Barnes v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 24, 2014. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
TONY BARNES
vs.

PLAINTIFF
Civil No. 4:13-cv-04029

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Tony Barnes (“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 his application for
Disability Insurance Benefits (“DIB”) 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 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.
1. Background:
Plaintiff’s application for DIB was filed on December 14, 2010. (Tr. 8, 108-114). Plaintiff
alleged he was disabled due to back and hip problems. (Tr. 136). Plaintiff alleged an onset date of
December 31, 2009 which was later amended to February 28, 2010. (Tr. 8). This application was
denied initially and again upon reconsideration. (Tr. 51-61). Thereafter, Plaintiff requested an

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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.”

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administrative hearing on his application and this hearing request was granted. (Tr. 62-63).
Plaintiff’s administrative hearing was held on December 14, 2011. (Tr. 22-50). Plaintiff
was present and was represented by counsel, Greg Giles, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Richard Bowden testified at this hearing. Id. At the time of this hearing, Plaintiff
was forty-eight (48) years old, which is defined as a “younger person” under 20 C.F.R. §
404.1563(c), and had a GED. (Tr. 26).
On March 29, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 8-16). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2014. (Tr. 10, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since December 31, 2009, his
alleged onset date. (Tr. 10, Finding 2).
The ALJ also determined Plaintiff had the severe impairments of degenerative disc disease
in the spine and degenerative joint disease in the bilateral hip. (Tr. 10, Finding 3). The ALJ then
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. 10,
Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 11-14). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC to perform light work and can occasionally climb with ropes, ladders, or scaffolds, balance,
stoop, kneel, and crouch. (Tr. 11, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 14, Finding 6). The ALJ

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found Plaintiff unable to perform his PRW as a millwright. Id. The ALJ, however, also determined
there was other work existing in significant numbers in the national economy Plaintiff could
perform. (Tr. 15-16, Finding 10). The VE testified at the administrative hearing regarding this issue.
(Tr. 45-47). Based upon that testimony, the ALJ determined Plaintiff retained the ability to perform
other work such as a hardware assembler with 18,000 such jobs in region and 180,000 such jobs in
the nation, an electronics assembler with 8,000 such jobs in region and 80,000 such jobs in the
nation, and a belt inspector with 4,200 such jobs in region and 42,000 such jobs in the nation. (Tr.
15). Given this, the ALJ determined Plaintiff had not been under a disability as defined in the Act
from December 31, 2009 through the date of his decision. (Tr. 15, Finding 10).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 4). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-3).
On March 22, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on March 26, 2013. ECF No. 5. Both Parties have filed appeal briefs.
ECF Nos. 8, 9. 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

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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

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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:
Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to find Plaintiff met
a Listing, (B) in discrediting Plaintiff’s physician, (C) in assessing Plaintiff’s credibility, and (D)
in failing to present a proper hypothetical to the VE. ECF No. 8, Pgs. 12-20. In response, the
Defendant argues the ALJ did not err in any of his findings. ECF No. 9.
A. Listings
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 degenerative disc disease
in the spine and degenerative joint disease in the bilateral hip. (Tr. 10, 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 his 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.

