Martin v. Astrue

Filing 25

MEMORANDUM AND ORDER regarding Complaint, 1 filed by Johnny W. Martin. I conclude that the ALJ's decision is supported by substantial evidence on the record as a whole and is not contrary to law. IT IS ORDERED that the decision of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Final judgment will be entered by separate document. Ordered by Judge Richard G. Kopf. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHNNY W. MARTIN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,
Defendant.

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4:10CV3116

MEMORANDUM
AND ORDER

Johnny W. Martin (“Martin”) brings this suit challenging the Social Security
Commissioner’s final administrative decision denying his applications for disability
insurance benefits and supplemental security income payments under Titles II and
XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401 et seq.,1381 et seq.1 For the
reasons discussed below, the Commissioner’s decision will be affirmed.
I. BACKGROUND
In October 2005, Martin filed his applications for Title II and XVI benefits,
claiming that he became disabled on September 30, 2003 (Tr. 80-82).2 He was 35

1

Sections 205(g) and 1631(c)(3) of the Act, 42 U.S.C. §§ 405(g), 1383(c)(3),
provide for judicial review of the Commissioner’s final administrative decisions under
Titles II and XVI.
2

Previously filed applications for Title II and XVI benefits were denied in July
2002 and September 2004 (Tr. 44-51). In the 2002 applications, Martin claimed he
was unable to work because of hepatitis C, scoliosis, and bursitis in his hips and
shoulders; the Commissioner determined that Martin had a history of being treated for
some of the conditions, but that they did not impose significant functional restrictions
on his activities (Tr. 44). In the 2004 applications, Martin claimed he was disabled
because of severe back sprain and strain, subluxation complex, and hepatitis C; the

years of age as of his alleged disability onset date (Tr. 80). He has a tenth-grade
education (Tr. 146) and past relevant work experience as a press operator, cook,
janitor, construction worker, and roofer (Tr. 27, 87, 96, 118-30, 138-39). Martin
claimed to be disabled because of back pain, hepatitis C, and vision problems; the
Commissioner determined that although Martin required a period of recovery from
back surgery that was performed in November 2004, he was not entitled to benefits
because by March 2005 he was able to return to work activities that did not require
heavy lifting or frequent bending and stooping (Tr. 52-69).
After his applications were denied, Martin requested further review by an
administrative law judge (“ALJ”) (Tr. 42-43, 52-70). In October 2008, following a
hearing at which Martin was represented by an attorney (Tr. 434-75), the ALJ
determined that Martin was not disabled (Tr. 15-28). The ALJ concluded that Martin
was not disabled because, despite his severe back and shoulder impairments, Martin
could still perform his past relevant work as a press operator, as well as other light
exertional work that existed in significant numbers in the national economy, including
work as a meat cutter, hand packer, and solderer-assembler (Tr. 20, 27). The Appeals
Council denied Martin’s subsequent request for review (Tr. 7-9, 13, 419-29), thus
rendering the ALJ’s decision the Commissioner’s final decision.
A. The ALJ’s Findings
In his decision, the ALJ evaluated Martin’s claim according to the 5-step
sequential analysis prescribed by the Social Security Regulations.3 Among other

Commissioner found that within 12 months Martin’s condition should be improved
enough that he would be able to work at less strenuous jobs than his past work, and
thus he was not disabled (Tr. 48).
3

The sequential evaluation process is a series of five “steps” that
we follow in a set order. If we can find that you are disabled or not
disabled at a step, we make our determination or decision and we do not
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things, the ALJ found that:
1.

Martin has not engaged in any substantial gainful activity since

September 30, 2003, the alleged disability onset date (Tr. 20).
2.

Martin has the following severe impairments: “Degenerative disc

disease of the lumbar spine, status post L5-S1 fusion; status post arthroscopic
surgery, left shoulder” (Tr. 20).

go on to the next step. If we cannot find that you are disabled or not
disabled at a step, we go on to the next step. Before we go from step
three to step four, we assess your residual functional capacity. . . . We
use this residual functional capacity assessment at both step four and step
five when we evaluate your claim at these steps. These are the five steps
we follow:
(i) At the first step, we consider your work activity, if any. If you
are doing substantial gainful activity, we will find that you are not
disabled. . . .
(ii) At the second step, we consider the medical severity of your
impairment(s). If you do not have a severe medically determinable
physical or mental impairment that meets the duration requirement in
§ 404.1509, or a combination of impairments that is severe and meets the
duration requirement, we will find that you are not disabled. . . .
(iii) At the third step, we also consider the medical severity of
your impairment(s). If you have an impairment(s) that meets or equals
one of our listings in appendix 1 of this subpart and meets the duration
requirement, we will find that you are disabled. . . .
(iv) At the fourth step, we consider our assessment of your
residual functional capacity and your past relevant work. If you can still
do your past relevant work, we will find that you are not disabled. . . .
(v) At the fifth and last step, we consider our assessment of your
residual functional capacity and your age, education, and work
experience to see if you can make an adjustment to other work. If you
can make an adjustment to other work, we will find that you are not
disabled. If you cannot make an adjustment to other work, we will find
that you are disabled. . . .
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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3.

Martin does not have an impairment or combination of

impairments that meets or medically equals one of the impairments listed in
20 C.F.R., Part 404, Subpart P, Appendix 1 (Tr. 21).
4.

Martin “has the residual functional capacity to lift and carry 20

pounds occasionally and 10 pounds frequently; stand and/or walk 6 of 8 hours;
sit 6 of 8 hours; occasionally climb stairs, balance, stoop, kneel, crouch and
crawl; never climb ropes/scaffolds/ladders; avoid concentrated exposure to
vibration and hazards; and perform not more than occasional overhead reaching
with the left upper extremity” (Tr. 22).
5.

Martin “is capable of performing past relevant work as a press

operator, light unskilled, as the vocational expert testified. This work does not
require the performance of work-related activities precluded by the claimant’s
residual functional capacity” (Tr. 27).
6.

“Alternatively, . . . the vocational expert testified there are jobs

existing in significant numbers in the national economy that the claimant could
perform. Therefore, a finding of ‘not disabled’ is likewise appropriate under
the framework of Medical-Vocational Rule 202.18.”

