Alford v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 30, 2015. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
CUBA FAY ALFORD
vs.

PLAINTIFF
Civil No. 6:14-cv-06043

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Cuba Fay Alford (“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. 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 September 22, 2011. (Tr. 9, 103-111). Plaintiff
alleged she was disabled due to depression, degenerative disc diseases, osteoporosis, hypertension,
anemia, chronic pain, and low potassium. (Tr. 130). Plaintiff alleged an onset date of June 10, 2011.
(Tr. 9). This application was denied initially and again upon reconsideration. (Tr. 9, 53-58).

1

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.”

1

Thereafter, Plaintiff requested an administrative hearing on her application and this hearing request
was granted. (Tr. 67).
Plaintiff ‘s administrative hearing was held on February 12, 2013. (Tr. 25-52). Plaintiff was
present and was represented by counsel, Hans Pullan, at this hearing. Id. Plaintiff and Vocational
Expert (“VE”) Dianne Smith testified at this hearing. Id. At the time of this hearing, Plaintiff was
forty-three (43) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c),
and had a high school education along with a two year college program certification in child
development. (Tr. 28-29).
On April 8, 2013, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB. (Tr. 9-19). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2016. (Tr. 11, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since her alleged onset date. (Tr.
11, Finding 2).
The ALJ also determined Plaintiff had the severe impairments of lumbar degenerative disc
disease, osteoarthritis of the knees, obesity (mild), anemia (status post iron infusions), and major
depression. (Tr. 11, 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. 12, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 14-18). 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 light work except Plaintiff could do no frequent bending or crouching or dealing

2

with the general public; was limited to unskilled work where interpersonal contact was incidental
to the work performed; the complexity of tasks was learned and performed by rote, involved few
variables, required little independent judgment; and the supervision required was simple direct, and
concrete. (Tr. 14, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, Finding 6). The ALJ
found Plaintiff was unable to perform her PRW. Id. The ALJ however determined there was other
work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 18,
Finding 10). The VE testified at the administrative hearing regarding this issue. (Tr. 48-51). Based
upon that testimony, the ALJ determined Plaintiff retained the ability to perform other work such as
a bench cleaner with 1,900 such jobs in Arkansas and 243,000 such jobs in the nation and small parts
assembler with 14,000 such jobs in Arkansas and 1,500,000 such jobs in the nation. (Tr. 19). Given
this, the ALJ determined Plaintiff had not been under a disability as defined in the Act from June 10,
2011 through the date of his decision. (Tr. 19, Finding 11).
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 27, 2014, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on March 27, 2014. ECF No. 5. Both Parties have filed appeal briefs.
ECF Nos. 10, 11. 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

3

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
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)

4

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 and (B) in failing to present a proper hypothetical to the VE. ECF No. 10, Pgs. 10-15. In
response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 11.
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 lumbar degenerative disc
disease, osteoarthritis of the knees, obesity (mild), anemia (status post iron infusions), and major
depression. (Tr. 11, 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

5

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 1.02 because of her inability to ambulate
effectively. ECF No. 10, Pgs. 10-13. Defendant argues Plaintiff has failed to establish she meets
this Listing. ECF No. 11, Pgs. 5-8.
To meet Listing 1.02, Plaintiff must have a major dysfunction of a joint with clinical
evidence of joint space narrowing, bony destruction, or ankylosis, with either:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee or
ankle), resulting in inability to ambulate effectively, or
B. 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.
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
6

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.
Plaintiff does not have a joint dysfunction that resulted in an inability to ambulate effectively.
Although Plaintiff argues she meets Listing § 1.02 because of her subjective complaints of pain and
diagnosis of plantar fascitis, peripheral neuropathy, disc dessication at L5-S1, and degenerative joint
disease of both knees; diagnosis of a disorder alone is insufficient proof that Plaintiff met a listing.
See 20 CFR § 404.1525(d); Harris v. Barnhart, 356 F.3d 926, 929 (8th Cir. 2004); Collins ex. rel.
Williams v. Barnhart, 335 F.3d 726, 730 (8th Cir. 2003). 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.
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.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)
(finding the SSA’s denial of benefits was supported by substantial evidence where the ALJ applied
7

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 retained the RFC to perform light work except could not do frequent
bending or crouching or dealing with the general public; was limited to unskilled work where
interpersonal contact was incidental to the work performed; the complexity of tasks was learned and
performed by rote, involved few variables, required little independent judgment; and the supervision
required was simple direct, and concrete. (Tr. 14, Finding 5). In response to a hypothetical question,
the VE testified work existed in the national economy consistent with the RFC found by the ALJ.
(Tr. 49-51). The ALJ found a significant number of jobs existed in the national economy which
Plaintiff could perform. (Tr. 18-19, Finding 10). Relying on the VE testimony, the ALJ found
Plaintiff was not under a disability as defined by the Act. (Tr. 19). Plaintiff argues that because the
ALJ’s hypothetical question was based upon the RFC finding, the hypothetical question was defective
8

and unsupported by the evidence because it did not contain all of her limitations. ECF No. 10, Pg.
13-15.
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 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, 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 30th day of March 2015.

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

9