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Plaintiff appears to argue he meets a Listing under Section 1.02(a) for major dysfunction of
a joint and Listing 1.04 for disorders of the spine based on a claim he has an inability to ambulate
effectively. ECF No. 8, Pgs. 13-15. Defendant argues Plaintiff has failed to establish he meets
theses Listings. ECF No. 9, Pgs. 4-8.
Impairments found under Listing 1.02(A) for major joint dysfunction requires evidence of:
major dysfunction of a joint characterized by gross anatomical
deformity (e.g., subluxation, contracture, bony, or fibrous ankylosis,
instability) and chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion of the affected joint,
and findings on appropriate medically acceptable imaging of joint
space narrowing, bony destruction, or ankylosis of the affected joint,
with involvement of one major peripheral weight-bearing joint (i.e.
hip, knee, or ankle), resulting in an inability to ambulate effectively,
as defined in 1.00B2b.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02(A).
A listing under 1.04(C) for disorders of the spine, requires evidence of:
disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve
root (including the cauda equina) or the spinal cord with Lumbar
spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined in 1.00B2b.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04.
An “inability to ambulate effectively” is an extreme limitation of the ability to walk, i.e., an
impairment that interferes very seriously with the individual’s ability to independently initiate,
sustain, or complete activities. Ineffective ambulation is having insufficient lower extremity
functioning to permit independent ambulation without the use of a hand-held assistive device(s) that
limits the functioning of both upper extremities. See 20 C.F.R. pt. 404, subpt. P, app. 1, §
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1.00B2b(1). To ambulate effectively, individuals must be capable of sustaining a reasonable walking
pace over a sufficient distance to be able to carry out activities of daily living, and they must be able
to travel without companion assistance to and from a place of employment or school. See 20 C.F.R.
pt. 404, subpt. P, app. 1, § 1.00B2b(2). Examples of ineffective ambulation include, but are not
limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability
to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory activities, such as shopping and banking,
and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. Id.
In this matter, Plaintiff has failed to establish he is unable to ambulate effectively. Plaintiff
has no evidence that he has to use a walker, two crutches, or two canes to walk, or that a physician
prescribed these items. In fact, Plaintiff indicated he did not use an assistive device to walk. (Tr.
161). In support of Plaintiff’s argument that he meets these Listings, Plaintiff only relies on a past
accident and surgeries involving a motorcycle accident in 1995 and hip replacement surgery in 2000
and 2001. However, Plaintiff went back to work as a millwright after this surgery, (which is heavy,
manual labor type work), and continued working full-time until February 2010. (Tr. 123, 273, 279).
Medical evidence also fails to support Plaintiff’s claims. From December 2010, through
December 2011, Plaintiff was seen by Dr. Roshan Sharma. (Tr. 273-275, 294-301, 308-311,
504-508). These records provide no support for an inability to ambulate effectively. In fact, Dr.
Sharma noted in November 2011 that Plaintiff did not require an assistive device to stand or walk.
(Tr. 499).
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.

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B. Evaluation of Medical Opinions
The ALJ 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 had the RFC to perform light work and could
occasionally climb with ropes, ladders, or scaffolds, balance, stoop, kneel, and crouch. (Tr. 11,
Finding 4). Plaintiff claims substantial evidence does not support the ALJ’s RFC determination
because the ALJ erred in his treatment of the opinions of Dr. Roshan Sharma who prepared a
consultative report. Defendant argues the ALJ considered the opinions of Dr. Sharma but gave them
proper weight based on they being inconsistent with the evidence in the record.
Social Security Regulations and case law state that a treating physician's opinion will be
granted “controlling weight,” provided it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
record.” See SSR 96-2p; Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000)(citing 20 C.F.R.
§ 404.1527(d)(2)). An ALJ is required to give good reasons for the particular weight given to a
treating physician’s evaluation. See Prosch, 201 F.3d at1013 (citing 20 C.F.R § 404.1527(d)(2), and
SSR 96-2p). An ALJ may disregard the opinion of a treating physician only where other medical
assessments “are supported by better or more thorough medical evidence,” or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions. Id. at 1013
(quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), and Cruze v. Chater, 85 F.3d 1320,
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1324-25 (8th Cir. 1996)).
On November 28, 2011, Dr. Sharma preformed an Ability To Do Work-Related Activities
report on Plaintiff. (Tr. 497-500). Dr. Sharma’s report assessed restrictive limitations including a
finding Plaintiff could only lift and carry less than 10 pounds; stand and walk less than 2 hours; sit
only 2 hours; and would be absent from work 2 times per month. Id.
The ALJ has the responsibility to determine which findings are inconsistent and which
opinions should be given greater weight than other opinions. See Brown v. Astrue, 611 F.3d 941,
951-52. In this matter, the ALJ gave less weight to the opinions of Dr. Sharma and he set forth
several reasons in his analysis for doing so. (Tr. 14). The ALJ noted, Dr. Sharma’s report was
unsupported by medical findings; was internally inconsistent with his own records; and conflicted
with other objective medical evidence and non-medical evidence of record. Id. The ALJ properly
found Dr. Sharma’s findings and examination were inconsistent with other evidence. As a result,
the ALJ did not err in his treatment of Dr. Sharma’s opinions.
C. ALJ’s Credibility Determination
Plaintiff also claims the ALJ erred in his credibility determination. ECF No. 8, Pages 17-19.
In response, Defendant argues that the ALJ properly evaluated and discredited Plaintiff’s subjective
complaints pursuant to the directives of Polaski. ECF No. 9, Pages 18-20.
In assessing the credibility of a claimant, the ALJ is required to examine and to apply the
five factors from Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) or from 20 C.F.R. § 404.1529
and 20 C.F.R. § 416.929.2 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to consider
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Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 require the analysis of two
additional factors: (1) “treatment, other than medication, you receive or have received for relief of your pain or other
symptoms” and (2) “any measures you use or have used to relieve your pain or symptoms (e.g., lying flat on your
back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.).” However, under Polaski and its progeny,
the Eighth Circuit has not yet required the analysis of these additional factors. See Shultz v. Astrue, 479 F.3d 979,