4

(Tr. 27)

4

The Medical-Vocational Guidelines contained in 20 C.F.R. Part 404, Subpart
P, Appendix 2 are a set of tables used for determining whether an individual with
exertional limitations is disabled. Rule 202.18 indicates that a younger individual
with a limited education who previously performed skilled or semiskilled labor, and
who is now limited to performing light work, is not disabled.
“Where a claimant does not suffer from nonexertional impairments or where
such impairments ‘do not diminish or significantly limit the claimant’s residual
functional capacity to perform the full range of Guideline-listed activities,’ the
Commissioner may conduct this inquiry by consulting the Medical–Vocational
Guidelines (the Grids). Collins v. Astrue, __ F.3d __, 2011 WL 3444564, at *1 (8th
Cir. 2011) (quoting Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir.2005)). “However,
‘where the claimant suffers from a nonexertional impairment such as pain, the ALJ
must obtain the opinion of a vocational expert instead of relying on the
Medical–Vocational Guidelines.’” Id. (quoting Baker v. Barnhart, 457 F.3d 882, 894
(8th Cir.2006)).
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B. Statement of Issues
Martin challenges the ALJ’s findings set forth in paragraphs 4, 5, and 6 above.
In particular, he argues that the ALJ’s decision is contrary to law and not supported
by substantial evidence because:
1.
If correctly identified, [Martin’s] past relevant work as a
press operator lies beyond his residual functional capacity as found by
the ALJ;
2.
The analysis and finding as to his residual functional
capacity are incomplete and based on an incorrect legal standard;
3.
The discounting of [Martin’s] credibility is not supported
by substantial evidence and relies on use of an incorrect legal standard;
and
4.
The pertinent hypothetical question [the ALJ posed to the
vocational expert] failed to address material issues and so is legally
deficient.
(Filing 20 at 3)
Basically, Martin argues that (1) the press operator job was performed at the
medium exertion level, (2) the ALJ did not properly assess Martin’s ability to function
in the workplace, (3) the ALJ did not address Martin’s claim that he is limited in the
ability to reach forward, and (4) the hypothetical question did not include several
additional limitations. The Commissioner effectively concedes the first point but
disputes the rest, arguing that the ALJ made a proper RFC assessment, implicitly
rejected the forward-reaching limitation, and included in the hypothetical question all
limitations that were supported by the evidence.

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C. Statement of Facts
In July 2004, ten months after his alleged onset date, Martin presented to
emergency room physician Craig Bartruff, M.D., with complaints of pain in his hips
and legs (Tr. 210). Martin told Dr. Bartruff that he was working 12-hour days for a
sand and gravel company (Tr. 210). On examination, Martin could rotate his hips and
flex his knees without difficulty (Tr. 210). Straight-leg raises were also negative, and
Martin had no problem with heel-toe walking (Tr. 210). Martin, however, reported
general tenderness in his lumbosacral region (Tr. 210). Dr. Bartruff assessed general
inflammation with secondary spasm, prescribed pain medication, counseled Martin
on proper back care, and reassured him that “things seemed good at this point” (Tr.
210).
Later that month, Martin saw chiropractor Gary Nielsen, D.C. (Tr. 218,
296-98). He said that his back and hips hurt if he walked or stood for too long (Tr.
296). At that time, the chiropractor wrote that Martin was unable to perform “physical
labor due to his low back condition” (Tr. 215).
In August 2004, Martin presented to Toby Free, M.D., with complaints of low
back pain that caused him to stop working (Tr. 226). On examination, Martin walked
without difficulty, although straight-leg raises were positive for pain (Tr. 226). Dr.
Free also noted that earlier x-rays from Martin’s chiropractor revealed some mild
scoliosis and spondylolisthesis at L4 (Tr. 226).
Later that month, Martin presented to Ramon Salumbides, M.D., with
complaints of back pain that radiated to his hips (Tr. 207). He stated that his pain
worsened with prolonged standing, walking, sitting, lying down, excessive lifting, and
repetitive bending (Tr. 207). On examination, Martin reported tenderness in his low
back, but his gait appeared normal, straight-leg raises were negative, and he had full
range of motion in his back and rotation in his hips (Tr. 208). A lumbar spine MRI
revealed “some slight central bulging” at L4-L5, and spondylolisthesis, stenosis, and
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bulging at L5-S1 (Tr. 208, 213-14). Dr. Salumbides opined that Martin’s pain
stemmed from the spondylolisthesis at L5-S1; he believed that surgery would be
required eventually (Tr. 208).
That same month, in August 2004, Martin completed a Daily Activities and
Symptoms Report in connection with an earlier disability application (Tr. 113-19). In
this report, Martin wrote that he cooked meals three times daily (Tr. 113). He also
indicated that he could wash dishes, do laundry, and clean the house, although he
needed to take breaks during these activities (Tr. 113). Martin said he could sit for
“quite a while” before he started cramping, but that he could stand for only 15 minutes
before his legs hurt (Tr. 114). He wrote that he had pain “all day and night” in his
back, hips, and legs, and that his pain ranged from a 5/10 (good days) to 10/10 (bad
days) (Tr. 115).
In late September 2004, state agency reviewing physician Glen Knosp, M.D.,
opined that Martin’s back impairments limited him to lifting 20 pounds occasionally
and 10 pounds frequently, and sitting, standing, and walking six hours each in an
eight-hour workday (Tr. 230-37). Dr. Knosp further opined that Martin was limited
to occasional climbing, balancing, stooping, kneeling, crouching, and crawling; he did
not believe Martin had any reaching limitations (Tr. 232-33).
In November 2004, Martin presented to Daniel Tomes, M.D., for surgery on his
low back (Tr. 249, 254-56). Martin had no complications with the surgery; he reported
having “very good control of pain,” and walked without difficulty within a couple
days after the surgery (Tr. 249). Dr. Tomes told Martin to return in four weeks and
that, in the interim, he could walk as tolerated but should limit his bending, twisting,
and lifting to less than 15 pounds (Tr. 249). Dr. Tomes also provided Martin
prescriptions for Lortab and Flexeril to use as needed for pain (Tr. 250).
Two months later, in January 2005, Martin presented to Rachelle Kaspar-Cope,
M.D., for follow-up on his back surgery (Tr. 288). He reported that he was “really
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doing quite well,” that he felt “like he [was] back to his old self,” that he had been
active in physical therapy, that he was “walking every day,” and that he was
“generally feeling quite good” (Tr. 239, 288).
In April 2005, Martin saw Craig Svoboda, M.D., for evaluation of his back pain
(Tr. 286). He reported that he could not control his pain with Motrin and requested
prescription pain medication (Tr. 286). Martin also stated that he had been “trying to
get a job” but no employer would hire him “once they [got] his medical history” (Tr.
286). Dr. Svoboda prescribed Ultram and recommended a TENS unit and physical
therapy (Tr. 286).
In May 2005, Martin returned to Dr. Kaspar-Cope with complaints of a
headache that radiated into his neck (Tr. 267). On examination, Martin’s neck was
tender but he was otherwise neurologically intact and walked normal (Tr. 267). Dr.
Kaspar-Cope administered Toradol and Phenergan and told Martin to return if
problems persisted (Tr. 267).
Several months later, on September 15, 2005, Martin returned to Dr. Svoboda
with complaints of worsening low back pain (Tr. 285). On examination, Martin had
mild-to-moderate tenderness in his back (Tr. 285). Although he limped and said his
left leg was stiff, he walked independently (Tr. 285). Dr. Svoboda assessed low back
pain with sciatica, prescribed pain medication, and recommended physical therapy
(Tr. 285). Martin declined a physical therapy referral (Tr. 285).
Five days later, Martin saw Dr. Tomes with left leg pain (Tr. 292). Martin
remarked, however, that he had no pain in his right leg and low back (Tr. 292). Martin
said he doing some home remodeling, and that he was “quite active with that and
[had] been able to undertake a full work routine without difficulty” (Tr. 292). On
examination, Martin had good muscle tone, muscle bulk, and muscle strength
throughout his legs (Tr. 292). Dr. Tomes recommended a CT myelogram to help
evaluate the underlying cause of Martin’s pain (Tr. 292). In a letter to Dr. Svoboda
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following the examination, Dr. Tomes noted that treatment might include injections,
medication, or physical therapy, although he noted that Martin previously had been
“very much delinquent in his attendance” with physical therapy (Tr. 293).
On September 30, 2005, Martin protectively filed his applications for Social
Security benefits (Tr. 18).
In November 2005, Martin saw Lennie Deaver, M.D., and Tim Yrastorza,
P.A.-C, on two occasions with complaints of left leg pain that radiated from his back
(Tr. 291, 366). Significantly, Dr. Deaver noted during his examination that Martin
walked without any limping and could get on and off the table (Tr. 366). Similarly,
although Martin reported that he could not walk ten feet without severe pain,
Yrastorza observed him leaving the clinic with no signs of a limp (Tr. 291). A CT
myelogram showed satisfactory healing of his fusion with no evidence of pain (Tr.
291).
That same month, chiropractor Nielsen wrote that he had treated Martin for a
brief time in 2004 for back pain but that Martin declined further treatment (Tr. 298).
The chiropractor remarked that it was hard to ascertain Martin’s condition because he
did not complete the program (Tr. 297).
The following month, in December 2005, Martin saw W. Suleiman, M.D., with
complaints of persistent back pain that radiated into his hips and left leg (Tr. 294).
Martin said that sitting was his “best position, then standing, and then laying down”
(Tr. 294). Martin said he could not walk more than 30 feet without severe pain (Tr.
294). On examination, Martin walked with a “slightly antalgic gait, favoring the left
leg” (Tr. 294). He also had a slightly decreased range of motion in his back, but
otherwise he had full range of motion in all major and minor joints (Tr. 294). Dr.
Suleiman administered a left sacroiliac joint injection and prescribed physical therapy
(Tr. 294). He also told Martin that he expected his condition to improve, and he

