Ledford v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on December 5, 2016. (src)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
Plaintiff, Tina Ledford, brings this action pursuant to 42 U.S.C. §405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income benefits (SSI) under the provisions of Titles II and
XVI of the Social Security Act (Act). 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).
Plaintiff protectively filed her current applications for DIB and SSI on July 24, 2012,
alleging an inability to work since December 31, 2010, due to diabetes, fibromyalgia, carpal
tunnel syndrome, chronic obstructive pulmonary disease (COPD), obesity, knee problems,
collapsed right nasal passage, and high cholesterol. (Doc. 18, pp. 201-204, 215, 230). An
administrative hearing was held on August 21, 2013, at which Plaintiff appeared with counsel
and testified. (Doc. 18, pp. 35-67).
By written decision dated May 16, 2014, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe1
fibromyalgia, obesity, noninsulin dependent diabetes mellitus, recurrent sciatica/myofascial
strain, chronic obstructive pulmonary disease (COPD)/restrictive lung disease, high blood
pressure, bilateral carpal tunnel syndrome, history of syncope and major depression not
otherwise specified. (Doc. 18, p. 18). However, after reviewing all of the evidence presented,
the ALJ determined that Plaintiff’s impairments did not meet or equal the level of severity of
any impairment listed in the Listing of Impairments found in Appendix I, Subpart P,
Regulation No. 4. (Doc. 18, p. 18). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except that she can occasionally balance, stoop, kneel, crouch, crawl and climb
ramps and stairs. She cannot climb ladders, ropes and scaffolds and can only
occasionally handle and finger bilaterally. The claimant must avoid
concentrated exposure to temperature extremes, humidity, fumes, odors, dusts,
gases and poor ventilation and must avoid moderate exposure to hazards,
including no driving as a part of work. In addition, the claimant can do work
that is simple and repetitive with incidental interpersonal contact and direct and
(Doc. 18, pp. 20-21). With the help of the vocational expert (VE), the ALJ determined that
during the relevant time period, Plaintiff would not be able to perform any past relevant work,
but there were other jobs she would be able to perform, such as surveillance system monitor
and call out operator. (Doc. 18, pp. 27-28).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on August 5, 2015. (Doc. 18, pp. 5-9). Subsequently, Plaintiff filed this
action. (Doc. 1). This case is before the undersigned pursuant to the consent of the parties.
(Doc. 5). Both parties have filed appeal briefs, and the case is now ready for decision. (Docs.
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
This Court’s role is to determine whether the Commissioner’s findings are supported
by substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583 (8th
Cir. 2002). Substantial evidence is less than a preponderance but it is enough that a reasonable
mind would find it adequate to support the Commissioner’s decision. The ALJ’s decision must
be affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314
F. 3d 964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th
Cir. 2001). In other words, 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. 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 her disability by establishing a physical or mental disability that has lasted
at least one year and that prevents her from engaging in any substantial gainful activity.
Pearsall v. Massanari, 274 F. 3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §423(d)(1)(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).
A Plaintiff must show that her disability, not simply her impairment, has lasted for at least
twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in
substantial gainful activity since filing her claim; (2) whether the claimant had a severe
physical and/or mental impairment or combination of impairments; (3) whether the
impairment(s) met or equaled an impairment in the listings; (4) whether the impairment(s)
prevented the claimant from doing past relevant work; and (5) whether the claimant was able
to perform other work in the national economy given her age, education, and experience. See
20 C.F.R. §§ 404.1520, 416.920. Only if the final stage is reached does the fact finder consider
the Plaintiff’s age, education, and work experience in light of her RFC. See McCoy v.
Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520, 416.920, abrogated
on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. §§
Plaintiff raises the following issues in this matter: 1) Whether the ALJ erred in his RFC
determination; and 2) Whether the ALJ erred in his determination that substantial occupational
bases exists. (Doc. 16).
