Mills v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 21, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CHARLENE JUANITA MILLS
Civil No. 4:11-cv-04011
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Charlene Juanita Mills (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her applications for Disability
Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and a period of disability under
Titles II and XVI 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 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 applications for DIB and SSI on February 27, 2008. (Tr. 42, 102-107).
Plaintiff alleged she was disabled due to problems with her left ankle and both feet. (Tr. 121). Plaintiff
alleged an onset date of September 27, 2007. (Tr. 42). These applications were denied initially and
again upon reconsideration. (Tr. 51-61). Thereafter, Plaintiff requested an administrative hearing on
her applications, and this hearing request was granted. (Tr. 62).
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.”
Plaintiff’s administrative hearing was held on February 19, 2009, in Texarkana, Arkansas. (Tr.
7-32). Plaintiff was present and was represented by counsel, Stephen Tedder, at this hearing. Id.
Plaintiff, Medical Expert Dr. Alice Cox, and Vocational Expert (“VE”) Elizabeth Clem, testified at this
hearing. Id. At the time of this hearing, Plaintiff was thirty-nine (39) years old, which is defined as a
“younger person” under 20 C.F.R. § 404.1563©, and has a high school education and some college. (Tr.
112, ECF No. 10, Pg. 2).
On May 28, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s application for
DIB and SSI. (Tr. 42-50). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2011. (Tr. 44, Finding 1). The ALJ determined Plaintiff
had not engaged in Substantial Gainful Activity (“SGA”) since September 27, 2007, her alleged onset
date. (Tr. 44, Finding 2).
The ALJ determined Plaintiff had the severe impairments of obesity and left foot and ankle
problems. (Tr. 44, Finding 3). The ALJ also determined Plaintiff’s 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. 45, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 45-48, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her claimed
limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC to
perform sedentary work activity except she cannot balance, climb ladders, ropes or scaffolds; cannot
work at unprotected heights or around dangerous machinery; has limited ability to reach overhead with
the right upper extremity, but no limitations with the left upper extremity; and would not be able to work
in a high stress environment. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr.48, Finding 6). The ALJ
determined Plaintiff’s PRW included work as a chicken plant line worker. (Tr. 48). Based upon her
RFC, the ALJ determined Plaintiff would be unable to perform this PRW. Id. The ALJ did, however,
find Plaintiff retained the ability to perform other work existing in significant numbers in the national
economy. (Tr. 48-49, Finding 10). The ALJ based this finding upon the testimony of the VE. Id.
Specifically, the VE that a hypothetical individual with Plaintiff’s limitations retained the ability to
perform work as a receptionist with 4,100 such jobs in the region and 648,000 in the national economy,
telephone sales/marketing with 2,300 such jobs in the region and 188,000 in the national economy, and
front desk clerk with 3,700 such jobs in the region and 650,000 in the national economy. Id. The ALJ
then determined Plaintiff had not been under a disability, as defined by the Act, from September 27,
2007 through the date of his decision. (Tr. 49, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision. (Tr.
6). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr.
1-5). On January 21, 2011, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on February 9, 2011. ECF No. 5. Both Parties have filed appeal briefs. ECF
Nos. 10, 11. 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) (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 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. 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
and that 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 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).
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 10 at 5-9. Specifically, Plaintiff claims the ALJ erred (1)
in evaluating her RFC, (2), failed to consider her impairments in combination and (3) failed to find her
impairments met a listing. In response, the Defendant argues the ALJ did not err in any of his findings.
ECF No. 11.
A. 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).
Plaintiff alleged she was disabled due to problems with her left ankle and both feet. (Tr. 121).
In this matter, the ALJ determined Plaintiff retained the RFC to perform sedentary work activity except
she cannot balance, climb ladders, ropes or scaffolds; cannot work at unprotected heights or around
dangerous machinery; has limited ability to reach overhead with the right upper extremity, but no
limitations with the left upper extremity; and would not be able to work in a high stress environment.
(Tr. 45, Finding 5).