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encouraged Martin “to be active, and to walk briskly,” gradually building up to 40
minutes daily (Tr. 294).
In January 2006, Martin presented to Scott Smith, M.D., with complaints of left
leg pain and weakness (Tr. 300). Dr. Smith noted that Martin’s most recent
myelogram was unremarkable (Tr. 300). After an examination revealed no
abnormalities, Dr. Smith prescribed Lyrica (Tr. 301). Two months later, when seeking
treatment for a headache, Martin admitted that he had been working on a house when
a piece of ceiling plaster fell and hit him on the head (Tr. 360, 366).
In March 2006, state agency physician Dr. Knosp completed a second record
review. (Tr. 318-325). He opined that Martin could lift 20 pounds occasionally and
10 pounds frequently, and sit, stand, and walk six hours in an eight-hour workday (Tr.
319). Dr. Knosp further opined that Martin could occasionally balance, stoop, kneel,
crouch, and crawl, and that Martin had no reaching limitations (Tr. 320-21). In May
2006, P. Grossman, M.D., affirmed Dr. Knosp’s opinion (Tr. 317).
Approximately one year later, in April 2007, Martin presented to Cambridge
Memorial Hospital with complaints of pain in his chest, left arm and back (Tr. 355).
On examination, Martin’s heart rate and rhythm were normal, his lungs were clear,
and he had full range of motion in his left arm (Tr. 355). After a chest x-ray revealed
no abnormalities, Dr. Kaspar-Cope assessed atypical chest-back-arm pain and
administered morphine for pain relief (Tr. 355). A cervical spine MRI performed later
that month also revealed no abnormalities (Tr. 382).
In August 2007, Martin saw David Huebner, M.D., for treatment of his right leg
(Tr. 404). He reported that he had broken his leg two weeks earlier while visiting his
brother in Louisiana, and that he had been on non-weight bearing on crutches since
that time (Tr. 404). On examination, Martin appeared well-developed and in no
apparent distress (Tr. 404). He also had full strength in all muscle groups (Tr. 404).

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X-rays confirmed a spiral fracture in the distal tibia (Tr. 404). Dr. Huebner continued
Martin with his cast and crutches and told him to follow-up in two weeks (Tr. 404).
In September 2007, Martin returned to Dr. Huebner for evaluation of his right
leg (Tr. 402). He said that he was “doing well” other than some pain in his right calf
and ankle (Tr. 402). On examination, Martin had some limited range of motion in his
right ankle due to stiffness (Tr. 402). Dr. Huebner recommended a short leg cast as he
continued to work on weight bearing (Tr. 402).
Several months later, in June 2008, Martin presented to the Kearney Orthopedic
Clinic with complaints of right arm pain (Tr. 370). On examination, Martin had full
extension and flexion in his right arm and right shoulder (Tr. 370-71). X-rays of his
right arm, elbow, and shoulder were negative (Tr. 369, 373-74), and a right arm nerve
conduction study was also normal (Tr. 378). Chris Wilkinson, M.D., assessed possible
tendinitis and prescribed Ultram (Tr. 371).
In September 2008, Martin, his attorney, and a vocational expert appeared for
a video hearing (Tr. 434-75). Martin testified that he lived with his wife, his
11-year-old son, and 2-year-old grandson (Tr. 438-39). He testified that his back pain
worsened after his surgery, that he had daily pain in his low back that worsens with
walking, kneeling, and lifting, and that his legs “give out” at times (Tr. 441-42).
Martin testified that he had tried physical therapy, a TENS unit, and pain medication
in the past, but that he was not currently taking any pain medication (Tr. 442-43). He
testified that he also has constant but not intense pain in his shoulders (Tr. 444).
Martin said that he helped his wife care for his son and grandson (Tr. 446). He said
he could not lift his grandson but he could change his diaper, that he helped with the
house cleaning and fixed meals, and that he mowed the lawn with a push mower (Tr.
446-47). Martin testified he could lift 25 pounds comfortably, and sit 4 hours and
stand and walk 2 hours each during an eight-hour day (Tr. 449-51). He said his
shoulders hurt with both overhead and forward lifting (Tr. 451).

