14-cv-02221

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Tammy Guillory (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying her application for
Disability Insurance Benefits (“DIB”) and a period fo disability under Title II of the Act. The parties
have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this
case, including conducting the trial, ordering the entry of a final judgment, and conducting all postjudgment proceedings. ECF No. 5.1 Pursuant to this authority, the Court issues this memorandum
opinion and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff protectively filed her disability application on April 3, 2012. (Tr. 10, 132-133).
Plaintiff alleged she was disabled due to depression, migraines, asthma, obesity, and back and neck
pain. (Tr. 167). Plaintiff alleged an onset date of November 13, 2011 which was amended at her
hearing to May 15, 2011. (Tr. 10, 167). This application was denied initially and again upon
reconsideration. (Tr. 10, 82-84, 91-92).
Plaintiff then requested an administrative hearing on her application. (Tr. 89-90). This
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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.”

hearing was held on April 15, 2013. (Tr. 29-77). Plaintiff was present and was represented by
counsel, David Harp, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Myrtle Johnson,
testified at this hearing. Id. On the date of this hearing, Plaintiff was forty (40) years old, which is
defined as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c) (2008). (Tr. 33-34).
The Plaintiff testified she graduated high school and had one year of college. Id.
On September 6, 2013, the Administrative Law Judge (“ALJ”) entered an unfavorable
decision denying Plaintiff’s application for DIB. (Tr. 10-23). In this decision, the ALJ found
Plaintiff met the insured status requirements of the Act through December 31, 2016. (Tr. 12, Finding
1). The ALJ also found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since May
15, 2011, her alleged onset date. (Tr. 12, Finding 2).
The ALJ determined Plaintiff had the following severe impairments: morbid obesity,
migraines, asthma, osteoarthritis of the right knee, right calcaneal spur, umbilical/ventral hernia with
history of hernia surgery, dysthymia, eating disorder, and passive dependent personality traits. (Tr.
12, Finding 3). The ALJ also determined Plaintiff’s impairments or combination of impairments did
not meet or medically equal the requirements of any of the Listing of Impairments in Appendix 1 to
Subpart P of Regulations No. 4 (“Listings”). (Tr. 14, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 15-22). First, the ALJ evaluated Plaintiff’s subjective complaints and found her claimed
limitations were not totally credible. Id. Second, the ALJ determined, based upon a review of
Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record, the Plaintiff
retained the RFC to perform sedentary work, except she could only occasionally balance and stoop,
but could not climb, kneel, crouch, or crawl; needed to avoid concentrated exposure to temperature
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extremes, humidity, fumes, odors, dusts, gasses, and poor ventilation; and could perform work where
interpersonal contact is incidental to the work performed, the complexity of tasks is learned and
performed by rote, with few variables, and little use of judgment, and the supervision required is
simple, direct, and concrete. (Tr. 15-16, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 22, Finding 6). The ALJ
determined Plaintiff was unable to perform any past relevant work. Id. The ALJ however
determined there was other work existing in significant numbers in the national economy Plaintiff
could perform. (Tr. 22-23, Finding 10). The vocational expert (“VE”) testified at the administrative
hearing regarding this issue. (Tr. 71-72). Based upon the VE’s testimony, the ALJ determined
Plaintiff retained the ability to perform other work such as jewelry repair with 4,490 such jobs in the
region and 235,910 such jobs in the nation and as a document preparer with 25, 060 such jobs in the
region and 2,828,140 such jobs in the nation. (Tr. 23). The ALJ then determined Plaintiff had not
been under a “disability,” as defined by the Act, from May 15, 2011, through the date of the decision.
(Tr. 23, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 6). On
September 12, 2014, the Appeals Council declined to review this decision. (Tr. 1-3). On October
20, 2014, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of
this Court on October 21, 2014. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 11,
12. This case is now ready for decision.
2. Applicable Law:
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)
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(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as there is substantial evidence in the record supporting 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 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
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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).
3. Discussion:
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 11. Specifically, Plaintiff claims the ALJ erred: (1) in
failing to evaluate the severity of Plaintiff’s impairments, (2) in the RFC determination, and (3) in
the Step 5 analysis. ECF No. 11, Pg. 8-13. In response, the Defendant argues the ALJ did not err
in any of his findings. ECF No. 12.
A. Severe Impairments
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. § 416.920(c)). An impairment or combination of impairments is not severe when
medical and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s ability to work. 20
C.F.R. § 416.921. Alleged impairments may not be considered severe when they are stabilized by
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treatment and otherwise are generally unsupported by the medical record. Johnston v. Apfel, 210
F.3d 870, 875 (8th Cir. 2000); see also Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000)
(plaintiff bears the burden to establish severe impairments at Step Two of the sequential evaluation).
Plaintiff claims the ALJ erred in failing to evaluate the severity of Plaintiff’s impairments,
specifically he did not find her neck, back, and hip pain to be severe impairments. ECF No. 11, Pg.
8. The Court finds the ALJ did not fail to evaluate the severity of Plaintiff’s remaining medically
determinable impairments, but rather found the impairments to be nonsevere.