A. Credibility Analysis:
The ALJ was required to consider all the evidence relating to Plaintiff’s subjective
complaints including evidence presented by third parties that relates to: (1) Plaintiff’s daily
activities; (2) the duration, frequency, and intensity of her pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness, and side effects of her medication; and (5)
functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While an
ALJ may not discount a claimant’s subjective complaints solely because the medical evidence
fails to support them, an ALJ may discount those complaints where inconsistencies appear in
the record as a whole. Id. As the Eighth Circuit has observed, “Our touchstone is that [a
claimant’s] credibility is primarily a matter for the ALJ to decide.” Edwards v. Barnhart, 314
F.3d 964, 966 (8th Cir. 2003).
In his decision, the ALJ found that Plaintiff’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms, but her statements concerning
the intensity, persistence and limiting effects of the symptoms were not entirely credible. (Doc.
18, p. 22). The ALJ considered Plaintiff’s daily activities, noting that she had mild restriction.
(Doc. 18, p. 19). He discussed the fact that Plaintiff could sometimes do a little bit of laundry;
went shopping but would have to lean on the cart or get a motorized cart; and after the alleged
onset date, Plaintiff went to school in 2011 to become a nail technician, and worked at On
Stage in December of 2011, which the ALJ believed showed that Plaintiff was capable of
performing work like tasks and was not limited to the extent alleged. (Doc. 18, pp. 19, 23). In
addition, the ALJ discussed the fact that despite her complaints concerning breathing
difficulties, and her treating physician’s recommendation to stop, Plaintiff continued to smoke
up to a half a pack of cigarettes a day, which discredits her disability allegations. (Doc. 18, p.
23). See Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Riggins v. Apfel, 177 F.3d 689,
693 (8th Cir. 1999); Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997).
The Court finds there is substantial evidence to support the ALJ’s credibility analysis.
B. RFC Determination:
Plaintiff argues that the ALJ’s determination that Plaintiff retained the RFC for
occasional bilateral use of her hands is not supported by substantial evidence, and that
sedentary work requires the good use of both hands and fingers. Alternatively, Plaintiff argues
the matter should be remanded for additional development of the RFC determination in light
of Dr. Al-Khatib’s examination.
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). 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. Gilliam’s v. Barnhart, 3 93 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). “[T]he ALJ is [also] required to set forth specifically a
claimant’s limitations and to determine how those limitations affect his RFC.” Id. “The ALJ
is permitted to base its RFC determination on ‘a non-examining physician’s opinion and other
medical evidence in the record.’” Barrows v. Colvin, No. C 13-4087-MWB, 2015 WL 1510159
at *11 (N.D. Iowa Mar. 31, 2015)(quoting from Willms v. Colvin, Civil No. 12-2871, 2013
WL 6230346 (D. Minn. Dec. 2, 2013)).
As indicated earlier, the ALJ found that Plaintiff had the RFC to perform sedentary
work with certain postural, environmental and manipulative limitations, which includes only
occasional handling and fingering bilaterally. In making this determination, the ALJ
considered all of the medical records, physicians’ opinions, and Plaintiff’s testimony of her
limitations. More specifically, the ALJ discussed the fact that Plaintiff testified that her hands
had been bothering her for eight-years, and became so bad that she had to stop working at the
end of 2011, and that in her left upper extremity, her first three fingers would get numb, which
would shoot up to her elbow, and she could not lift with it and would drop things. (Doc. 18, p.
21). She also testified that two to three times a week, she would have similar issues with her
right hand. (Doc. 18, p. 21). The ALJ also addressed the fact that some of Plaintiff’s activities
belied her alleged hand impairments, because she could do some laundry, do dishes if she
leaned on the counter, shop while leaning on the cart, not lift a gallon of milk with her left hand
and not hold on for very long with her right hand, and thought a gallon pitcher of tea would be
the most she could lift. (Doc. 18, p. 22). The ALJ also discussed the fact that Plaintiff was able
to attend nail tech school after the alleged onset date, and work at a nail salon thereafter. (Doc.
18, p. 23).
In addition, the Court notes that prior to the alleged onset date, on March 29, 2010, Dr.
Tad Morgan conducted a General Physical Examination of Plaintiff. (Doc. 18, p. 279). Dr.