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The ALJ asked the vocational expert to consider a hypothetical claimant of
Martin’s age, education, and work experience, who could lift and carry 20 pounds
occasionally and 10 pounds frequently, and sit, stand, and walk six hours each in an
eight-hour workday (Tr. 468). The claimant could not climb ropes, ladders, and
scaffolds, and could only occasionally balance, climb ramps and stairs, and perform
overhead reaching with his left arm (Tr. 468). The vocational expert responded that
such a claimant could perform Martin’s past relevant work as a press operator (Tr.
468). In addition, the vocational expert testified that such a claimant could perform
“light” exertional work as a meat cutter, hand packer, and a production line solderer.
The vocational expert clarified that these jobs would not be precluded even if the
claimant was limited to occasional overhead reaching with both arms, but that all of
the identified jobs would be precluded if the claimant could not perform at least
frequent forward reaching (Tr. 469-70).
II. DISCUSSION
The applicable standard of review is whether the Commissioner’s decision is
supported by substantial evidence on the record as a whole. See Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008). “ Substantial evidence is less than a preponderance
but is enough that a reasonable mind would find it adequate to support the
conclusion.” Id. (internal quotations and citations omitted). Evidence that both
supports and detracts from the Commissioner’s decision should be considered, but a
final administrative decision is not subject to reversal by a reviewing court merely
because some evidence in the record may support a different conclusion. See id.
Questions of law, however, are reviewed de novo. See Olson v. Apfel, 170 F.3d
822 (8th Cir. 1999); Boock v. Shalala, 48 F.3d 348, 351 n2 (8th Cir. 1995). Legal
error may be an error of procedure, Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th
Cir. 2003), the use of erroneous legal standards, or an incorrect application of the law,
Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir. 1983).

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A. Residual Functional Capacity
A claimant’s residual functional capacity (“RFC”) represents the most he can
do despite the combined effect of his credible limitations. See 20 C.F.R. §§ 404.1545,
416.945. The ALJ is responsible for assessing a claimant’s RFC based on all the
relevant evidence, including the claimant’s description of his limitations, the medical
records, and observations of the claimant’s physicians and others. See Young v. Apfel,
221 F.3d 1065, 1069 n.5 (8th Cir. 2000). In making this assessment, the ALJ has
discretion to discredit a claimant’s self-reported limitations if he determines they are
inconsistent with the record based on his evaluation of the relevant factors set forth
in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), and 20 C.F.R. §§ 404.1529,
416.929. Such factors include the claimant’s prior work records; observations by third
parties and physicians regarding the claimant’s disability; the claimant’s daily
activities; the duration, frequency, and intensity of pain; precipitating and aggravating
factors; dosage, effectiveness and side effects of medications; and the claimant’s
self-imposed functional restrictions. See Polaski, 739 F.2d at 1322.
Although the RFC is a medical question, an ALJ’s RFC findings need not be
directly tied to a specific medical opinion in the record. Rather, the ALJ has the duty
to determine a claimant’s RFC based on all the relevant, credible evidence of record.
See Ellis, 392 F.3d at 994 (“[A]lthough medical source opinions are considered in
assessing RFC, the final determination of RFC is left to the Commissioner.”);
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (ALJ must determine a
claimant’s RFC based on all the relevant evidence, including the medical records,
observations of treating physicians and others, and an individual’s own description of
his limitations); cf. Dykes v. Apfel, 223 F.3d 865, 866-67 (8th Cir. 2000) (RFC is a
determination based on all the evidence but the record must include some medical
evidence to support the RFC finding).
The ALJ found that Martin’s back and shoulder impairments “ cause significant
limitation in the claimant’s ability to perform basic work activities.” (Tr. 20) He also
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found that Martin “has nonsevere impairments including Hepatitis C, visual problem,
and leg fracture.” (Tr. 20) According to the ALJ, Martin “denied any problem arising
from Hepatitis C, and he has only mild amblopia of eye with minimal functional
limitation (Exhibit 22F, p. 1). The claimant’s right leg injury occurred in August, 2007
(Exhibit 28F), at which time he rented a wheelchair probably to elevate right tibia
pilon fracture (Exhibit 27F, pp. 17-18). However, he has received no further treatment
since September 7, 2007 and there is no evidence of problems with healing (Exhibit
28F). Accordingly, these impairments would have no more than a minimal effect, if
any, on the claimant’s ability to engage in basic work-related activities (SSR 96-3p).”
(Tr. 20-21) Martin does not dispute these findings.
“As to a possible psychiatric impairment,” the ALJ “note[d] the claimant is not
undergoing any regular and ongoing treatment for depression and anxiety though he
does have a prescription for Klonopin. In an Initial Assessment/Treatment Plan dated
March 6, 2006, Dr. Johnson assessed the claimant’s Global Assessment of
Functioning (GAF) as 68, which the DSM IV-TR defines as some ‘mild’ symptoms,
or some difficulty in social, occupational, or school functioning, but generally
functioning pretty well, has some meaningful interpersonal relationships. Dr. Johnson
further advised the claimant ‘has absolutely no symptoms of depression’ (Exhibit
23F).” (Tr. 21) Accordingly, the ALJ found that “the claimant’s depression and
anxiety (Exhibit 17F, p. 5), considered singly and in combination, do not cause more
than minimal limitation in the claimant’s ability to perform basic mental work
activities and are therefore nonsevere.” (Tr. 21) The ALJ further explained:
In making this finding, I have considered the four broad functional
areas set out in the disability regulations for evaluating mental disorders
and in section 12.00C of the Listing of Impairments (20 CFR, Part 404,
Subpart P, Appendix 1). These four broad functional areas are known as
the “paragraph B” criteria.
The first functional area is activities of daily living. In this area,
the claimant has no limitation (he fixes breakfast, does light
housecleaning, watches television and listens to the radio—what
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limitations he has in this area he attributes to physical problems). The
next functional area is social functioning. In this area, the claimant has
no limitation (the claimant relates no particular problem getting along
with people). The third functional area is concentration, persistence or
pace. In this area, the record establishes no evidence of limitation. The
fourth functional area is episodes of decompensation. In this area, the
claimant has experienced no episodes of decompensation (see, Exhibit
25F, p. 12). Because the claimant’s medically determinable mental
impairments cause no more than “mild” limitation in any of the first
three functional areas and “no” limitation in the fourth area, they are
nonsevere (20 CFR 404.1520a( d)( 1) and 416.920a(d)(1 )).
(Tr. 21) Again, Martin does not dispute these findings.
In making a finding of Martin’s residual functional capacity, the ALJ stated that
he “considered all symptoms and the extent to which these symptoms can reasonably
be accepted as consistent with the objective medical evidence and other evidence,
based on the requirements of 20 CFR 404.1529 and 416.929 (incorporating and
expanding upon Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984); SSR 96-4p; SSR
96-7p.” (Tr. 22) The ALJ also claimed to have “considered the opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and 416.927, and SSRs 96-2p,
96-5p, 96-6p and 06-3p.” (Tr 22) Martin charges, however, that the ALJ failed to
comply with Social Security Ruling (SSR) 96-8p by assessing his residual functional
capacity “for work activity on a regular and continuing basis.”

