McEntire v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on November 7, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JOSHUA D. McENTIRE
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Joshua D. McEntire, 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 claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) under the provisions of Titles II and 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).
Plaintiff filed his applications for DIB and SSI on April 14, 2009, alleging an inability
to work, due to a compressed fracture in his back, arthritis in his upper back and degenerative
disc in his lower back, a compressed sciatic nerve, sharp pain in his legs, and numbness in his
hands. (Tr. 130-131, 137-140, 172). An administrative hearing was held on April 20, 2010, at
which Plaintiff appeared with counsel and he and his wife and friend testified. (Tr. 24-74).
Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
By written decision dated November 22, 2010, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe - mild
degenerative disc disease of the lumbar spine with lumbago and history of compression fracture
of L3. (Tr. 12). However, after reviewing all of the evidence presented, the ALJ determined that
Plaintiff’s impairments did not meet or equal the level of severity of any impairment listed in the
Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 14). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except he is able to only occasionally climb, balance, stoop, kneel, crouch
and crawl and perform overhead reaching. He must avoid concentrated
exposure to hazards, i.e. unprotected heights and dangerous moving
machinery, and engage in no driving as part of work.
(Tr. 14). With the help of the vocational expert (VE), the ALJ determined that Plaintiff was able
to perform his past relevant work as a production worker/assembler, as this work did not require
the performance of work-related activities precluded by the Plaintiff’s RFC. (Tr. 17).
Alternatively, the ALJ found that Plaintiff could perform the job of fast food worker; counter
attendant, lunchroom; production worker helper (e.g. nut and bolt assembler); and production
worker (e.g. bench assembler). (Tr. 19).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied the request on June 13, 2012. (Tr. 1-4). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 9, 10).
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs, and are repeated here only to the extent necessary.
This Court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583 (8th Cir.
2002). 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. The ALJ’s decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.
3d 964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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 decision of the
ALJ must be affirmed. 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 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. §§423(d)(1)(A),
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. §§423(d)(3),
1382(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 him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in substantial
gainful activity since filing his claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. §416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
in light of his residual functional capacity (RFC). See McCoy v. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following arguments on appeal: 1) The ALJ erred in evaluating
Plaintiff’s credibility; 2) The ALJ’s RFC determination is not supported by substantial evidence;
and 3) The ALJ erred in failing to find Plaintiff’s neck pain was a severe impairment. (Doc. 9).
The ALJ was required to consider all the evidence relating to Plaintiff’s subjective
complaints including evidence presented by third parties that relates to: (1) Plaintiff’s daily
activities; (2) the duration, frequency, and intensity of his pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of his medication; and (5) functional
restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While an ALJ may not
discount a claimant’s subjective complaints solely because the medical evidence fails to support
them, an ALJ may discount those complaints where inconsistencies appear in the record as a
whole. Id. As the Eighth Circuit has observed, “Our touchstone is that [a claimant’s] credibility
is primarily a matter for the ALJ to decide.” Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir.
In the present case, the ALJ considered Plaintiff’s daily activities, noting that Plaintiff
had mild limitation in this area. The ALJ noted that in a questionnaire Plaintiff completed on
April 6, 2010, he reported that he could take care of his personal needs, drive, help with
household chores, and cook. (Tr. 14). In fact, a review of the questionnaire indicates that
Plaintiff could drive, clean house, do laundry, make the bed, groom himself, visit relatives and
friends on a weekly basis, and cook and watch children on a daily basis. (Tr. 219). The ALJ also
discussed Plaintiff’s allegations of pain, noting that he had been treated conservatively with pain
medication, anti-inflammatories, and muscle relaxers. (Tr. 15-16). Plaintiff was also given two
epidural injections, which he indicated were not helpful. (Tr. 15-16). Plaintiff also reported that
he was unable to afford to go to a pain specialist or to a doctor for surgery. However, the records
reflect that Plaintiff is able to afford smoking up to one pack of cigarettes per day, and on March
14, 2006, Dr. Larry Jennings, of Boston Mountain Rural Health Center, Inc., recommended
Plaintiff stop smoking and offered help, and Plaintiff was not interested. (Tr. 48, 249). The
Court therefore cannot say that his financial situation prevented him from receiving medical
treatment. Failure of the Plaintiff to seek medical treatment strongly weighs against his
subjective claims of pain and limitation and has been held to be inconsistent with allegations of
pain. See Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir. 2003); Hensley v. Barnhart, 352 F.3d
353, 357 (8th Cir. 2003); Novotny v. Chater, 72 F.3d 669, 671 (8th Cir. 1995 (per curiam).
The ALJ also discussed Plaintiff’s functional limitations. He noted that subsequent to the
hearing, he requested the state agency schedule an orthopedic evaluation for Plaintiff. Said
evaluation was performed by Dr. Ted Honghiran on June 7, 2010. In his evaluation, Dr.
Honghiran found that upon exam, Plaintiff demonstrated Plaintiff was able to walk fairly
normally and appeared to be somewhat stiff. (Tr. 358). He further noted that the examination
of the lumbosacral spine showed minimal limitation of motion of the cervical and lumbosacral
spine. (Tr. 359). Plaintiff was reported as being able to flex about 45 degrees only, and had no
extension in the lumbar spine. He could bend side to side 10 degrees only with pain, and straight
leg raises caused pain in his back at about 60 degrees on both sides. (Tr. 359). Plaintiff had
normal reflex and sensation in both arms and both legs with intact sensation. (Tr. 359). Dr.
