Phillips v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 28, 2017. (mjm)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
MICHAEL PHILLIPS
vs.

PLAINTIFF
Civil No. 6:16-cv-06085

NANCY BERRYHILL
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Michael Phillips (“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 his application 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 March 17, 2014. (Tr. 11, 169-178).
Plaintiff alleged he was disabled due to blood clot in middle of stomach, difficulty walking, and
pulmonary artery disease. (Tr. 191). Plaintiff alleged an onset date of December 1, 2005. (Tr. 11).
These applications were denied initially and again upon reconsideration. (Tr. 60-75, 76-99).
Thereafter, Plaintiff requested an administrative hearing on his applications and this hearing request

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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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was granted. (Tr. 117).
Plaintiff’s administrative hearing was held on June 1, 2015. (Tr. 25-59). Plaintiff was
present and was represented by counsel, Shannon Muse Carroll, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) Stefanie Ford testified at this hearing. Id. At the time of this hearing,
Plaintiff was fifty-two (52) years old and had a GED. (Tr. 28-29).
On July 10, 2015, the ALJ entered an unfavorable decision denying Plaintiff’s applications
for DIB and SSI. (Tr. 11-20). In this decision, the ALJ determined the Plaintiff met the insured
status requirements of the Act through March 31, 2011. (Tr. 13, Finding 1). The ALJ also
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since December 1,
2005, the alleged onset date. (Tr. 13, Finding 2).
The ALJ determined Plaintiff had the severe impairments of degenerative disc disease and
bilateral leg pain. (Tr. 13, 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. 14, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 15-18). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC for light work, except is limited to occasional climbing, balancing, stooping, bending,
crouching, kneeling, and crawling. (Tr. 15, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, Finding 6). The ALJ
found Plaintiff was unable to perform his PRW. Id. The ALJ, however, also determined there was
other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 19,
Finding 10). The ALJ based this determination upon the testimony of the VE. Id. Specifically, the
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VE testified that given all Plaintiff's vocational factors, a hypothetical individual would be able to
perform the requirements of representative occupations such as cashier with 82,000 such jobs locally
and 800,000 such jobs in the nation and fast food worker with 144,000 such jobs locally and
1,100,000 such jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff had not
been under a disability as defined by the Act from December 1, 2005, through the date of the
decision. (Tr. 20, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 7). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-3).
On August 22, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on August 22, 2016. ECF No. 5. Both Parties have filed appeal briefs.
ECF Nos. 13, 14. 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
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,
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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
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).

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3. Discussion:
Plaintiff brings the present appeal claiming the ALJ erred: (A) in the RFC determination, (B)
by failing to find Plaintiff met a Listing, and (C) in the Step 5 determination. ECF No. 13, Pgs. 3-10.
In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 14.
A. 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 light work, except is limited
to occasional climbing, balancing, stooping, bending, crouching, kneeling, and crawling. (Tr. 15,
Finding 5). Substantial evidence supports the ALJ’s RFC determination.
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Although Plaintiff alleged an onset date of December 1, 2005, his medical record of history
begins in January 2014 when Plaintiff was seen at Mercy Hospital for right leg pain. (Tr. 294).
Plaintiff’s exam showed aside from back pain, his body systems were negative. Id. Plaintiff was
diagnosed with right sided sciatica and was advised to start an exercise program. (Tr. 295).
Plaintiff returned to Mercy Hospital on February 17, 2014 with complaints of continuing leg
pain and back pain. (Tr. 316). Plaintiff underwent and ultrasound examination on his legs which
indicated significant arterial disease in the left leg, and a noncompliant vessel in the right leg due to
calcification. (Tr. 320). Following this, on March 3, 2014, Plaintiff underwent a CT examination
of his abdomen and the arterial tree of his lower extremities. (Tr. 275). The exam showed evidence
of aortic occlusive disease below the renal arteries and normal extremity arterial tree. (Tr. 275).
On April 17, 2014, Dr. Joe Howe performed an aortic bi-femoral bypass graft on Plaintiff’s
legs. (Tr. 281-284). According to Dr. Howe, the procedure as uneventful, recommended Plaintiff
take aspirin daily and stop smoking. (Tr. 284). Following this procedure, on June 23, 2014, Plaintiff
was seen by Dr. Andrew Grose. (Tr. 333-340). Plaintiff indicated his right leg ached, but bilaterally
his legs felt better, and they no longer gave way. Id.
On December 11, 2014, Plaintiff had an MRI on his lumbar spine. (Tr. 372-374). The
results showed degenerative disc disease at L3-4, with deflection of the L4 nerve root; otherwise,
the lumbar spine appeared normal in alignment, with no evidence of compression fracture. Id.
As shown by the above medical evidence, substantial evidence supports the ALJ’s RFC
determination. Plaintiff has the burden of establishing his 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 his 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
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affirmed.
B. 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
and bilateral leg pain. (Tr. 13, 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 his 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 he meets a Listing under Section 1.04 for disorders of the spine and 11.14
for peripheral neuropathy. ECF No. 13, Pgs. 3-7. Defendant argues Plaintiff has failed to establish
he meets theses Listings. ECF No. 14.
To meet a listing under 1.04 for disorders of the spine, requires evidence of:

Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve
root (including the cauda equina) or the spinal cord with:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
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(sitting and supine);
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 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established
by findings on appropriate medically acceptable imaging, manifested
by chronic nonradicular pain and weakness, and resulting in inability
to ambulate effectively, as defined in 1.00B2b.

20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04.
Listing 1.04 requires medical evidence of nerve root compression, sensory or reflex loss, and
a positive straight-leg raising test. 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04(A). Plaintiff has failed
to provide medical evidence that documents the criteria for the listed impairment are met. Nor has
Plaintiff shown inability to ambulate effectively. In fact, the MRI on his lumbar spine showed
degenerative disc disease at L3-4, with deflection of the L4 nerve root; otherwise, the lumbar spine
appeared normal in alignment, with no evidence of compression fracture. (Tr. 372-374).
Plaintiff also argues he meets Listing 11.14 for peripheral neuropathy based on a diagnosis
of neuropathy. However, Plaintiff did not show his level of limitation met Listing 11.14.
In order to meet Listing 11.14, Plaintiff must have peripheral neuropathies “with
disorganization of motor function as described in 11.04B, in spite of prescribed treatment.” 20
C.F.R. pt. 404, subpt. P, app. 1, § 11.14. Listing 11.04B requires “significant and persistent
disorganization of motor function in two extremities, resulting in sustained disturbance of gross and
dexterous movements, or gait and station” Id. §11.04B. “Persistent disorganization of motor
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function in the form of paresis or paralysis, tremor or other involuntary movements, ataxia and
sensory disturbances (any or all of which may be due too cerebral, cerebellar, brain stem, spinal cord,
or peripheral nerve dysfunction) which occur singly or in various combinations, frequently provides
the sole or partial basis for decision in cases of neurological impairment. The assessment of
impairment depends on the degree of interference with locomotion and/or interference with the use
of fingers, hands, and arms.” Id. § 11.00C.
Plaintiff had a peripheral arterial evaluation of his lower extremity on July 29, 2014. (Tr.
359-362). The studies showed Plaintiff had a normal peripheral arterial evaluation of the lower
extremity. Id. Also, on November 5, 2014, Plaintiff underwent a CT exam of his abdomen, pelvis,
and lower extremities. (Tr. 370). The exam showed a 55-60 percent narrowing of the left superficial
femoral artery; the renal arteries had grossly good patency; and there was no additional finding in
the abdomen or pelvis. Id.
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.
C. 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
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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 Plaintiff had the RFC to perform light work with limitations. (Tr. 15, Finding
5). In response to a hypothetical question containing these limitations, the VE testified work existed
in the national economy consistent with the limitations found by the ALJ. (Tr. 53-55). The ALJ
found a significant number of jobs existed in the national economy which Plaintiff could perform.
(Tr. 19, Finding 10). Relying on the VE testimony, the ALJ found Plaintiff was not under a
disability as defined by the Act. (Tr. 20, Finding 11).
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,
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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 local economy for the vocational profile of the Plaintiff. Such
testimony, based on a hypothetical question consistent with the record, provided substantial
evidence.
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 28th day of July 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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