5

I find no merit to Martin’s argument. In his decision, the ALJ correctly stated
that “an individual’s residual functional capacity is his ability to do physical and
mental work activities on a sustained basis despite limitations from his impairments”
5

This ruling emphasizes that “[o]rdinarily, RFC is an assessment of an
individual’s ability to do sustained work-related physical and mental activities in a
work setting on a regular and continuing basis. A ‘regular and continuing basis’ means
8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p, 1996
WL 374184, at *1 (Social Security Administration, July 2, 1996).
-15-

(Tr. 19) and also that Martin would be considered not disabled if he had the RFC to
return to his past relevant work or perform other work existing in significant numbers
(Tr. 20). In the RFC assessment, as well as in the hypothetical question posed to the
vocational expert, the ALJ specifically discussed Martin’s RFC in the context of an
eight-hour workday (Tr. 22, 468). There is no indication that the ALJ failed to assess
Martin’s “ability to perform the requisite physical acts day in and day out, in the
sometimes competitive and stressful conditions in which real people work in the real
world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc).
The RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g.,
daily activities, observations). In assessing RFC, the adjudicator must
discuss the individual’s ability to perform sustained work activities in an
ordinary work setting on a regular and continuing basis (i.e., 8 hours a
day, for 5 days a week, or an equivalent work schedule), and describe the
maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The
adjudicator must also explain how any material inconsistencies or
ambiguities in the evidence in the case record were considered and
resolved.
SSR 96-8p, 1996 WL 374184, at *7 (footnote omitted).
Although Martin asserts that the ALJ’s decision does not contain an adequate
discussion of his ability to perform sustained work activities, I conclude that it does.
The ALJ first summarized Martin’s testimony given on September 8, 2008:
The claimant testified he lives in a mobile home with his wife,
11-year-old son and 2-year-old grandson. He said his wife does not
work. He stated he receives Medicaid and Food Stamps. He is 5’4” and
weighs 159-160 pounds, is right handed, completed the 10th grade, and
has not since acquired any additional formal education or vocational
training. The claimant testified further he worked for a road construction
crew from July 25-27, 2004. He alleges he is incapable of working as a
-16-

result of a back problem, status post lumbar fusion in 2004. He claims
his condition has worsened since undergoing surgery. He stated he has
low back pain in the mid back which is aggravated by walking and
kneeling. He alleges he cannot move, and his wife has to help him daily.
Mr. Martin additionally testified he was on pain pills, but got sick and
now tries to stay away from them. He said he has tried hot/cold packs,
a TENS unit, physical therapy, and chiropractic manipulations, but
nothing helped. The claimant described he also has shoulder problems,
and is status post left shoulder surgery which was somewhat helpful, but
he still has pain everyday in both shoulders. He stated he has received no
treatment for Hepatitis, and does not think it is problematic. Mr. Martin
related he has headaches 1-2 times a month which last a couple of days
each time, and rates his pain as 10 (1-10 scale). Mr. Martin also testified
he has an elbow problem but is lacking a diagnosis, and was told he
might need surgery. He said he also has a broken ankle. As to his
activities of daily living, the claimant testified he gets up at 6 a.m., and
his wife helps him get out of bed. He is able to manage personal
grooming, and both he and his wife take care of 2-year-old grandson, and
he changes his diapers. Mr. Martin stated he cannot vacuum or empty the
trash, and it takes him longer to do the dishes. He said he could mow the
lawn with a push mower. He related he enjoys collecting things such as
motorcycle toys, finger rings, Dale Earnhardt memorabilia, etc. He said
he attended church before his granddaughter died, watches TV for 5-6
hours, and does not attend movies. Mr. Martin reported he could lift 25
pounds comfortably, stand 2 of 8 hours (30 minutes at one time), walk
2 of 8 hours (30 minutes at one time), sit 1 hour at one time and a total
of 3-4 hours in an 8-hour day, cannot bend or stoop, and sits on a chair
with legs pulled up to tie shoes. He alleges he has pain with reaching in
front and above shoulders.
In response to questioning by his representative, the claimant
testified he cannot lift 25 pounds all day, but rather ½ hour at one time,
stand ½ hour and then has to rest, walk ¼ mile per day with 2 breaks,
and can sit an hour but has to stand and/or walk around 10 minutes
before he can sit again. He stated he ended up in the emergency room
when he attempted to work in July, 2004. Mr. Martin also testified he
had to lift at least 50-60 pounds on a construction job. He stated he has
worked as a laborer/roofer and had to lift l00+ pounds daily. The
-17-

claimant described he now takes medication for anxiety. He alleges he
cannot perform his previous jobs due to back problems. He related he
tried to fix a hole in the house, and ended up in bed for 3 days. He
testified he could no longer do housework. Mr. Martin stated he is
mainly at home, although he visits his mother who lives in front of him.
(Tr. 22-23) The ALJ next detailed Martin’s medical history, providing appropriate
references to the record, and concluded that “the claimant’s medically determinable
impairments could reasonably be expected to produce the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with the residual
functional capacity assessment . . .. (Tr. 23-26) The ALJ further explained:
The claimant’s testimony is not credible to the effect he is totally
precluded from all sustained work activity. None of the physicians of
record has expressed the opinion that he is totally disabled or incapable
of working. Nor did they advise him against substantial gainful activity.
Even after back surgery upon discharge from the hospital he was advised
not to lift more than 15 lbs, limit bending and twisting at the waistline
and ambulate as tolerate[d] during the recovery period. Such limitation
alone would no[t] preclude lighter work.6 Moreover, despite allegations
of disabling pain, the claimant currently takes no medication [to] relieve
pain, for fear of addiction he states. He has tried other treatment
modalities but was described as very much delinquent with physical
therapy attendance (Exhibit 18, page 2) and continued smoking against
medical advice while recovering from fusion surgery (Exhibit 17F).
Following surgery a CT myelogram showed satisfactory healing of inter
body fusion. By September, 2005, he had had a good recovery and was
described by his doctor as working full time in the remodeling business.
He is not a candidate for additional surgery. Also noteworthy is the