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are as follows: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the
pain; (3) the precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of
medication; and (5) the functional restrictions. See Polaski, 739 at 1322.
The factors must be analyzed and considered in light of the claimant’s subjective complaints
of pain. See id. The ALJ is not required to methodically discuss each factor as long as the ALJ
acknowledges and examines these factors prior to discounting the claimant’s subjective complaints.
See Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). As long as the ALJ properly applies these
five factors and gives several valid reasons for finding the Plaintiff’s subjective complaints are not
entirely credible, the ALJ’s credibility determination is entitled to deference. See id.; Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). The ALJ, however, cannot discount Plaintiff’s
subjective complaints “solely because the objective medical evidence does not fully support them
[the subjective complaints].” Polaski, 739 F.2d at 1322.
When discounting a claimant’s complaint of pain, the ALJ must make a specific credibility
determination, articulating the reasons for discrediting the testimony, addressing any
inconsistencies, and discussing the Polaski factors. See Baker v. Apfel, 159 F.3d 1140, 1144 (8th
Cir. 1998). The inability to work without some pain or discomfort is not a sufficient reason to find
a Plaintiff disabled within the strict definition of the Act. The issue is not the existence of pain, but
whether the pain a Plaintiff experiences precludes the performance of substantial gainful activity.
See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
Plaintiff argues the ALJ erred in assessing his credibility as it related to the limiting effects
of his impairments and did not fully consider his subjective complaints as required by Polaski. The

983 (2007). Thus, this Court will not require the analysis of these additional factors in this case.

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Defendant argues the ALJ properly evaluated Plaintiff’s subjective complaints of pain in compliance
with Polaski.
In the present action, this Court finds the ALJ properly addressed and discounted Plaintiff’s
subjective complaints. In his opinion, the ALJ addressed the factors from Polaski and 20 C.F.R. §
416.929, and stated inconsistencies between Plaintiff’s testimony and the record. (Tr. 11-14).
Specifically, the ALJ noted the following: (1) Absence of objective medical findings to support
Plaintiff’s alleged disabling pain, (2) Plaintiff’s described activities of daily living are not limited
to any serious degree, (3) No physician has placed a level of limitation on Plaintiff’s activities
comparable to those described by Plaintiff, (4) Only had received conservative treatment for his
physical problems which was primarily pain medicine, and (5) Plaintiff testified he had been looking
for part-time work and had filed for unemployment indicating he was ready, willing, and able to
work Id.
These findings are valid reasons supporting the ALJ’s credibility determination, and this
Court finds the ALJ’s credibility determination is supported by substantial evidence and should be
affirmed. See Lowe, 226 F.3d at 971-72. Accordingly, the ALJ did not err in discounting Plaintiff’s
subjective complaints of pain.
D. Questioning of VE
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)
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(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 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 light work and could occasionally climb
with ropes, ladders, or scaffolds, balance, stoop, kneel, and crouch. (Tr. 11, 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. 45-46). The ALJ found a significant
number of jobs existed in the national economy which Plaintiff could perform. (Tr. 15-16, Finding
10). Relying on the VE testimony, the ALJ found Plaintiff was not under a disability as defined by
the Act. (Tr. 16). Plaintiff argues that because the ALJ’s hypothetical question was based upon the
RFC finding, the hypothetical question was defective and unsupported by the evidence because it
did not contain all of his limitations. ECF No. 8, Pg. 20.
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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
to support the ALJ’s decision.
4. Conclusion:
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 24th day of February 2014.

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

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