Cross v. Social Security Administration Commissioner

Filing 20

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 8, 2018. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
CHARLES LEE CROSS
on behalf of
DONNA CROSS, Deceased
vs.

PLAINTIFF
Civil No. 4:16-cv-04107

NANCY BERRYHILL
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Charles Lee Cross, on behalf of, Donna Cross, deceased, (“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. 7.1 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 March 28, 2011. (Tr. 352-366).
Plaintiff alleged she was disabled due to severe knee and ankle problems, osteoarthritis, stroke, and
congestive heart failure. (Tr. 427). Plaintiff alleged an onset date of January 1, 2005. (Tr. 352).
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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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These applications were denied initially and again upon reconsideration. Id. Thereafter, Plaintiff
requested an administrative hearing on her applications and this hearing request was granted. (Tr.
192).
Plaintiff’s administrative hearing was held on July 15, 2015. (Tr. 76-112). Plaintiff was
present and was represented by counsel, Greg Giles, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Mary May testified at this hearing. Id. At the time of this hearing, Plaintiff was fiftysix (56) years old and had an eleventh grade education. (Tr. 81-82).
On October 27, 2015, the ALJ entered a partially favorable decision denying Plaintiff’s
application for DIB, but granting Plaintiff’s application for SSI. (Tr. 21-34). In this decision, the
ALJ determined the Plaintiff met the insured status requirements of the Act through September 30,
2007. (Tr. 24, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since January 1, 2005. (Tr. 24, Finding 2).
The ALJ determined Plaintiff had the severe impairments of osteoarthritis of the bilateral
knees, degenerative joint disease of the lumbar spine, and morbid obesity. (Tr. 24, 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.
26, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 27-31). 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 for sedentary work, except can only occasionally climb stairs and ramps, but not climb
ladders, ropes, and scaffolds; can occasionally stoop, kneel, crouch, and crawl; and must avoid
concentrated exposure to extreme temperatures, dusts, fumes, gases, odors, and other pulmonary
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irritants. (Tr. 27).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 31, Finding 6). The ALJ
found Plaintiff was unable to perform her PRW. Id. The ALJ also found that on June 21, 2009,
Plaintiff’s age category changed to an individual closely approaching advanced age. (Tr. 31, Finding
7). The ALJ, however, also determined that prior June 21, 2009, there was other work existing in
significant numbers in the national economy Plaintiff could perform. (Tr. 32, Finding 10).
However, on June 21, 2009, because Plaintiff’s age category changed, there were no jobs existing
in significant numbers in the national economy Plaintiff could perform. (Tr. 33, Finding 11). Based
upon this finding, the ALJ determined Plaintiff became disabled on June 21, 2009. (Tr. 33, Finding
12). The ALJ also found Plaintiff was not under a disability at any time through September 30,
2007, the date last insured. (Tr. 33, Finding 13).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 14). See
20 C.F.R. § 404.968. The Appeals Council declined to review this decision. (Tr. 1-5). On
November 4, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on November 7, 2016. ECF No. 7. Both Parties have filed appeal briefs.
ECF Nos. 13, 16. 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
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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
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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) and in assessing Plaintiff’s RFC. ECF No. 13, Pgs. 3-20. In response, the
Defendant argues the ALJ did not err in any of her findings. ECF No. 16.
It should be noted, Plaintiff’s date last insured for Title II purposes was September 30, 2007
(Tr. 22). Therefore, the relevant issue is whether Plaintiff was disabled as of September 30, 2007.
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 osteoarthritis of the
bilateral knees, degenerative joint disease of the lumbar spine, and morbid obesity. (Tr. 24, 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. In this matter, Plaintiff has the burden of establishing that her
impairment(s) meet or equal an impairment set out in the Listing of Impairments, as of September
30, 2007. See Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990). Plaintiff has not met this burden.
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Plaintiff argues she meets a Listing under Section 1.02 major joint dysfunction. ECF No. 13,
Pgs. 3-16. Defendant argues Plaintiff has failed to establish she meets this Listing. ECF No. 16.
Impairments found under Listing 1.02 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
or involvement of one major peripheral joint in each upper extremity
(i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform
fine and gross movements effectively, as defined in 1.00B2c.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02.
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.
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In this matter, Plaintiff has failed to establish she is unable to ambulate 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. Plaintiff testified she was prescribed a walker in 2007. (Tr. 90). The ALJ
considered this contention, but correctly found the evidence of record did not establish Plaintiff was
prescribed a walker as of her September 30, 2007, date last insured. (Tr. 29).
Further, Plaintiff presented no diagnostic medical evidence showing she has a major
dysfunction of a joint characterized by gross anatomical deformity, and findings on medically
acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joints.
An “inability to perform fine and gross movements effectively” means an extreme loss of
function of both upper extremities; i.e., an impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain, or complete activities. To use their upper
extremities effectively, individuals must be capable of sustaining such functions as reaching,
pushing, pulling, grasping, and fingering to be able to carry out activities of daily living. Examples
of inability to perform fine and gross movements effectively include, but are not limited to, the
inability to prepare a simple meal and feed oneself, the inability to take care of personal hygiene, the
inability to sort and handle papers or files, and the inability to place files in a file cabinet at or above
waist level. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2c.
There is no credible evidence showing Plaintiff is prohibited from ambulating effectively
with a major peripheral joint in each upper extremity resulting in inability to perform fine and gross
movements effectively.
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
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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. RFC
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).
In this matter, the ALJ determined Plaintiff retained the RFC for sedentary work, except can
only occasionally climb stairs and ramps, but not climb ladders, ropes, and scaffolds; can
occasionally stoop, kneel, crouch, and crawl; and must avoid concentrated exposure to extreme
temperatures, dusts, fumes, gases, odors, and other pulmonary irritants. (Tr. 27). Plaintiff argues
the ALJ erred in this RFC determination. ECF No. 13, Pgs. 16-20. However, substantial evidence
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supports the ALJ’s RFC determination.
In his opinion, the ALJ considered Plaintiff’s alleged impairments and discounted those she
found were not credible. Plaintiff has not referenced any specific limitations the ALJ improperly
assessed or provided any medical evidence or other evidence demonstrating the ALJ erred in
assessing her limitations. Plaintiff has the burden of demonstrating her alleged limitations. See, e.g.,
Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000). Without more, the Court cannot find the ALJ
erred in assessing her RFC. The mere fact Plaintiff suffers from a number of different impairments
does not demonstrate she is disabled due to those impairments.
Plaintiff argues the ALJ “erroneously discussed” the RFC assessment form Dr. Kleinschmidt
completed on January 24, 2012. Dr. Kleinschmidt completed an RFC assessment that included
limitations which would preclude all sedentary work. (Tr. 1235-1238). However, the ALJ
considered the RFC assessment from Dr. Kleinschmidt and properly gave it little weight. (Tr. 31).
The ALJ explained Dr. Kleinschmidt’s treatment records did not fully support his RFC assessment
and the assessment was not consistent with the medical evidence through the date last insured and
prior to the established onset date of disability. Id.
Substantial evidence supports the ALJ’s RFC determination. Plaintiff has the burden of
establishing her claimed RFC. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)). 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 affirmed.
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
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these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 8th day of February 2018.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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