6

Martin notes that “in response to a hypothetical question based largely on
those restrictions as interpreted by the ALJ, the VE [vocational expert] restricted
remaining candidate jobs to sedentary work (Tr. 471-472).” (Filing 20 at 15-16) The
VE testified that a person with these restrictions would be able to work, for example,
as a food and beverage order clerk, assembler, or hand laborer (Tr. 472)
-18-

observation at Exhibit 18F, page 2 that although he alleged he could not
walk more than 10 feet without experiencing severe pain, he was
observed to walk about 50 feet without a sign of a limp (Exhibit 18F, p.
2). When seen at the hospital feeling dizzy and drowsy he had injured
himself working on the house when he was hit by a piece of ceiling
plaster. At the hearing he changed his testimony with respect to his
functional capacities upon cross examination by his representative.7
Although Mr. Martin alleges right shoulder problems, an extensive
workup in this regard was essentially negative.8 I also note he engages
7

Regarding his “changed testimony,” Martin states that there was a difference
in some of the questions being asked: “Some of the ALJ’s questions, such as the one
at Tr. 449 about lifting [“[H]ow much do you feel you can lift comfortably?], seemed
to address one-time events or events separated by unknown periods of rest or
undesignated posture. The representative’s questions tended more toward capacities
for a full day or events done in sequence. . .. Thus, Martin can lift 25 pounds
comfortably (Tr. 449) but cannot do so throughout an eight-hour shift (Tr. 452).”
(Filing 20 at 17) In response to his attorney’s questions, though, Martin testified he
could lift 25 pounds at intervals throughout an 8-hour day; Martin also stated he could
pick up and hold a 25 pound weight for a half hour at a time, or for 15 to 20 minutes
if he was moving it (Tr. 452). The ALJ determined that Martin has the residual
functional capacity to lift and carry 20 pounds occasionally (i.e., “occurring from very
little up to one-third of an 8-hour workday (cumulative, not continuous) (Tr. 318)) and
10 pounds frequently (i.e., occurring one-third to two-thirds of an 8-hour workday
(cumulative, not continuous) (id.)) (Tr. 22).
8

Martin complains that the ALJ “points to nothing in that work-up which tests
the shoulder by the kind of repeated motion against resistance which it would
encounter in the lifting which defines light work under 20 C.F.R. 404. 1567(b). The
ALJ points to no medical evidence that the radiographic testing in question is
diagnostic for the right shoulder’s condition when that joint is placed under such
stress. Where resistance testing was tried, it produced the finding that Martin ‘has pain
on resistance to right elbow flexion and forearm supination’ (Tr. 371).” (Filing 20 at
17) Significantly, Martin does not dispute the ALJ’s statement that the results of the
medical exam were “essentially negative.” As described by the ALJ, the workup
regarding Martin’s complaints of right arm pain revealed the following:
The claimant was also evaluated on June 18, 2008, in reference to a
-19-

in a wide range of age-appropriate activities not fully consistent with his
allegation of disability. For example, he is independent in self-care
activities, mows the lawn with a push mower, collects Dale Earnhardt
memorabilia and miniature motorcycles, watches movies everyday, goes
outside and visits others 2 times a week, is visited by others 2 times a
week, adjusts to changes, cooks 5 days a week, assists with the
supervision of 1 child for 2-3 hours daily, handles his own money, gets
along well with employees and handles criticism well, cares for pets, and
is able to concentrate and maintain attention (Exhibits 9E-l0E/
Testimony). While in themselves these activities are no[t] proof of work
capacity, they do tend, in combination with the other factors noted
above, to suggest that the claimant is not in as much pain as he claims
and is not as functional[ly] limited as parts of his testimony would
indicate. Accordingly, for all of the above and foregoing, I find the
above residual functional capacity assessment is supported by the
medical findings and assessments as discussed herein.
As for the opinion evidence, the State agency found the claimant
had no severe mental impairment(s) (Exhibits 7F, 25F), and that he
retained the residual functional capacity for light work with occasional
climbing, balancing, stooping, kneeling, crouching, and crawling, and
should avoid concentrated exposure to vibration and hazards (Exhibits
complaint of right arm pain. Pertinent examination revealed full
extension and full flexion of the elbow. He seemed to have either a divot
or a prominence at the distal biceps tendon. There was tenderness over
the lacertus fibrosis. The claimant had full range of motion in his right
shoulder and was non-tender about his right shoulder. He had pain on
resistance to elbow flexion and forearm supination (Exhibit 27F, pp.
8-9). X-ray of the right humerus showed no fracture, dislocation, or other
active process (Exhibit 27F, p. 14). Films of the right shoulder showed
no fracture, dislocation, or bone destruction. There was minimal
degenerative change at the AC joint. There was no definitive active
process (Exhibit 27F, p. 13). A nerve conduction study of the right upper
extremity was normal (Exhibit 27F, p. 16). An MRI of the right elbow,
June 22, 2008, was within normal limits (Exhibit 27F, p. 12).
(Tr. 25)
-20-

12F, 24F). I afford significant weight to these assessments as they are
consistent with the record as a whole
(Tr. 26)
Martin argues the ALJ’s finding that his testimony was “not credible to the
effect he is totally precluded from all sustained work activity” shows that the ALJ
erred as a matter of law because he did not state that the “sustained work activity”
needs to be “substantial” and “gainful.” See 42 U.S.C. § 1382c(a)( 3)(A) (“[A]n
individual shall be considered to be disabled . . . if he is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment . . ..”); 20 C.F.R. §§ 404.1510, 416.910 (“Substantial gainful
activity” means work that (a) involves doing significant and productive physical or
mental duties and (b) is done (or intended) for pay or profit). See also 20 C.F.R. §§
404.1572, 416.972 (defining “substantial” and “gainful”). Martin argues that the ALJ
required him “to prove that he could not, for example, do ‘sustained’ volunteer or
other unremunerative work.” (Filing 20 at 9) This argument is baseless. The ALJ
found at step one that Martin had not engaged in substantial gainful activity since the
alleged disability onset date, and found at step five that he could work as a meat
cutter, hand packager, and solderer-assembler (Tr. 27).
Martin also objects that the ALJ’s reference to “all sustained work activity”
shows that he failed to apply the correct legal standard because “[a]t step four, Martin
has the burden of proof not as to ‘all’ work but only as to his past relevant work,” and
“[a]t step five, the Commissioner, in carrying his burden of going forward, may not
draw upon ‘all work’ but is, instead, restricted to work for which Martin is
vocationally qualified . . . and which his RFC would permit him to do full-time . . ..”
(Filing 20 at 9-10) Again, this argument is baseless – the ALJ’s decision makes clear
that the correct legal standards were applied at steps four and five.

