Russell v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on November 17, 2014. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
ERIC S. RUSSELL
Civil No. 3:13-cv-03101
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Eric S. Russell, brings this action pursuant to § 205(g) of Title II of the Social
Security Act, seeking judicial review of a decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying his claim for a period of disability and Supplemental
Security Income (“SSI”) under the provisions of Title II of the Social Security Act (“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 post-judgment proceedings. ECF No. 5.1 Pursuant to this authority, the Court issues this
memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed an application for SSI on July 18, 2011 (Tr. 25, 172) alleging an
onset date of March 5, 2004 due to a ruptured disk in his lower back, severe anxiety, depression,
back injury, neck injury, and high blood pressure. (Tr. 176). Plaintiff’s claim was denied initially
and on reconsideration. An administrative hearing was held on May 24, 2012, at which Plaintiff
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.”
appeared with counsel and testified. (Tr. 40-82). A Vocational Expert, (“VE”) as well as Plaintiff’s
wife and friend were also present and testified. (Tr. 25).
The Administrative Law Judge (“ALJ”) determined Plaintiff had the following severe
impairments: depression, anxiety, degenerative disc disease of the lumbar spine, disc disorder of the
cervical spine, and hypertension. (Tr. 27, Finding 2). After reviewing all of the evidence presented,
however, the ALJ determined Plaintiff’s impairments did not meet or equal the level of severity of
any impairment listed in the Listing of Impairments. (Tr. 28-29, Finding 3).
The ALJ evaluated Plaintiff’s subjective complaints and determined his RFC. (Tr. 29-33,
Finding 4). The ALJ first evaluated Plaintiff’s subjective complaints and found that they were not
entirely credible. (Tr. 30). The ALJ then found Plaintiff retained the residual functional capacity
(“RFC”) to perform light work as defined in CFR 404.1567(a) except he can perform work where
interpersonal contact is routine but superficial; complexity of tasks is learned by experience, several
variable, uses judgment within limits; supervision required is little for routine but detailed for nonroutine. (Tr. 29).
The ALJ found Plaintiff was forty-years old on his alleged disability onset date. (Tr. 21,
Finding 6). Such an individual is defined as a “younger person” under 20 C.F.R. § 416.963(c). As
for his level of education, the ALJ determined Plaintiff had at least a high school education and was
able to communicate in English. (Tr. 33, Finding 7).
With the help of a VE, the ALJ evaluated Plaintiff’s past relevant work (“PRW”). (Tr. 7682). The ALJ determined Plaintiff’s PRW was as an auto glass tech, general laborer, and machine
operator. (Tr. 33, 77-78, Finding 5). The ALJ then considered whether Plaintiff retained the
capacity to perform other work existing in significant numbers in the national economy. (Tr. 34,
Finding 9). Based on the VE’s testimony, the ALJ determined Plaintiff retained the capacity to
perform the requirements of representative occupations such as fishing boat assembler, and was
capable of making a successful adjustment to other work that exists in significant numbers in the
national economy. (Tr. 34). The ALJ concluded the Plaintiff was not under a disability. (Tr. 34,
Plaintiff then requested a review of the hearing decision by the Appeals Council on August,
13, 2012 (Tr. 19-20), which denied that request on September 25, 2013. (Tr. 1-4). On November
1, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of
this Court on November 5, 2013. ECF No. 5. Both Parties have filed appeal briefs, and the case is
ready for decision. ECF Nos. 12, 13.
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. “Our review extends beyond
examining the record to find substantial evidence in support of the ALJ’s decision; we also consider
evidence in the record that fairly detracts from that decision.” Cox v. Astrue, 495 F.3d 614, 617 (8th
Cir. 2007). 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 or her disability by establishing a physical or mental disability that has lasted at lease one
year and that prevents her from engaging in 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 demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A Plaintiff must
show that her disability, not simply her impairment, has lasted for at least twelve consecutive
months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993)
The Commissioner’s regulations require the application of a five-step sequential evaluation
process to each claim for disability benefits. See 20 C.F.R. § 404.1520(a)- (f)(2003). Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience in
light of his or her RFC. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R.