On January 19, 2007, Plaintiff was seen for left ankle pain by Dr. John Gregory. At this time,
Dr. Gregory released Plaintiff to return to work. (Tr. 172). On May 4, 2007, Plaintiff returned to Dr.
Gregory with complaints about her right foot. (Tr. 172). Plaintiff returned to work and was allowed
to sit for part of the day as a special accommodation. Id. Plaintiff indicated her employer eventually
stopped permitting her to sit and she reported additional difficulty with pain in her right foot. (Tr. 172).
Dr. Gregory found Plaintiff was markedly tender over the origin of the plantar fascia and she had hallus
valgus. (Tr. 172). Dr. Gregory indicated he would inject her foot during this visit. Id. On May 18,
2007, Plaintiff returned and reported reasonable relief from the injection but still had some difficulty
standing for long periods. (Tr. 172).
On June 18, 2007, Plaintiff was seen by Dr. Gregory and indicated she had pain in the left ankle.
Plaintiff was prescribed Lortab for pain relief. (Tr. 172). On July 2, 2007, Plaintiff returned and stated
she had obtained good relief from the medication, but was not allowed to wear her brace at work. (Tr.
171). Dr. Gregory referred Plaintiff to Dr. Eric Gordon for specialized care of her left ankle and feet.
On July 23, 2007, Plaintiff’s underwent an MRI exam. (Tr. 175). The MRI revealed a large
osteochondral lesion of the left talus with a loose fragment, synovitis in the posterior left ankle joint, and
ligament thickening. In addition, the MRI revealed arthrosis of the dorasal talonavicular joint with
effusion, and insertional tendinopathy of the achilles. Id.
Plaintiff was seen by Dr. Gordon on August 10, 2007 for her left ankle pain. (Tr. 188-189). On
physical exam, Plaintiff was 5' 4" and weighed 295 pounds. (Tr. 187). Dr. Gordon felt her obesity was
a contributing factor to her left ankle problems. (Tr. 188). Dr. Gordon reviewed the MRI results and
wanted to try to treat Plaintiff conservatively. Id. Dr. Gordon recommended she stay off work or do
light duty work. Id. Plaintiff returned to Dr. Gordon on September 4, 2007. (Tr. 187). Dr. Gordon
indicated Plaintiff had been unsuccessful in attempting to return to her job standing on concrete eight
hours a day. (Tr. 187). Dr. Gordon recommended Plaintiff return to light duty limited to four hours of
standing daily. Id. Dr. Gordon also indicated Plaintiff could perform desk work if her employer would
accommodate her. Id.
Plaintiff underwent left ankle arthroscopy surgery in September 2007. (Tr. 186). On October
9, 2007, Plaintiff followed up with Dr. Gordon and indicated she was doing well with no significant
pain. (Tr. 186). Plaintiff returned for a follow up visit with Dr. Gordon on December 4, 2007. (Tr.
184). Dr. Gordon indicated she was progressing well and was capable of doing light duty work. (Tr.
184). Dr. Gordon also recommended Plaintiff lose weight. Id.
On January 8, 2008, Plaintiff returned to Dr. Gordon. (Tr. 183). Plaintiff’s incisions were well
healed with no significant swelling. Id. Plaintiff’s ankle strength was 5/5 and her ankle moved smoothly
with no crepitation. Id. Dr. Gordon reported Plaintiff’s range of motion and strength had progressed
nicely and he recommended she continue her assigned home exercises. Id. Dr. Gordon released Plaintiff
to return to full normal work activities. Id.
On April 1, 2008, a Physical RFC Assessment was prepared on Plaintiff. (Tr. 190-197). This
assessment found Plaintiff retained the capacity to perform sedentary work activity with the limitations
set out by the ALJ in his opinion. Id. Additionally, Dr. Alice Cox, who testified at Plaintiff’ hearing,
stated Plaintiff retained the capacity to perform sedentary work with restrictions consistent with the
ALJ’s RFC finding. (Tr. 13).
Because Plaintiff has not met her 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
B. Combination of Impairments
Plaintiff argues the ALJ erred by failing to consider all of her impairments in combination.