-21-

Martin also takes issue with the ALJ’s reliance upon the fact that none of the
physicians had expressed the opinion that he is incapable of working or advised him
against substantial gainful activity. If a physician is not asked to assess a claimant’s
ability to work, his silence on this question cannot be used as substantial evidence the
claimant is not disabled. See Pate-Fires v. Astrue, 564 F.3d 935, 943-44 (8th Cir.
2009) (citing Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir.2001); Lauer v. Apfel,
245 F.3d 700, 705 (8th Cir.2001)). But cf. Young, 221 F.3d at 1069 (“We find it
significant that no physician who examined Young submitted a medical conclusion
that she is disabled and unable to perform any type of work.”). On the other hand, the
lack of any significant restrictions imposed by Martin’s doctors is inconsistent with
his complaints of disabling pain. See Brown v. Chater, 87 F.3d 963, 965 (8th Cir.
1996); Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993).
Martin next objects that the ALJ “does not explain why even an ability to walk
50 feet without a limp [after leaving the doctor’s office] implies an ability to stand or
walk for six hours per shift, five days a week, on a regular and continuing basis.”
(Filing 20 at 16) The significance of this evidence, obviously, is that the physician’s
assistant who observed Martin walking believed that he had been untruthful when he
reported that he could not walk more than 10 feet without experiencing severe pain.
The ALJ’s consideration of the evidence was therefore proper. “The ALJ must first
evaluate the claimant’s credibility before determining a claimant’s RFC.” Tellez v.
Barnhart, 403 F.3d 953, 957 (8th Cir. 2005).
As further evidence that Martin’s complaints of pain were not fully credible, the
ALJ noted that he engaged in a “wide range” of daily activities. Martin argues that
the ALJ did not adequately develop the record in this area, and that without more
information concerning the nature and extent of his activities the evidence is not
relevant. For example, when asked if he was able to use the push mower, Martin
responded, “Not very well. Not without lots of breaks.” (Tr. 447) Given this response,
Martin argues that the ALJ should have asked follow-up questions:

-22-

The ALJ made no inquiry concerning the number and duration of
breaks required within a given period of attempted mowing and so had
no way to compare these efforts with the demands of full-time,
competitive light work. The size of the area mowed, the time required to
finish the job and the effect (if any) oft [sic] effort on Martin’s symptoms
were not addressed by the ALJ.9 Besides, mowing is seasonal; and even
during the season it does not need to be done every day. In short, the
attempted mowing, without the missing information, is in no way
inconsistent with an allegation of inability to sustain full-time work. Nor
does it support the ALJ’s finding that Martin can sit six hours per shift
or spend six hours per shift on his feet (Tr. 22, Finding 5). Since the
mowing provides no evidence relevant to measuring Martin’s RFC, it
should not have been used to do so or to discredit his testimony.
(Filing 20 at 11) Martin’s ability to mow his lawn with a push mower, even though
he may not be able to do it very well, clearly is relevant to the question of credibility.
See, e.g., Medhaug v. Astrue , 578 F.3d 805, 817 (8th Cir. 2009) (claimant’s reported
activity level, including occasional lawn mowing, was inconsistent with allegations
of disabling pain). The ALJ states in his decision that this activity and Martin’s other
activities of daily living “are no[t] proof of work capacity, [but] they do tend, in
combination with the other factors . . . to suggest that the claimant is not in as much
pain as he claims and is not as functional[ly] limited as parts of his testimony would
indicate.” (Tr. 26) This is a correct application of the law. “Although daily activities
alone do not disprove disability, they are a factor to consider in evaluating subjective
complaints of pain.” Wilson v. Chater, 76 F.3d 238, 241 (8th Cir. 1996).
While Martin devotes much of his brief to a discussion of the ALJ’s listing of
his activities of daily living, the ALJ does not appear to have placed undue reliance
upon those activities in discounting Martin’s complaints of pain. Even assuming that
the ALJ should have asked Martin more questions, see, e.g., Dixon v. Barnhart, 324
F.3d 997, 1002 (8th Cir. 2003) (ALJ erred in relying upon statements that claimant

9

Martin has not answered these questions in his post-hearing affidavit, either.
-23-

engaged in daily life activities of driving, gardening, mowing, shopping, and reading
to discredit treating physician’s opinion where record pertaining to claimant’s daily
activities was not fully developed), Martin “must show both a failure to develop
necessary evidence and unfairness or prejudice from that failure.” Combs v. Astrue,
243 Fed.Appx. 200, 204, 2007 WL 2174555, at *4 (8th Cir. 2007) (citing Haley v.
Massanari, 258 F.3d 742, 749-50 (8th Cir. 2001)). See also Ellis, 392 F.3d at 994
(rejecting argument that ALJ failed to develop record where no unfairness or prejudice
shown); Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995) (“[R]eversal due to
failure to develop the record is only warranted where such failure is unfair or
prejudicial.”) Martin has not made the required showing of unfairness or prejudice.
“The RFC is a function-by-function assessment of an individual’s ability to do
work-related activities based upon all of the relevant evidence.” Casey v. Astrue, 503
F.3d 687, 696 (8th Cir 2007) (quoting Harris v. Barnhart, 356 F.3d 926, 929 (8th Cir.
2004)). “The RFC assessment must first identify the individual’s functional
limitations or restrictions and assess his or her work-related abilities on a
function-by-function basis, including the functions in paragraphs (b), (c), and (d) of
20 CFR 404.1545 and 416.945. Only after that may RFC be expressed in terms of the
exertional levels of work, sedentary, light, medium, heavy, and very heavy.” S.S.R.
96-8p, 1996 WL 374184, at *1 (Soc. Sec. Admin. July 2, 1996). Physical demands
of work include “sitting, walking, lifting, carrying, pushing, pulling, . . . [and]
manipulative or postural functions, such as reaching, handling, stooping or crouching
. . ..” 20 C.F.R. §§ 404.1545(b), 416.945(b).
Martin contends the ALJ failed to give adequate consideration to the function
of “reaching.” The ALJ found that Martin can “perform not more than occasional
overhead reaching with the left upper extremity” (Tr. 22),10 but Martin claims he is