§ § 404.1520, 416.920 (2003).
Plaintiff raises the following arguments on appeal: (1) The ALJ did not give sufficient weight
to the treating physician’s medical opinions; (2) the ALJ erred in the RFC assessment because the
ALJ did not adequately consider Plaintiff’s limitations from pain; and (3) the ALJ’s decision should
be remanded because it was not supported by substantial evidence. ECF No. 12 at 8-15. Plaintiff’s
third point is a conclusion not an argument, and the Court’s attention is on whether the ALJ
appropriately weighed the opinion evidence and properly considered Plaintiff’s limitations from pain
to arrive at an RFC determination.
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. §404.1545(a)(1). This includes medical records,
observations of treating physicians and others, and the claimant’s own descriptions of his or her
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). A claimant’s RFC is a medical question and an
ALJ’s determination must be supported by medical evidence that addresses the claimant’s ability to
function in the workplace. Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001); Lewis v. Barnhart, 353
F.3d 642, 646 (8th Cir. 2003). The ALJ is required to assess a claimant’s limitations and to
determine how those limitations affect a claimant’s RFC. Id.
The Court first considers whether the ALJ properly discounted the opinions of Dr. Kevin
Jackson, the Plaintiff’s treating physician. A treating physician's opinion is generally entitled to
substantial weight, although the opinion is not conclusive and must be supported by medically
acceptable clinical or diagnostic data. Davis v. Shalala, 31 F.3d 753, 756 (8th Cir. 1994); 20 C.F.R.
§ 404.1527(d)(2). An ALJ may reject the opinion of any medical expert that is inconsistent with the
medical record as a whole. Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 1989). Whether the
weight accorded the treating physician’s opinion by the ALJ is great or small, the ALJ must give
good reasons for that weighting. Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000) (citing 20
C.F.R. § 404.1527(d)(2)).
The record included a physical RFC assessment and medical notes from Dr. Jackson. Dr.
Jackson’s opinion was that Plaintiff was in constant pain and incapable of holding even low stress
jobs. (Tr. 360). Dr. Jackson also believed Plaintiff should not lift and carry more than fifteen
pounds, should refrain from reaching overhead, and “with [Plaintiff’s] anxiety issues along with his
physical limitations, he will not be able to maintain employment.” (Tr. 359-363). The record also
included physical RFC assessments from the State’s consulting physicians, Dr. Bill Payne and Dr.
Sharon Keith, who opined Plaintiff’s physical impairments were non-severe. (Tr. 318, 356); a State
mental diagnostic evaluation by Dr. Terry Efird who did not state Plaintiff had any significant
limitations and evaluated Plaintiff’s Global Assessment of Functioning (“GAF”) as 55-65; and
mental RFC assessments from the State’s consulting physicians, Dr. Brad Williams and Dr. Kevin
Santulli, who opined Plaintiff had several moderate mental limitations but no severe limitations. (Tr.
After acknowledging Dr. Jackson’s long-term treatment relationship with Plaintiff and
considering all of the evidence, the ALJ determined Dr. Jackson’s opinions were entitled to little
weight because Dr. Jackson’s opinions were inconsistent with his own treatment records and the
record as a whole. (Tr. 32). The ALJ specifically called attention to the lack of any physical
limitations identified by Dr. Jackson’s examinations, the absence of any recommendations for
surgery, and Plaintiff’s normal daily activities such as driving, personal care, and completing
yardwork. (Tr. 32). The Court notes the medical records show Plaintiff complained of back pain
to Dr. Jackson in July 2006 (Tr. 405) and September 2007 (Tr. 396-398), but Plaintiff did not
complain about back pain again until November 2009 when he requested Hydrocodone instead of
Percocet. (Tr. 377).