However, under the facts in the present case and after a thorough review of the ALJ’s opinion and the
record in this case, this Court finds the ALJ properly considered Plaintiff’s impairments in combination.
The Social Security Act requires the ALJ to consider the combined effect of all of the claimant’s
impairments without regard to whether any such impairment, if considered separately, would be of
sufficient severity. See 20 C.F.R. § 404.1523 (2006). In the present action, in reviewing these claimed
impairments, the ALJ stated Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.”
(Tr. 45, Finding 4) (emphasis added). The ALJ also evaluated Plaintiff’s medical records, examined
Plaintiff’s impairments, and found Plaintiff had a combination of severe impairments. (Tr. 45-48).
These statements are sufficient under Eighth Circuit precedent to establish that the ALJ properly
considered the combined effect of a claimant’s impairments. See Hajek v. Shalala, 30 F.3d 89, 92 (8th
Cir. 1994) (holding that statements such as “the evidence as a whole does not show that the claimant’s
symptoms . . . preclude his past work as a janitor” and “[t]he claimant’s impairments do not prevent him
from performing janitorial work . . .” sufficiently establish that the ALJ properly considered the
combined effects of the plaintiff’s impairments).
Thus, pursuant to the Eighth Circuit’s holding in Hajek, this Court finds the ALJ properly
considered Plaintiff’s impairments in combination. Plaintiff has alleged she suffers from a number of
impairments. However, this Court is not required to find a claimant is disabled simply because he or
she has alleged a long list of medical problems. The ALJ’s opinion sufficiently indicates the ALJ
properly considered the combined effects of Plaintiff’s impairments, and the ALJ properly considered
the severity of the combination of Plaintiff’s impairments. See Hajek, 30 F.3d at 92.
The ALJ must determine whether Plaintiff has a severe impairment that significantly limits the
physical or mental ability to perform basic work activities. A medically determinable impairment or
combination of impairments is severe if it significantly limits an individual’s physical or mental ability
to do basic work activities. See 20 C.F.R. §§ 404.1521 and 416.921.
The ALJ found Plaintiff did suffer from impairments considered to be severe within the meaning
of the Social Security regulations. These impairments included obesity and left foot and ankle problems.
(Tr. 44, Finding 3). However, there was no substantial evidence in the record showing Plaintiff’s
condition was severe enough to meet or equal that of a listed impairment as set forth in the Listing of
Impairments. See 20 C.F.R. pt. 404, subpt. P, app.1. Plaintiff has the burden of establishing that her
impairment(s) meet or equal an impairment set out in the Listing of Impairments. See Sullivan v. Zebley,
493 U.S. 521, 530-31 (1990). Plaintiff has not met this burden.
Plaintiff argues she meets a Listing under Section 1.00, but fails to identify a specific Listing.
Instead, Plaintiff argues the definition of functional loss and states she has an inability to ambulate
effectively with an extreme limitation on her ability to walk. ECF No. 10. Pgs. 8-9.
The medical record evidence, as discussed above, does not support Plaintiff’s claim of an
inability to ambulate effectively with an extreme limitation on her ability to walk. There were no such
findings by any treating physician. Further, Plaintiff’s Function Report and hearing testimony does not
support such a finding. According to Plaintiff’s Function Report, Plaintiff was capable of cooking,
performing some household cleaning, driving, shopping for groceries alone, and she stated she did not
require help when going out. (Tr. 126-130). Plaintiff testified her activities were about the same at the
time of the hearing as those in her Function Report. (Tr. 17). Plaintiff further testified that she could
shop and walk around Wal-mart. (Tr. 20-21).
Plaintiff’s testimony and medical evidence establishes she has the ability to ambulate effectively
and to perform activities of daily living. 20 C.F.R. Pt. 404, Subpt. P, Section 1.00(b)(2). I find
substantial evidence supports the ALJ’s determination that Plaintiff did not have an impairment or
combination of impairments equal to one listed in 20 C.F.R. pt. 404, subpt. P, app.1.
Based on the foregoing, the undersigned finds that 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 21st day of February, 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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