Honghiran reported that the examination of Plaintiff’s hands on both sides showed early carpal
tunnel syndrome in both right and left wrist with some tingling sensations along the median
nerve distribution in both hands, and the examination of both feet showed normal findings. (Tr.
359). Dr. Honghiran determined that Plaintiff had a history of having multiple back injuries in
the past which had left him with chronic pain and stiffness. (Tr. 359). He also found Plaintiff had
no signs of neurological deficits except for the pain that he described. (Tr. 359). Dr. Honghiran
concluded that with Plaintiff’s 8th grade education “it will be very difficult for him to find a job
that does not require physical work.” (Tr. 360).
The ALJ considered Dr. Honghiran’s opinion, and found that his 2010 findings were
consistent with a limitation to light work. The ALJ also considered Dr. Jim Takach’s Physical
RFC Assessment, dated May 7, 2009, wherein he found Plaintiff was capable of performing light
work with certain postural and manipulative limitations and should avoid concentrated exposure
to hazards (machinery, heights, etc.). (Tr. 271-278).
Based upon the foregoing, and for those reasons given in Defendant’s well-stated brief,
the Court believes the ALJ properly considered the relevant factors in making a credibility
determination and that there is substantial evidence to support the ALJ’s credibility findings.
RFC is the most a person can do despite that person’s limitations.
§404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. This includes
medical records, observations of treating physicians and others, and the claimant’s own
description of his limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005);
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. § 404.1545(a)(3). The
Eighth Circuit has held that a “claimant’s residual functional capacity is a medical question.”
Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, an ALJ’s determination
concerning a claimant’s RFC must be supported by medical evidence that addresses the
claimant’s ability to function in the workplace.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir.
2003). “The ALJ is [also] required to set forth specifically a claimant’s limitations and to
determine how those limitations affect his RFC.” Id.
In this case, as stated earlier, the ALJ found that Plaintiff had the RFC to perform light
work with certain postural and manipulative limitations. In making his finding, the ALJ
considered the medical records, the observations of Plaintiff’s treating physicians, Plaintiff’s
wife and friend’s testimony, and Plaintiff’s description of his own limitations. He discussed the
medical evidence dating back to 1997, the records involving Dr. Blake Chitsey’s treatment and
Dr. Vowell’s treatment (his treating physicians), as well as the limitations set forth by Dr. Vann
Smith. The ALJ concluded that the recommendations of Dr. Vowell in 1998 and the findings
of Dr. Honghiran in 2010 were consistent with a limitation to light work, and that Dr. Smith’s
limitations were excessive and inconsistent with the other objective medical evidence of record.
(Tr. 17). He therefore gave Dr. Smith’s opinion little weight. The Court agrees. The ALJ’s
postural and manipulative limitations, as well as the limitation that Plaintiff should avoid
concentrated exposure to hazards and engage in no driving as part of work, clearly take into
consideration Plaintiff’s impairments.
Based upon the foregoing, as well as for those reasons given in Defendant’s well-stated
brief, the Court finds there is substantial evidence to support the ALJ’s RFC determination.
Plaintiff contends the ALJ erred in not finding his neck pain was a severe impairment.
An impairment is severe within the meaning of the regulations if it significantly limits an
individual’s ability to perform basic work activities.
20 C.F.R. §§ 1520(a)(4)ii),
416.920(a)(4)(ii). 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. §
§ 404.1521, 416.921. The Supreme Court has adopted a “de minimis standard” with regard to
the severity standard. Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989).
Plaintiff complained of neck pain to Dr. Larry Jennings at Boston Mountain Rural Health
Center on October 9, 2001. (Tr. 319). Dr. Jennings assessed Plaintiff with chronic pain in the
neck and back that waxed and waned in severity. (Tr. 319). On February 1, 2002, Dr. Jennings
reported that an x-ray of Plaintiff’s cervical spine did not identify any acute problems on the C-8-
spine. (Tr. 317). On November 1, 2004, Plaintiff was assessed with neck pain at Boston
Mountain Rural Health Clinic. (Tr. 307). On September 2, 2009, Plaintiff presented himself to
Dr. Chitsey complaining of neck and back pain. (Tr. 332). Dr. Chitsey reported that he talked to
Plaintiff about pain management and told Plaintiff he was not going to continue to write
scheduled II narcotics for him. (Tr. 332). He switched Plaintiff over to Ultram, and gave Plaintiff
the option of going to a pain specialist, which he declined to do. (Tr. 332). The Court cannot say
that the evidence establishes anything more than the fact that Plaintiff’s neck pain had only a
minimal effect on Plaintiff’s ability to work.
Accordingly, the Court finds substantial evidence to support the ALJ’s severe impairment
Accordingly, having carefully reviewed the record, the Court finds substantial evidence
supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision is hereby
affirmed. The undersigned further finds that Plaintiff’s Complaint should be, and is hereby,
dismissed with prejudice.
IT IS SO ORDERED this 7th day of November, 2013.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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