Brown v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 10, 2017. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
SABRINA BROWN
vs.

PLAINTIFF
Civil No. 4:16-cv-04027

NANCY A. BERRYHILL
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Sabrina Brown (“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 her applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) 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.
1. Background:
Plaintiff’s applications for DIB and SSI were filed on February 28, 2014. (Tr. 15, 162-167).
Plaintiff alleged she was disabled due to injured left leg and depression. (Tr. 183). Plaintiff alleged
an onset date of December 21, 2013. (Tr. 15, 58). These applications were denied initially and again
upon reconsideration. (Tr. 15). Thereafter, Plaintiff requested an administrative hearing on her

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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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applications and this hearing request was granted. (Tr. 123-124).
Plaintiff’s administrative hearing was held on September 24, 2015. (Tr. 29-55). Plaintiff
was present and was represented by counsel, Greg Giles, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) James Wallace, testified at the hearing. Id. At the time of this hearing, Plaintiff was
thirty-eight (38) years old and had an eleventh grade education. (Tr. 32-33).
On October 29, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s
applications for DIB and SSI. (Tr. 15-23). In this decision, the ALJ determined Plaintiff met the
insured status requirements of the Act through March 31, 2017. (Tr. 18, Finding 1). The ALJ then
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since December 21,
2013. (Tr. 18, Finding 2).
The ALJ determined Plaintiff had the severe impairments of left leg fracture status-post open
reduction internal fixation, and depression. (Tr. 18, 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. 18, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 19-21). First, the ALJ indicated he 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 with no more than frequent balancing, kneeling,
stooping, crouching, and crawling; must elevate her left leg below table top level while seated; can
maintain concentration and attention sufficiently to perform simple work tasks requiring little
independent judgment and minimal variations; and can have frequent interactions with coworkers,
supervisors, and the public. (Tr. 19, Finding 5).

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The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 22, Finding 6). The ALJ
found Plaintiff was not capable of performing her PRW. Id. The ALJ, however, also determined
there was other work existing in significant numbers in the national economy Plaintiff could perform.
(Tr. 22, Finding 10). The ALJ based this determination upon the testimony of the VE. Id.
Specifically, the VE testified that given all Plaintiff's vocational factors, a hypothetical individual
would be able to perform the requirements of representative occupations such as document preparer
with 12,600 such jobs. Id. Based upon this finding, the ALJ determined Plaintiff had not been under
a disability as defined by the Act from December 21, 2013, through the date of the decision. (Tr. 23,
Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 10). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-7).
On April 5, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on April 5, 2016. ECF No. 5. Both Parties have filed appeal briefs. ECF
Nos. 11, 12. 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 and (B) in the weight given the opinions of Plaintiff’s physicians. ECF No. 11, Pgs. 3-20.
In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 12.
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 left leg fracture status-post
open reduction internal fixation, and depression. (Tr. 18, 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 Listing 1.02(A) for major dysfunction of a weight-bearing joint and

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1.06 for fracture of the femur, tibia, pelvis, or one or more of the tarsal bones. ECF No. 11, Pgs. 3-15.
Both Listings require a showing by Plaintiff that she has an impairment resulting in inability to
ambulate effectively. In this matter, Plaintiff cannot establish she has an inability to ambulate
effectively.
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, §
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.
There is no credible evidence showing Plaintiff is prohibited from ambulating effectively.
Plaintiff has no evidence she has to use a walker, two crutches, or two canes to walk, or that a
physician prescribed these items. In fact, the ALJ noted evidence showing Plaintiff participating in
activities which demonstrated effective ambulation. (Tr. 18). Plaintiff indicated she could engage
in dressing, bathing, performing household chores, attending church, and preparing meals. (Tr. 18,
211-214). Also, medical records showed Plaintiff’s left tibial fracture was completely healed and she
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had a full range of motion in the hip, knee, and ankle. (Tr. 20, 285).
Whether Plaintiff meets a listed impairment is a medical determination and must be
established by medically acceptable clinical and laboratory diagnostic techniques. See 20 C.F.R. §§
404.1525(c), 404.1526(b), 416.925(c), 416.926(b). Plaintiff has not met this burden. 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.
B. ALJ’s Treatment of Treating Physician Opinions
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,
1324-25 (8th Cir. 1996)).
Plaintiff argues the ALJ improperly discredited the opinions of Dr. Roshan Sharma and Dr.
Shailesh Vora. ECF No. 11, Pgs. 15-20. However, Plaintiff’s argument is without merit.
Although Plaintiff argues the ALJ failed to give proper weight to the opinions of Dr. Sharma,
the RFC report prepared by him was completed on November 2, 2015, which was following the
ALJ’s decision, therefore, the ALJ had no opportunity to review the report. (Tr. 1308-1311).
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Similarly, Dr. Vora issued her RFC checklist approximately four months before Plaintiff claims she
became disabled. (Tr. 12, 260-263). The relevant period in this case is between December 21, 2013
(the alleged onset date) through October 29, 2015 (the date of the ALJ’s decision).
Finally, it should be noted Dr. Sharma’s and Dr. Vora’s RFC reports are checkbox
questionnaires. (Tr. 260-263, 1308-1311). Conclusory checkbox forms, like the one at issue, have
little evidentiary value. See Anderson v. Astrue, 696 F.3d 790 (8th Cir. 2012).
Based on the above, I find there was no error in the weight given or the treatment of the
opinions of Dr. Sharma and Dr. Vora.
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 10th day of April 2017.

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

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