Shelton v. Social Security Administration Commissioner

Filing 18

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on October 8, 2014. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
LINDA ARLENE SHELTON
vs.

PLAINTIFF
Civil No. 6:13-cv-06119

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Linda Arlene Shelton (“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 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. 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 application for DIB was filed on April 8, 2009. (Tr. 184-187). Plaintiff alleged
she was disabled due to back problems, hip problems, knee problems, shoulder problems, heel spurs,
obesity, respiratory problems, and diabetes. (Tr. 214). Plaintiff alleged an onset date of February
1, 2009. (Tr. 17, 214). This application was denied initially and again upon reconsideration. (Tr.

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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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106-108, 112-113). Thereafter, Plaintiff requested an administrative hearing on her application and
this hearing request was granted. (Tr. 114-115).
Plaintiff’s initial administrative hearing was held on May 13, 2010. (Tr. 55-81). Following
this on, September 3, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 87-97). Upon request for review of the ALJ’s decision, the Appeals Council remanded
the case back to the ALJ for consideration of new and material evidence submitted after the ALJ’s
September 3, 2010 decision. (Tr. 102-105).
Following this, Plaintiff had a second administrative hearing on May 22, 2012. (Tr. 32-54).
Plaintiff was present and was represented by counsel, Sherri McDonough, at this hearing. Id.
Plaintiff and Vocational Expert (“VE”) Myrtle Johnson testified at this hearing. Id. At the time of
this hearing, Plaintiff was fifty (50) years old, which is defined as a “person closely approaching
advanced age” under 20 C.F.R. § 404.1563(d), and obtained a GED. (Tr. 38).
On June 22, 2012, the ALJ entered a partially favorable decision finding Plaintiff disabled
beginning May 23, 2011. (Tr. 17-27). In this decision, the ALJ determined Plaintiff met the insured
status requirements of the Act through December 31, 2013. (Tr. 20, Finding 1). The ALJ
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since February 1,
2009, her alleged onset date. (Tr. 20, Finding 2). The ALJ found Plaintiff’s employment as a CNA
since her onset date did rise to the level of SGA. Id.
The ALJ also determined Plaintiff had the severe impairments of degenerative disc disease
of the cervical spine, degenerative disc disease of the lumbar spine, heel spurs, diabetes mellitus, and
obesity. (Tr. 20, 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

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of Regulations No. 4 (“Listings”). (Tr. 20, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 21-24). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined that prior to May
23, 2011, Plaintiff retained the RFC to perform the full range of light work. (Tr. 21, Finding 5). The
ALJ also found that beginning May 23, 2011, Plaintiff retained the RFC to perform the full range
of sedentary work. (Tr. 24, Finding 6).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 24-25, Findings 7, 8). The
ALJ found that prior to May 23, 2011, Plaintiff was able to perform her PRW as a personal care
technician. Id. The ALJ also found that beginning on May 23, 2011, Plaintiff was unable to perform
her PRW. Id. The ALJ also determined that since May 23, 2011, there was no other work existing
in significant numbers in the national economy Plaintiff could perform. (Tr. 26, Finding 12). Given
this, the ALJ determined Plaintiff had been under a disability as defined in the Act beginning May
23, 2011. (Tr. 26, Finding 13).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 7-12).
See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr.
1-6). On October 16, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to
the jurisdiction of this Court on October 30, 2013. ECF No. 7. Both Parties have filed appeal briefs.
ECF Nos. 14, 15. 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)

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(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

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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).
3. Discussion:
Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to find Plaintiff met
a Listing, (B) in the RFC determination, (C) in failing to properly consider Plaintiff’s complaints of
pain, (D) in the weight given the opinions of Plaintiff’s physician, and (E) in failing to present a
proper hypothetical to the VE. ECF No. 14, Pgs. 8-16. In response, the Defendant argues the ALJ
did not err in any of his findings. ECF No. 15.
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