To begin with, pain is a symptom, not an impairment. See 20 C.F.R. § 404.1529(a), see also
In re Heckler, 751 F.2d 954, 955 n.1 (8th Cir. 1984) (noting that “pain is a symptom, not an
impairment”). Furthermore, there is evidence in the decision showing the ALJ fully considered her
neck, back, and hip pain. The ALJ noted CT scans and x-rays examinations revealed unremarkable
results of Plaintiff’s hip and lumbar spine, and her cervical spine had only mild levoscoliosis, with
no acute fracture of dislocation. (Tr. 17). The ALJ also noted Plaintiff only took over-the-counter
medications for her pain, which does not support allegations of having a severe impairment due to
neck, back, and hip problems. (Tr. 18).
The discussion of Plaintiff’s non-severe impairments along with the ALJ’s language
indicating that he fully considered all impairments, including those that were not severe, showed the
ALJ considered the combined effect of Plaintiff’s impairments. See Martise v. Astrue, 641 F.3d
909, 924 (8th Cir. 2011); Raney v. Barnhart, 396 F.3d 1007, 1011 (8th Cir. 2005). The ALJ
accounted for Plaintiff’s severe and nonsevere impairments and reduced her RFC to a limited range
of sedentary work. (Tr. 15-16, Finding 5).
Based on the foregoing, the Court finds there is substantial evidence to support the ALJ
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finding he properly evaluated the severity of the Plaintiff’s impairments and accounted for any
limitations due to such impairments in assessing the RFC.
B. RFC Determination
Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required
to determine a claimant’s RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must
be based on medical evidence that addresses the claimant’s ability to function in the workplace. See
Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). The ALJ should consider “‘all the evidence
in the record’ in determining the RFC, including ‘the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.’” Stormo v. Barnhart,
377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002)).
The Plaintiff has the burden of producing documents and evidence to support his or her claimed
RFC. See Cox, 160 F.3d at1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The ALJ, however, bears the primary responsibility for making the RFC determination and
for ensuring there is “some medical evidence” regarding the claimant’s “ability to function in the
workplace” that supports the RFC determination. Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir.
2001). Furthermore, this Court is required to affirm the ALJ’s RFC determination if that
determination is supported by substantial evidence on the record as a whole. See McKinney v. Apfel,
228 F.3d 860, 862 (8th Cir. 2000).
In this matter, the ALJ determined Plaintiff retained the RFC to perform sedentary work,
except she could only occasionally balance and stoop, but could not climb, kneel, crouch, or crawl;
needed to avoid concentrated exposure to temperature extremes, humidity, fumes, odors, dusts,
gasses, and poor ventilation; and could perform work where interpersonal contact is incidental to the
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work performed, the complexity of tasks is learned and performed by rote, with few variables, and
little use of judgment, and the supervision required is simple, direct, and concrete. (Tr. 15-16,
Finding 5). Plaintiff argues the ALJ erred in this RFC determination because it is inconsistent with
medical record. ECF No. 11, Pgs. 9-12. However, substantial evidence supports the ALJ’s RFC
determination.
On February 5, 2011, Plaintiff was seen at Sparks Regional Medical Center after a motor
vehicle accident. (Tr. 351-355). Treatment records show Plaintiff’s pain was mild, and diagnostic
examinations and a physical examination of her pelvis, back, arms and legs revealed normal results
with no abnormalities. (Tr. 352). Plaintiff was diagnosed with a cervical and lumbar strain, and
given a prescription for pain medication. Id.
On May 16, 2012, Dr. Chester Carlson, performed a general physical examination of
Plaintiff. (Tr. 241-245). Dr. Carlson indicated Plaintiff had a normal range of motion of her
shoulders, elbows, wrists, hands, ankles, and cervical and lumbar spines, and mild limitation of her
hips and knees due to obesity. (Tr. 243). Plaintiff had no muscle spasms, joint deformities, sensory
abnormalities, muscle weakness, or muscle atrophy, and had normal hand dexterity, normal grip
strength; could walk on heel and toes, but could not squat and arise from a squatting position. (Tr.
244). Plaintiff was diagnosed with morbid obesity, asthma, migraines and depression. (Tr. 245).
On July 16, 2012, Dr. Jerry Thomas prepared a Physical RFC Assessment on Plaintiff. (Tr.
278-285). Dr. Thomas indicated Plaintiff had the RFC to lift or carry twenty pounds occasionally
and ten pounds frequently; to stand and walk for about six hours in an eight-hour workday; to sit for
about six hours in an eight-hour workday; and to push and pull without limitations, other than as
assessed for lifting and carrying. (Tr. 279). Dr. Thomas also indicated Plaintiff had no postural,
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manipulative, visual, communicative, or environmental limitations. (Tr. 280-285).
Additionally, Plaintiff’s treatment records show she had no impairment that required pain
medications. Plaintiff’s treatment was primarily conservative and often it was reported she was
taking no medications. (Tr. 297, 320, 350, 352, 368).
Plaintiff also argues the ALJ erred in his Mental RFC assessment. ECF No. 11, Pgs. 10-12.
