Luttrell v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on January 16, 2015. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JAMES LEE LUTTRELL

v.

PLAINTIFF

CASE NO.

13-3117

CAROLYN W. COLVIN, Commissioner
of Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision
of the Commissioner of Social Security Administration (Commissioner) denying his claim for a
period of disability and disability insurance benefits (DIB) and supplemental security income
(“SSI”) under Title II of the Social Security Act (Act), 42 U.S.C. § 423(d)(1)(A). 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:
The plaintiff filed an applications for DIB on June 20, 2011, alleging an onset date of
January 31, 2010, due to plaintiff’s Post laminectomy Syndrome, Lumbosacral Radiculitis,
Spondylosis of Lumbosacral Joint, Gout, Diabetes, and Depression (T. 180). Plaintiff’s
applications were denied initially and on reconsideration. Plaintiff then requested an
administrative hearing, which was held on September 10, 2012. Plaintiff was present and
represented by counsel.
At the time of the administrative hearing, plaintiff was 61 years of age and possessed a
-1-

10th grade education. The Plaintiff had past relevant work (“PRW”) experience as a
groundskeeper for a school district and manager of a self storage area (T. 181).
On November 30, 2012, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s post-laminectomy syndrom, lumbar spine disorder, diabetes mellitus, type 2,
obesity and hearing loss did not meet or equal any Appendix 1 listing. T. 15. The ALJ found
that plaintiff maintained the residual functional capacity (“RFC”) to perform medium work
except he can never climb ladders, ropes and scaffolds, and he can frequently bend, stoop, kneel,
crouch and crawl. He also determined that plaintiff could occasionally walk on uneven terrain ,
work at heights and operate foot controls with his left lower extremity, but he was limited to
occupations that do not require fine hearing capability. T. 15. With the assistance of a
vocational expert, the ALJ then determined Plaintiff could perform his past relevant work.
II. Applicable Law:
This court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “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.” Id. As long as there is substantial
evidence in the record to support the Commissioner’s decision, the court may not reverse the
decision simply because substantial evidence exists in the record to support a contrary outcome,
or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742,
747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent positions from the
-2-

evidence, and one of those positions represents the Secretary’s findings, the court must affirm the
decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
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 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)(c). A plaintiff
must show that his disability, not simply his 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 him to apply 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 residual functional capacity. See McCoy v. Schweiker, 683 F.2d
1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
III. Discussion:
The court has reviewed the Briefs filed by the Parties, the Transcript of the proceedings
before the Commission, including a review of the hearing before the ALJ, the medical records,
and relevant administrative records and finds the ALJ's decision is supported by substantial
evidence.

-3-

A. Severe Impairment:
The Plaintiff contends the ALJ erred in failing to find that Plaintiff had a sever
impairment involving his right shoulder. (ECF No. 7, p. 3). The Plaintiff bases this claim upon a
report by a treating physician, Dr. Haghi, in 2008 that the Plaintiff had limitations in shoulder
range (T. 396) and that he had medically imposed work restriction of not reaching above his
shoulder with his right arm, lifting greater than 10 pounds or climbing ladders. (Id.). In February
2008, Plaintiff told Dr. Haghi that his shoulder was functional, that he was pleased with its
recovery, and he wanted to return to full duty at work (Tr. 14, 394-95). The record reveals that
Dr. Haghi noted that the “patient is released to return to modified duty with the following
restriction on 03/12/2008 through 04/16/2008". (T. 389). The restrictions were only for the
specified time in the report.
In addition the Plaintiff continued to work until March 2010. On March 17, 2010 his
medical records indicate that he had “just moved to the valley recently because lost his job and
wife was dx with terminal CA. Wife is now in hospice.” (T. 322). At the hearing the Plaintiff,
when asked why he stopped working at the storage, stated that “my wife passed away and we
were hired as a couple. So we were terminated because we were hired as a couple and they
wanted a couple to continue that. So we moved away.” (T. 52). The Plaintiff then tries to qualify
that response by saying that he was “having trouble with my back even then” and the doctor told
him not to work. (Id.)1.
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
1

The court cannot find any evidence to support this statement.