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of the cervical spine, degenerative disc disease of the lumbar spine, heel spurs, diabetes mellitus, and
obesity. (Tr. 20, 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 1.04 for disorders of the spine. ECF No.
14, Pgs. 9-12. Defendant argues Plaintiff has failed to establish she meets this Listing. ECF No. 15,
Pgs. 5-9.
Plaintiff argues she meets Listing 1.04 for Disorders of the Spine. In order to meet Listing
1.04, Plaintiff must have a disorder of the spine resulting in compromise of a nerve root, with:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss, sensory or reflex loss, and
if the lower back is involved, a positive straight-leg raising test; or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue
biopsy, or by appropriate medically acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in the need for changes in position or
posture more than once every two hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings
on appropriate medically acceptable imaging.
Plaintiff relies on an MRI report from September 15, 2009, which shows Plaintiff had
muscle spasm in her back, positive straight leg raises on the left, and normal deep tendon reflexes
(Tr. 320). There was no medical evidence, nor did Plaintiff set out any medical evidence, showing
Plaintiff suffered from a nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis
which resulted in pseudoclaudication as set forth in Listing 1.04. Whether Plaintiff meets a listed
impairment is a medical determination and must be established by medically acceptable clinical and
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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. 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 that prior to May 23, 2011, Plaintiff retained the RFC to
perform the full range of light work. (Tr. 21, Finding 5). Plaintiff argues the ALJ erred in this RFC
determination. ECF No. 14, Pgs. 13-14. However, substantial evidence supports the ALJ’s RFC
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determination.
On October 13, 2008, Plaintiff saw Dr. Lawrence Dodd, and complained of continuing pain
and weakness from an injury she suffered after a fall in May or June of 2008. (Tr. 265). An MRI
of Plaintiff’s left shoulder showed no evidence of a full-thickness rotator cuff tear. (Tr. 263, 265).
On July 15, 2009, Plaintiff underwent a General Physical Examination with Dr. Garry
Stewart. (Tr. 284-292). Plaintiff had complaints of degenerative disc disease, asthma, type II
diabetes mellitus, blurred vision, and knee, foot, and shoulder pain. (Tr. 284). Plaintiff had a normal
range of motion in her extremities and cervical spine, reduced range of motion in her lumbar spine,
straight leg raises were negative for pain, no muscle weakness or atrophy, and no sensory
abnormalities. (Tr. 286, 287). Also, X-rays of Plaintiff’s knees and right foot were all within normal
limits and an x-ray of her left foot revealed a heel spur and osteophyte. (Tr. 288).
The ALJ also relied upon the RFC Assessment performed by Dr. Alice Davidson on July 30,
2009. (Tr. 295-302). Dr. Davidson determined Plaintiff was able to perform the requirements of
the full range of medium work, which is even greater than found by the ALJ. Id. On September 9,
2009, Dr. Bill Payne also reviewed the evidence of record and agreed Dr. Davidson’s assessment.
(Tr. 311-14).
On March 17, 2010, Plaintiff returned to Dr. Dodd, complaining of all over pain, including
pain in her both shoulders, hip, knee, ankle, and right elbow. (Tr. 323). Dr. Dodd noted Plaintiff
was morbidly obese with no obvious gross deficit in any joint and believed Plaintiff did not have a
surgical orthopedic issue. Id. There is no record of treatment over the next year.
As shown by the above medical evidence, substantial evidence supports the ALJ’s RFC
determination finding that prior to May 23, 2011, Plaintiff was capable of performing light work.
Plaintiff has the burden of establishing her claimed RFC. See Goff v. Barnhart, 421 F.3d 785, 790
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(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.
C. ALJ’s Credibility Determination
Plaintiff also claims the ALJ erred in his credibility determination. ECF No. 14. In response,
Defendant argues the ALJ properly evaluated and discredited Plaintiff’s subjective complaints
pursuant to the directives of Polaski. ECF No. 15.
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
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.

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

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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 her credibility as it related to the limiting effects
of her impairments and did not fully consider her subjective complaints. The 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, 20 C.F.R. §
404.1529, and 20 C.F.R. § 416.929, and stated inconsistencies between Plaintiff’s testimony and the
record. (Tr. 23-24). 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) Plaintiff has not required regular treatment
for any impairment, and (5) Plaintiff worked one day a week at a twelve hour shift. 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
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affirmed. See Lowe, 226 F.3d at 971-72. Accordingly, the ALJ did not err in discounting Plaintiff
complaints of pain.
D. 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 objective findings of Dr. Richard Gardial
in assessing Plaintiff’s RFC and gave great weight to the findings of consultative examiner, Dr.
Garry Stewart. ECF No. 14, Pgs. 10-12. However, Plaintiff’s argument is without merit.
The ALJ did not give Dr. Stewart’s findings more weight in relation to Dr. Gardial’s findings,
nor did he discredit the finding of Dr. Gardial. (Tr. 22-23). Instead, the ALJ considered the medical
opinions of both Dr. Gardial and Dr. Stewart, and properly accommodated Dr. Gardial’s findings in
his RFC assessment by limiting Plaintiff to light work instead of medium or heavy work. (Tr.
22-23).
The ALJ committed no error in his treatment of medical opinions from Plaintiff’s physician.
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E. Step 5 Determination
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)
(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 that beginning May 23, 2011, Plaintiff retained the RFC to perform the full
range of sedentary work. (Tr. 24, Finding 6). In response to a hypothetical question containing these
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limitations, the VE testified that prior to May 23, 2011, Plaintiff was able to perform her PRW as
a personal care technician. (Tr. 47-48). Relying on the VE testimony, the ALJ found that prior to
May 23, 2011, Plaintiff was not under a disability as defined by the Act. (Tr. 27). 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. 14, Pg. 14-15.
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 Plaintiff
was able to perform her PRW as a personal care technician. 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 8th day of October 2014.

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

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