To begin with, the ALJ noted Plaintiff presented no evidence showing she had ever received either
inpatient or outpatient mental health care, other than her allegation she had previously been
prescribed Zoloft. (Tr. 20). As a result of the limited medical regarding a claim of depression, a
mental diagnostic evaluation of Plaintiff was done on June 7, 2012 by Dr. Patricia Walz. (Tr. 246250). Plaintiff was diagnosed with dysthymia, eating disorder, and passive dependent traits. (Tr.
249). Dr. Walz also found Plaintiff’s daily activities were essentially normal; her capacity to
communicate and interact in a socially adequate manner was fair; her capacity to communicate in
intelligible and effective manner was normal; cognitively, she would have difficulty with concept
tasks; her attention and concentration were fair; she appeared to have poor frustration tolerance; and
her speed of information processing was slow at times. (Tr. 249-250).
On July 13, 2012, Dr. Abesie Kelly completed a Psychiatric Review Technique Form on
Plaintiff where she diagnosed her with dysthymia and an eating disorder. (Tr. 264-277). Dr. Kelly
also completed a Mental RFC Assessment. (Tr. 260-263). Dr. Kelly reviewed Plaintiff’s mental
functional capacity and found she was able to perform work where interpersonal contact is incidental
to work performed, e.g. assembly work; complexity of tasks is learned and performed by rote, few
variables, little judgment; and supervision required is simple, direct and concrete. (Tr. 262).
As shown by the above medical evidence, substantial evidence supports the ALJ’s RFC
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determination. Plaintiff has the burden of establishing her claimed RFC. See Goff v. Barnhart, 421
F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)).
Because Plaintiff has not met this burden in this case and because the ALJ’s RFC determination is
supported by sufficient medical evidence, this Court finds the ALJ’s RFC determination should be
affirmed.
C. Step 5 Determination
At Step Five of a disability determination, the SSA has the burden of establishing that a
claimant retains the ability to perform other work in the economy. See Snead v. Barnhart, 360 F.3d
838, 836 (8th Cir. 2004). The SSA may meet this burden by either applying the Grids or by relying
upon the testimony of a VE. See Cox v. Astrue, 495 F.3d 614, 621 (8th Cir. 2004) (finding the SSA’s
denial of benefits was supported by substantial evidence where the VE’s testimony was based on a
correctly-phrased hypothetical question); Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003)
(finding the SSA’s denial of benefits was supported by substantial evidence where the ALJ applied the
Grids).
The SSA may not apply the Grids, and must hear testimony from a VE, where a claimant’s
RFC is significantly diminished by a nonexertional limitation. See McGeorge v. Barnhart, 321 F.3d
766, 768-769 (8th Cir. 2003). If, however, the SSA properly determines a claimant’s RFC is not
significantly diminished by a nonexertional limitation, then the SSA may rely exclusively upon the
Grids and is not required to hear the testimony from a VE. See McGeorge, 321 F.3d at 768-769.
In this matter, the ALJ heard testimony from a VE regarding Plaintiff’s ability to perform work
in the national economy. It is generally accepted that VE testimony, in response to a hypothetical
question, is substantial evidence if the hypothetical sets forth the credible impairments with reasonable

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precision. See Starr v. Sullivan, 981 F.2d 1006 (8th Cir. 1992). It has further been established the ALJ
must only include in the hypothetical those impairments which the ALJ actually finds credible, and not
those which he rejects, assuming his findings are supported by substantial evidence. See Onstad v.
Shalala, 999 F.2d 1232 (8th Cir. 1993).
The ALJ found Plaintiff had the RFC to perform sedentary work, except she could only
occasionally balance and stoop, but could not climb, kneel, crouch, or crawl; needed to avoid
concentrated exposure to temperature extremes, humidity, fumes, odors, dusts, gasses, and poor
ventilation; and could perform work where interpersonal contact is incidental to the work performed,
the complexity of tasks is learned and performed by rote, with few variables, and little use of
judgment, and the supervision required is simple, direct, and concrete. (Tr. 15-16, Finding 5). In
response to a hypothetical question containing these limitations, the VE testified work existed in the
national economy consistent with the limitations found by the ALJ. (Tr. 71-72). The ALJ found a
significant number of jobs existed in the national economy which Plaintiff could perform. (Tr. 22,
Finding 10). Relying on the VE testimony, the ALJ found Plaintiff was not under a disability as
defined by the Act. (Tr. 23, Finding 11).
I find the ALJ's hypothetical question properly set forth those limitations the ALJ found
credible and which are supported by the evidence of record. See Haynes v. Shalala, 26 F.3d 812, 815
(8th Cir. 1994); Rappoport v. Sullivan, 942 F.2d 1320, 1322 (8th Cir. 1991) (ALJ need only include
in his hypothetical question those impairments he accepts as true). The VE stated jobs existed in both
the national and regional economy for the vocational profile of the Plaintiff. Such testimony, based
on a hypothetical question consistent with the record, provided substantial evidence.

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4. Conclusion:
Based on the foregoing, the undersigned finds 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 2nd day of July 2015.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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