-4-

(8th Cir. 2006) (quoting 20 C.F.R. § 404.1520(c)). If the impairments result in no more than
minimal functional limitations, the impairments are not severe. Pepper ex rel. Gardner v.
Barnhart 342 F.3d 853, 854 (C.A.8 (Mo.),2003); Social Security Ruling 96-3p. The claimant
has “the burden ... of showing ... that [s]he has a medically severe impairment or combination of
impairments.” Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 2294 n. 5, 96 L.Ed.2d
119 (1987). Riley v. Shalala 18 F.3d 619, 621 (C.A.8 (Ark.),1994).
The ALJ observed that Plaintiff’s most recent medical records did not show ongoing
complaints of right shoulder pain (Tr. 14, 258-329). In addition, in March 2011, Plaintiff visited
Robert MacArthur, M.D., a consultative orthopedist, and his examination revealed no tenderness,
spasm, atrophy, or decreased range of motion in his shoulders (Tr. 14, 353-59).
The burden is on the Plaintiff to show that the impairment is sever and the Plaintiff
clearly failed to establish that burden.
B. Treating Physician Discounted
The Plaintiff next argues that the ALJ erred in giving controlling weight to the opinion of
the one-time consultive examiner over the opinions of his treating physicians. Dr. Catherine
Potyondy (T. 16, 19, 398) and Dr. Kevin Jackson (T. 19, 372-373) found significant restrictions
on the Plaintiff’s ability to do work related activity. Dr. Robert MacArthur, a board certified
orthopedist, found the Plaintiff to be able to lift 50 pounds occasionally and 25 pounds frequently
(T. 358), and had some postural and agility limitations (T. 359).
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is defined as the individual’s maximum remaining ability to do sustained
work activity in an ordinary work setting “on a regular and continuing basis.” 20 C.F.R. §§
-5-

404.1545 and 416.945; Social Security Ruling (SSR) 96-8p (1996). 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 descriptions of 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). The United States Court of Appeals for 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).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering
medical evidence exclusively. Cox v. Astrue, 495 F. 3d 614 at 619 citing Lauer v. Apfel, 245
F.3d 700 at 704; Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir.2000) (per curiam) (“To the extent
[claimant] is arguing that residual functional capacity may be proved only by medical evidence,
we disagree.”). Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner.*620 20 C.F.R. §§
416.927(e)(2), 416.946 (2006).
When determining disability benefits claimant's residual functional capacity (RFC), the
ALJ must consider, in addition to medical evidence, the observations of treating doctors and
others and the claimant's own description of her limitations. 20 C.F.R. § 404.1545. See
Willcockson v. Astrue, 540 F.3d 878 (C.A.8 (Mo.),2008). The opinion of a treating physician is
accorded special deference and will be granted controlling weight when well-supported by
-6-

medically acceptable diagnostic techniques and not inconsistent with other substantial evidence
in the record. 20 C.F.R. § 404.1527(d)(2); Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir.
2000).
Under the Social Security regulations, the amount of weight given to a non-controlling
medical opinion is determined by applying the following factors: (1) whether the source has
examined the claimant; (2) the length, nature, and extent of the treatment relationship and the
frequency of examination; (3) the extent to which the relevant evidence, “particularly medical
signs and laboratory findings,” supports the opinion; (4) the extent to which the opinion is
consistent with the record as a whole; (5) whether the opinion is related to the source's area of
specialty; and (6) other factors “which tend to support or contradict the opinion.” 20 C.F.R. §§
404.1527(d), 416.927(d); See Owen v. Astrue 551 F.3d 792, 800 (C.A.8 (Iowa),2008) citing
Wagner, 499 F.3d at 848. (concluding that ALJ properly considered claimant's “noncompliance
for purposes of determining the weight to give [doctor's] medical opinions”); Crease v. Astrue
2012 WL 380277, 4 (N.D.Cal.) (N.D.Cal.,2012).
See Halverson v. Astrue, 600 F.3d 922, 929-30 (8th Cir. 2010) (explaining that “[w]hen a
treating physician’s opinions are inconsistent or contrary to the medical evidence as a whole, they
are entitled to less weight” (internal quotation marks and citation omitted)); Wildman v. Astrue,
596 F.3d 959, 964 (8th Cir. 2010) (holding that the ALJ properly discounted the treating
physician’s opinion that consisted of three checklist forms, cited no medical evidence, and
provided little to no elaboration); Reed v. Barnhart, 399 F.3d 917, 921 (8th Cir. 2005)
(recognizing that “[w]e have upheld an ALJ’s decision to discount a treating physician’s
[medical source statement] where the limitations listed on the form stand alone, and were never
-7-