In 2011, Plaintiff visited Dr. Jackson four times for a check-up and medication refills. (Tr.
297-301, 343). During each of these visits, Dr. Jackson reported there were no abnormalities for the
neck or extremities and that reflexes were normal. Id. On July 21, 2011, however, Dr. Jackson
noted Plaintiff was tender over the lower lumbar and cervical spine and had positive straight leg
raises on the right. (Tr. 297). Notes from the follow-up in October 2011 reflected no changes from
the July visit. (Tr. 297). On January 10, 2012, Plaintiff returned to see Dr. Jackson for a check-up
and complained his pain medications were not controlling his pain in his back and he had numbness
and tingling in his left arm and tingling and weakness in his legs. (Tr. 412). Dr. Jackson again noted
Plaintiff’s extremities and reflexes were normal and his gait was within normal limits, but Plaintiff
was tender over the lower lumbar spine and cervical spine and he had positive straight leg raises on
the right. (Tr. 412). Dr. Jackson’s treatment remained unchanged, however, and only he refilled
Plaintiff’s medication and told Plaintiff to return for a check-up. (Tr. 412-413). The next visit was
for a check-up and medication refills on March 20, 2012 where Dr. Jackson did not note Plaintiff
voiced any pain complaints. (Tr. 410).
An ALJ may reject the conclusions of any medical expert if the conclusions are inconsistent
with the record as a whole or inconsistent with the physician’s treatment notes. Johnson v. Apfel, 240
F.3d 1145, 1148 (8th Cir. 2001); see also Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010).
Here, the ALJ provided sufficient reasons to discount Dr. Jackson’s opinions. The ALJ considered
all of medical evidence and concluded Dr. Jackson’s opinions were not consistent with the medical
records, including Dr. Jackson’s own treatment records, which is an appropriate reason for
discounting a treating physician’s opinion. Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996).
Plaintiff also argues an ALJ can only discount a treating physician’s medical opinions after
attempting to contact the physician for explanation or clarification and calls the Court’s attention to
three cases, O’Donnell v. Barnhart, 318 F.3d 811 (8th Cir. 2003); Bowman v. Barnhart; 310 F.3d
1080 (8th Cir. 2002); Gutzman v. Apfel, 109 F. Supp.2d 1129 (D. Neb. 2000). (ECF No. 12 at 10).
The Court has carefully read these cases and found they are mischaracterized and do not apply to the
Plaintiff’s case. O’Donnell and Bowman addressed a situation where the record included copious
notes from medical visits with a treating physician but the physician did not provide an RFC
assessment containing a medical opinion. See Cox, 495 F.3d at 620)(discussing the reasons Bowman
was remanded). The courts in those cases concluded the ALJ failed to develop the record by not
contacting the treating physician and erred by only interpreting the notes in the medical record.
Gutzman meanwhile is not precedential and distinguishable because it involved a case where the ALJ
discredited a treating physician’s medical opinions for not being based on laboratory evidence even
though the record included several laboratory results that were consistent with the physician’s
opinions. Contrary to Plaintiff’s argument, the ALJ is only required to recontact a physician when
a crucial issue is undeveloped, Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005), or when existing
medical sources do not contain sufficient evidence to make a determination.” Matthews v. Bowen,
879 F.2d 423, 424 (8th Cir. 1989).
The second prong of Plaintiff’s RFC argument is that the ALJ did not properly account for
Plaintiff’s pain in the RFC determination. (ECF No. 12 at 13-14). Although difficult to unpack,
Plaintiff’s argument is essentially that his pain is so limiting, he cannot perform light work as defined
by the Dictionary of Occupational Titles. In support of his argument, Plaintiff offers Dr. Jackson’s
medical opinion that Plaintiff’s pain was severe enough to affect his attention and Dr. Jackson’s
conclusion that Plaintiff “will not be able to maintain gainful employment.” (Tr. 360; ECF No 12
The Court first notes Dr. Jackson’s opinion that Plaintiff could not maintain gainful
employment was not entitled to weight because it invaded the ALJ’s responsibility to make the
disability determination. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012). The ALJ
appropriately disregarded this conclusion.