Morgan noted that Plaintiff had been a smoker for 20 years and that the range of motion in her
extremities and spine was within normal limits. (Doc. 18, pp. 279, 281). He also reported that
Plaintiff could perform all limb functions, and had 100% grip in both hands. (Doc. 18, p. 282).
He diagnosed her with diabetes mellitus, by history; carpal tunnel syndrome – right greater
than left by history; depression by history; chronically dislocating left patella by history; and
concluded that she had mild limitations in walking, lifting, carrying, handling or fingering.
(Doc. 18, p. 283).
On September 25, 2012, Dr. C. R. Magness conducted a General Physical Examination,
wherein he found that Plaintiff could perform all limb functions, except she could not
squat/arise from a squatting position; had 50% grip in her right hand and 30% grip in her left
hand; had severe limitations in her ability to walk, stand, lift, and carry; and moderate to severe
limitations in her ability to handle. (Doc. 18, pp. 394-395).
Subsequently, on October 21, 2012, Plaintiff completed a Function Report – Adult –
where she stated that she was able to dress herself, feed herself, use the toilet by herself, prepare
sandwiches, do laundry and dishes sometimes, go outside every day to get the mail, shop for
food two to three times a month; play cards, play board games, and go to the library. (Doc. 18,
On November 2, 2012, a Physical RFC Assessment was completed by non-examining
consultant, Dr. Sharon Keith, where she found that Plaintiff would be able to perform sedentary
work with postural limitations, and should avoid even moderate exposure to hazards
(machinery, heights, etc.). (Doc. 18, pp. 77-78). She found no manipulative, visual, or
communicative limitations. (Doc. 18, p. 78).
On February 11, 2013, Plaintiff reported to Megan Justus, LCSW, that she had
continued to walk the dog daily, judging how she felt, and some days walked really far and
other days just walked around the block. (Doc. 18, p. 450). Ms. Justus reported that she praised
Plaintiff for her daily walking and for getting out of the house more, and for example, “taking
care of nephew’s baby and being around family and friends.” (Doc. 18, p. 451).
On February 21, 2013, non-examining consultant, Dr. Jerry Thomas, completed a
Physical RFC Assessment, also finding that Plaintiff could perform unskilled sedentary work
with certain postural and environmental limitations. (Doc. 18, pp. 111, 115).
On December 12, 2013, Plaintiff underwent a neurological evaluation and examination
by Dr. Ahmad Al-Khatib. (Doc. 18, p. 467). Dr. Al-Khatib reported that Plaintiff smoked about
a half a pack of cigarettes per day, that a motor examination revealed normal muscle bulk and
tone, her motor strength was 5/5 throughout, Tinel’s sign was positive over both wrists, there
was evidence of diffuse tender points, examination of the spine was unremarkable, and that
Plaintiff had some difficulties performing tandem walk. (Doc. 18, p. 468). Dr. Al-Khatib
performed electromyography and nerve conduction studies of both upper extremities and the
left lower extremity, which revealed the following:
1. Moderate chronic bilateral carpal tunnel syndromes
3. Possible diabetic small fiber pure sensory peripheral polyneuropathy
(Doc. 18, p. 468). Dr. Al-Khatib found that given the above-mentioned impression, Plaintiff
had moderate limitations in standing, walking, carrying and handling objects. (Doc. 18, p. 468).
In his decision, the ALJ gave substantial weight to the opinion of Dr. Morgan, taking
into account his finding that Plaintiff could perform sedentary work with only occasional
handling and fingering. (Doc. 18, p. 25). With respect to Dr. Magness’ opinion, the ALJ stated
that he accounted for his opinion in his RFC which limits Plaintiff to sedentary work and
occasional handling and fingering, and to the extent his opinion was relied upon for a more
restrictive RFC, it was given little weight. The ALJ further stated that Dr. Magness’ findings
were not consistent with those from Dr. Morgan, and that even though there was an
approximately two and one-half year difference between their evaluations, the treatment
records did not show the type of decline in Plaintiff’s condition that would support finding
Plaintiff to have more extensive limitations. (Doc. 18, p. 25).