mentioned in [the physician’s] numerous records o[f] treatment nor supported by any objective
testing or reasoning” (first and second alterations added) (internal quotation marks and citation
omitted)).
In March Dr. Haghi noted that Plaintiff’s activities of daily living had not been affected
(Tr. 14, 395). As noted above Dr. Haghi released the Plaintiff to return to work which he did
until his wife became terminally ill. The loss of the Plaintiff’s job was attributable to his wife’s
illness and not to any condition associated with the Plaintiff.
The Plaintiff alleged an onset date of January 31, 2010 (T. 176). As noted above he
continued to work until March 2010 when his wife became terminally ill. In Johnson v. Apfel,
240 F.3d 1145, 1148-49 (8th Cir.2001), the court stated “[a]cts which are inconsistent with a
claimant's assertion of disability reflect negatively upon that claimant's credibility.” See Goff v.
Barnhart, 421 F.3d 785, 793 (8th Cir.2005) (holding that working after the onset of an
impairment is some evidence of an ability to work).
In June 2010, Catherine Potyondy, M.D., noted that Plaintiff reported back pain and, on
examination, he had normal strength and no atrophy and normal straight leg raise test, but had
some decreased range of motion on extension with lateral flexion on the left and the left
sacroiliac joint (SI) area (Tr. 16, 19, 277-78, 280-81). Dr. Potyondy diagnosed Plaintiff with
spondylosis of the lumbosacral joint and lumbosacral radiculitis (Tr. 16, 191, 281). Dr. Potyondy
placed Plaintiff on modified activity restriction such that Plaintiff could not stand continuously
more than 15 minutes at a time and no more than 1 hour a day; walk continuously more than 20
minutes at a time and no more than 1 hour per day; sit continuously more than 30 minutes at one
time and no more than 4 hours per day; continuously bend at the waist; continuously twist the
-8-

torso/spine; lift/carry more than 20 pounds for 5 minutes; and push/pull (Tr. 16, 19, 398). In
December 2010, Dr. Potyondy’s physical examination of Plaintiff showed normal strength
without atrophy and a normal straight leg raise test, but he also showed some decreased range of
motion on extension with lateral flexion on the left and tenderness in the SI area (Tr. 14, 19,
269-70.
In December 2010, Dr. Potyondy’s physical examination of Plaintiff showed normal
strength without atrophy and a normal straight leg raise test, but he also showed some decreased
range of motion on extension with lateral flexion on the left and tenderness in the SI area (Tr. 14,
19, 269-70. In December 2010, Dr. Potyondy’s physical examination of Plaintiff showed normal
strength without atrophy and a normal straight leg raise test, but he also showed some decreased
range of motion on extension with lateral flexion on the left and tenderness in the SI area (Tr. 14,
19, 269-70
The ALJ found that Dr. Potyondy's examination findings were inconsistent with the
restrictions she assessed (Tr. 19). See Halverson v. Astrue, 600 F.3d 922, 929-30 (8th Cir. 2010)
(explaining that “[w]hen a treating physician’s opinions are inconsistent or contrary to the
medical evidence as a whole, they are entitled to less weight”
In March 2012, Plaintiff visited Kevin Jackson, M.D., and only complained of difficulty
hearing (Tr. 19, 376). Plaintiff reported that he had not taken medications for six months (Tr. 19,
376). The record also reveals that the Plaintiff was consistently told to stop smoking by his
treating physicians but refused to do so. In addition to the results of objective medical tests, an
ALJ may properly consider the claimant's noncompliance with a treating physician's directions,
Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir.2001), including failing to take prescription
-9-

medications, Riggins, 177 F.3d at 693, seek treatment, Comstock v. Chater, 91 F.3d 1143,
1146-47 (8th Cir.1996), and quit smoking. Kisling v. Chater, 105 F.3d 1255, 1257 (8th
Cir.1997); Choate v. Barnhart 457 F.3d 865, 872 (C.A.8 (Mo.),2006).
Dr. Jackson’s physical examination revealed no musculoskeletal abnormalities, and Dr.
Jackson documented that Plaintiff’s gait was within normal limits (Tr. 19, 376). Later in March
2012, Plaintiff reported no complaints concerning his back (Tr. 19, 378). Dr. Jackson’s physical
examination showed a normal gait and no musculoskeletal abnormalities (Tr. 19. 378). In April
2012, Plaintiff’s examination revealed no musculoskeletal abnormalities and his gait was normal
(Tr. 19, 379).
In March 2011, Dr. MacArthur, a consultative orthopedic physician, documented that
Plaintiff had negative straight let raise tests, normal range of motion in his hips with no swelling
or tenderness, 5/5 motor strength5 in his upper and lower extremities, normal muscle bulk and
tone, normal sensory examination, normal and equal deep tendon reflexes (DTR’s) in his upper
and lower extremities, normal pulses, normal Romberg, the ability to walk without difficulty, and
the ability to walk on his toes and heels (Tr. 17, 353-59). Dr. MacArthur noted pain with
hyperexten sion at the left lateral bending radiating to his left buttock (Tr. 17, 357). Dr.
MacArthur observed no gross deformities, tenderness, spasm, or atrophy, and ranges of motion
were within normal limits in Plaintiff’s shoulders (Tr. 17, 357). Dr. MacArthur opined that
Plaintiff was able to push, pull, lift and carry 50 pounds occasionally and 25 pounds frequently;
walk and stand 6 hours per day; sit without restrictions; bend, kneel, stoop, crawl, and crouch
frequently; walk on uneven terrain; climb ladders; work with heights; and had no restrictions
with the use of his hands (Tr. 19, 358-59).
-10-