At the administrative hearing, Plaintiff described his pain as “constant, nagging ... like a bad
toothache in [his] lower back,” (Tr. 49) and explained how his back pain affected his ability to sleep
and happiness. (Tr. 53, 60). The ALJ determined “the intensity and persistence of the [Plaintiff’s]
pain and other symptoms are not consistent with the medical record signs and the medical record as
a whole” after applying the framework directed by Polaski v. Heckler, 739 F.2d 1320, 1322. (Tr.
30-31, 33). As the ALJ noted in his opinion, Plaintiff testified he has severe pain in his lower back
and neck and has to stay in bed as much as a week each month; that he has trouble sleeping; and has
panic attacks that are triggered by back pain. (Tr. 29, 50-51). The ALJ also noted from the medical
record that in July 2011 and January 2012 Plaintiff complained to Dr. Jackson his pain medications
were not controlling his pain and Dr. Jackson noted Plaintiff’s had tenderness in the cervical and
lumbar spinal regions and positive straight leg raises. (Tr. 31). The ALJ’s written decision shows
he closely considered Plaintiff’s subjective complaints of pain and descriptions of pain in the
The medical evidence from before the relevant time period showed Plaintiff underwent an
MRI in January 2005 and was diagnosed with a a small left-sided herniated nucleus pulposis at L3-4,
degenerative disc disease at L4-5 and L5-S1, and a small right-sided herniated nucleus pulposis at
L5-S1 (Tr. 505), but as the ALJ observed, diagnostic studies did not support a surgical lesion or
nerve root compression, and surgery was never recommended. (Tr. 32). An examination of the
lumbar spine by Dr. Ted Lennard showed mild reduction in flexion, full extension, and side to side
bending. (Tr. 370). Plaintiff rated his pain as four to five on a ten point scale at the time of the
examination and the results from an Oswestry questionnaire indicated Plaintiff had a severe
perception of disability, that pain killers gave him moderate relief, and that his pain prevented him
from lifting heavy weights but could lift light to moderate weights if they were conveniently
positioned. (Tr. 370). Plaintiff also reported in a Pain Questionnaire submitted as part of his
disability application that he could only sit for 1-2 hours or stand for 20-30 minutes before feeling
some pain that would affect his concentration and that only medication helps relieve the pain. (Tr.
Although it is clear Plaintiff suffers with some degree of pain, pain alone does not equate to
disability, even when working may cause pain or discomfort. Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000). The ALJ discredited Plaintiff’s allegations of disabling pain because he had only
received minimum medical treatment and had only taken medications for pain on an occasional
basis. See Williams v. Bowen, 790 F.2d 713 (8th Cir. 1986). The ALJ was in the best position to
gauge the credibility of testimony, and his findings on Plaintiff’s subjective complaints are granted
deference. See Estes v. Barnhart, 275 F.3d 722, 724.
The Court’s careful review of the record shows that, in addition to the reasons the ALJ
provided, other evidence supports the ALJ's physical RFC determination. Plaintiff stated in his
Function Report he could walk an eighth of a mile without stopping and resting and could resume
after only a few minutes of rest; he could mow his lawn using a riding lawnmower; he could drive
himself; he went out about three to four times a week; and was capable of caring for himself and his
pets. (Tr. 205-208). At the hearing, Plaintiff also testified he could walk a distance of about two
football fields and work on chores for a couple of hours with short breaks. (Tr. 57-58). The State’s
consulting physicians determined Plaintiff had no severe impairments. The Court also notes there
is no evidence in the record showing Plaintiff sought treatment from specialists, received a
recommendation of surgery, or completed physical therapy treatment. (Tr. 31-32).
The Court concludes substantial evidence supported the ALJ's RFC determination and his
determination was based on all the relevant evidence in the record.
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 17th day of November 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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