The ALJ gave the opinions of Dr. Al-Khatib substantial weight, because they were
based upon objective nerve conduction velocity testing and electromyelogram testing. The ALJ
concluded that his opinion did not indicate that Plaintiff had any greater limitations than those
found in the RFC. (Doc. 18, p. 26).
Plaintiff cites to Henry v. Astrue, No. 09-4074 (W.D. Ark. June 1, 2010) and Todd v.
Colvin, No. 2:15-CV-02048 (W.D. Ark. Sept. 17, 2015) in support of his position. However,
the Court finds those cases to be distinguishable from the one now before it. In Henry, the ALJ
failed to propose any hypothetical to the VE setting forth Plaintiff’s lack of range of motion
with her left wrist in order to determine what sedentary jobs were available for Plaintiff to
perform. Such is not the case here. In fact, the ALJ in this case modified his first hypothetical
question to the VE to include only occasional handling and fingering bilaterally, and the VE
responded that the jobs of callout operator and surveillance system monitor would still be
available. (Doc. 18, pp. 63-64). In Todd, the ALJ determined that Plaintiff would be able to
perform frequent non-repetitive grasping and fingering with her left upper extremity, when
Plaintiff consistently sought out treatment for pain in her left wrist and hand. In the case now
before the Court, the ALJ limited Plaintiff to occasional handling and fingering.
Finally, it is noteworthy that the VE testified that reaching, handling and fingering were
non-existent in the surveillance system monitor position. (Doc. 18, p. 64).
Based upon the foregoing, the Court finds that there is substantial evidence to support
the ALJ’s RFC determination.
C. Hypothetical Question and Occupational Base:
Plaintiff contends that the jobs identified as within Plaintiff’s ability amount to such a
small percentage of the workforce that scientific notation would be required to competently
state it. Accordingly, she argues that there is not a significant occupational base.
At the hearing, the VE testified that with respect to the callout operator position, there
were 115 jobs in the state of Arkansas and 16,111 in the national economy. (Doc. 18, p. 60).
Regarding the surveillance system monitor position, there were 115 jobs in the state of
Arkansas and 16,867 in the national economy. The Eighth Circuit found in Johnson v. Chater,
108 F.3d 178, 180 (8th Cir. 1997) that 200 jobs of addresser or document preparer in Iowa and
10,000 in the national economy to be a significant number. More recently, in Gholston v.
Colvin, No. 14-CF-2064-LRR, 2015 WL 6167824 (N.D. Iowa Oct.21, 2015), in analyzing the
issue presented, the Court referred to Welsh v. Colvin, 765 F.3d 927, 930 (8th Cir. 2014), where
the Eighth Circuit held that where there were 330 positions regionally and 35,000 positions
nationally, there were a sufficient number of jobs to satisfy the requirement. 2015 WL 6167824
at *23. The Court in Gholston therefore found that 550 local positions in Iowa and 57,700
positions nationally fell within the bounds set forth by the Eighth Circuit.
Although in this case the number of local jobs available is less than those referenced
by the cases cited above, the Court also finds guidance in 42 U.S.C. §423(d)(2)(A), which
provides, in pertinent part, that “‘work which exists in the national economy’” means work
which exists in significant numbers either in the region where such individual lives or in
several regions of the country.”(italics added). In the case now before the Court, there are
16,111 callout operators in the national economy and 16,867 surveillance system monitor jobs
in the national economy. Therefore, even if the Court found that 115 local jobs were not
significant numbers, which it does not, there would still be significant numbers of such jobs in
the national economy.
After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical questions the ALJ posed to the VE fully set forth
the impairments which the ALJ accepted as true and which were supported by the record as a
whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds that
the VE’s opinion constitutes substantial evidence supporting the ALJ's conclusion that Plaintiff
would be able to perform the jobs of callout operator and surveillance system monitor. Pickney
v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from vocational expert based on properly
phrased hypothetical question constitutes substantial evidence).
Accordingly, having carefully reviewed the record, the Court finds substantial evidence
supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision is hereby
affirmed. The Plaintiff’s Complaint should be, and is hereby, dismissed with prejudice.
IT IS SO ORDERED this 5th day of December, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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