Opinions of specialists on issues within their areas of expertise are “generally” entitled to
more weight than the opinions of non-specialists. See 20 C.F.R. §§ 404.1527(d)(5),
416.927(d)(5). Guilliams v. Barnhart 393 F.3d 798, 803 (C.A.8 (Mo.),2005), 20 C.F.R. §
404.1527 . “When one-time consultants dispute a treating physician's opinion, the ALJ must
resolve the conflict between those opinions.” See Wildman v. Astrue 596 F.3d 959, 969 (C.A.8
(Iowa),2010) citing Wagner v. Astrue, 499 F.3d 842, 849 (8th Cir.2007). The ALJ gave Dr.
MacArthur's opinion significant weight because it was supported by and consistent with the
evidence of record as a whole (Tr. 19). Thus, the ALJ properly weighed Dr. MacArthur's opinion.
See Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir. 2004) (ALJ properly relied on
consultative examination that was consistent with treating records).
C. Ability to Perform Past Relevant Work.
The Plaintiff’s past relevant work was as a storage facility rental clerk. A vocational
expert testified that Plaintiff’s storage facility rental clerk job was an unskilled, light exertional
level job accordingly to the Dictionary of Occupational Titles (DOT) (Tr. 55-56). See DOT,
295.367-026, 1991 WL 672594 (4th ed. revised 1991). The vocational expert testified that the
job was medium as Plaintiff performed it (Tr. 56). Based upon this evidence, the ALJ determined
that Plaintiff was able to return to his past job as a storage facility rental clerk as he performed it
and as it is generally performed (Tr. 20). Based upon the RFC determined by the ALJ the
plaintiff could return to his past relevant work.
D. Grid Determination.
The ALJ properly found Plaintiff not disabled at step four (Tr. 20). Plaintiff reported that
his past relevant work included storage facility rental clerk (Tr. 42-43, 181, 208-213). In response
-11-

to a hypothetical question from the ALJ that included all limitations supported by the record, the
vocational expert testified that Plaintiff was able to perform his past relevant work (Tr. 15, 20,
55-57). Based upon the vocational expert’s testimony, the ALJ found that Plaintiff could return
to his past relevant work (Tr. 20).
In addition, the ALJ considered Plaintiff’s activities of daily living (Tr. 14, 16, 18). See
20 C.F.R. § 404.1529(c)(3)(I). Plaintiff was able to attend to his personal care, did laundry,
shopped for groceries, visited the bank, prepared meals, washed dishes, swam for exercise,
vacuumed, dusted, talked on the phone, walked outside, drove a car, watched television, and was
able to handle money and count change (Tr. 14, 16, 18, 187-97, 365). These activities do not
support plaintiff’s claim of disability. See Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996)
(ability to care for one child, occasionally drive, and sometimes go to the store); Nguyen v.
Chater, 75 F.3d 429, 430-31 (8th Cir. 1996) (ability to visit neighbors, cook, do laundry, and
attend church); Novotny v. Chater, 72 F.3d at 671 (ability to carry out garbage, carry grocery
bags, and drive); Johnston v. Shalala, 42 F.3d 448, 451 (8th Cir. 1994) (claimant’s ability to
read, watch television, and drive indicated his pain did not interfere with his ability to
concentrate); Woolf v. Shalala, 3 F.3d 1210, 1213-1214 (8th Cir. 1993) (ability to live alone,
drive, grocery shop, and perform housework with some help from a neighbor)
IV. Conclusion:
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision, and thus the decision should be affirmed. The
undersigned further finds that the plaintiff’s Complaint should be dismissed with prejudice.

-12-

Dated this 16th day of January 2015.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
U. S. MAGISTRATE JUDGE

-13-