10

In August 2002, Martin suffered a fractured dislocation of his left shoulder
(Tr. 212, 227, 280). In January 2003, he underwent arthroscopic surgery and repair
of the left shoulder (Tr. 211, 280). The surgeon, Richard Slovek, M.D., found in
-24-

also limited in his ability to reach forward with both arms. Martin did not mention
any problem with his shoulders in the disability report filed in conjunction with his
2005 applications,11 but at the hearing the following exchanges occurred:
Q [by the ALJ] Okay. Other than the back, what other issues do
you have?
A [by Martin] I have shoulder problems.
Q Right or left?
A Both, but I had surgery on my left shoulder, orthoscopic [sic]
surgery on my left shoulder.
Q What did you have surgery for?
A Because I completely, how, how do they put that? Not
dislocated but I completely separated by shoulder.
Q Did the surgery help?
A Some. But it just now, it’s, just a constant pain every day. It’s
not an intense one, but it’s there every single day.
Q How about the right shoulder?
A It’s, it’s just a dull pain, too, every single day.
...
Q Was it the same problem as the left shoulder?
A [INAUDIBLE]. No I hadn’t separated it. It’s just, I have no
idea what it is actually. Right now I’m supposed to be going to Dr.
Wilkerson [sic] to figure out what’s going on there.
...
Q Since you’re having problems with you shoulder, how often
can you reach overhead?
A Not very often at all.
Q How about straight in front of you?
A It’s about the same. No, it hurts. It’s burning sensations.
Q Is that same with both shoulders?

February 2003 that Martin was “doing well” and would be able to return to
construction work the following month (Tr. 211).
11

Martin listed only “Back and eye problems & hepatitis c” and stated, “I can
hardly walk and I cant [sic] walk far distances. I cant [sic] bend, I walk with a limp.
I have pain in my back and I get a shooting pain in my left leg.” (Tr. 141)
-25-

A Yes, sir. Just more in my left than my right. But it’s about, it’s
the same. I get the same sensation.
(Tr. 443-44, 451)
When Chris Wilkinson, M.D., examined Martin on June 18, 2008, about three
months before the hearing, he had “full range of motion in his right shoulder and
[was] non-tender about his right shoulder.” (Tr. 370-71) Radiographs of the right
shoulder also found “no bony injuries or abnormalities about the shoulder” and “no
significant loss of acromiohumeral distance.” (Tr. 369) In short, the right shoulder
was “unremarkable.” (Tr. 369, 371)
At the hearing, the ALJ posed an alternative hypothetical question to the
vocational expert which asked her assume an individual who “[c]an only occasionally
up to one-third of the day reach overhead or in front of his body or out to the side.”
(Tr. 472) The VE testified that such a limitation on forward reaching would prevent
the individual from performing any work (id.).
The ALJ referenced Martin’s testimony in his decision, stating: “The claimant
described he also has shoulder problems, and is status post left shoulder surgery which
was somewhat helpful, but he still has pain everyday in both shoulders. . . . He alleges
he has pain with reaching in front and above shoulders.” (Tr. 22-23) Although the
ALJ did not specifically explain why he rejected Martin’s claim that he is limited in
he ability to reach forward, it is apparent from the ALJ’s decision, and from the
alternative hypothetical question posed at the hearing, that he considered the claim in
accordance with the function-by-function approach required by SSR 96-8p.
The situation is similar to that presented in Depover v. Barnhart, 349 F.3d 563
(8th Cir. 2003), where the ALJ did not make specific RFC findings regarding the
claimant’s ability to sit, stand, and walk. The Court of Appeals held this was not
reversible error, stating:
-26-

[The ALJ] made explicit findings [regarding certain physical functions]
and, although we would have preferred that he had made specific
findings as to sitting, standing, and walking, we do not believe that he
overlooked those functions. We think instead that the record reflects that
the ALJ implicitly found that Mr. Depover was not limited in these
areas: We note initially that all of the functions that the ALJ specifically
addressed in the RFC were those in which he found a limitation, thus
giving us some reason to believe that those functions that he omitted
were those that were not limited. Furthermore, at the hearing, the ALJ
first posed a hypothetical question to the vocational expert that included
the RFC that he (the ALJ) found. After the expert concluded that Mr.
Depover could perform his past relevant work as a sporting goods sales
clerk or a cashier/checker, the ALJ asked him an alternative hypothetical
question that included the limitations on sitting, standing, and walking
to which Mr. Depover had testified at the hearing. We note, also, that in
his decision the ALJ noted that Mr. Depover had testified that he could
not do his past work because he could not stand for long periods.
Therefore it appears to us that the ALJ did not simply overlook the
possibility that Mr. Depover was limited with respect to sitting, standing,
or walking when he stated his RFC. Having carefully reviewed the
record, we believe that the ALJ implicitly found that Mr. Depover was
not limited in these functions, and in this instance we do not see any
reason to remand to make the findings explicit.
Id. at 567-68.
In summary, the ALJ made proper assessments of Martin’s credibility and
residual functional capacity, and there is substantial evidence to support the ALJ’s
findings. I must next determine whether there is substantial evidence to support the
ALJ’s findings that Martin’s RFC permits him to perform past relevant work or other
work that exists in significant numbers in the national and regional economies.

-27-

B. Step Four
The ALJ determined at step four of the evaluation process that “[t]he claimant
is capable of performing past relevant work as a press operator, light unskilled, as the
vocational expert testified.” (Tr. 27)12 Martin claims this finding was erroneous
because he indicated in responding to questionnaires that the job constantly required
him to bend and crouch, frequently required him to lift and carry 50 pounds or more,
and also required him to stand or walk for 8 hours a day, with no sitting (Tr. 96, 13839).13 Martin’s RFC, as determined the ALJ, only permits him to stoop and crouch
occasionally, lift 10 pounds frequently, and stand or walk for 6 of 8 hours (Tr. 22).
When evaluating whether a claimant can return to past work, the ALJ “must
specifically set forth the claimant’s limitations, both physical and mental, and
determine how those limitations affect the claimant’s residual functional capacity. The
ALJ must also make explicit findings regarding the actual physical and mental
demands of the claimant’s past work. Then, the ALJ should compare the claimant’s
residual functional capacity with the actual demands of the past work to determine
whether the claimant is capable of performing the relevant tasks. A conclusory
determination that a claimant can perform past work without these findings, does not
constitute substantial evidence that the claimant is able to return to his past work.”

12

The ALJ found that Martin is unable to perform his other past relevant work
because “[t]he vocational expert also testified that claimant’s past relevant work as
a cook was light semiskilled as generally performed, but medium as performed;
janitorial, medium semiskilled; construction worker II, very heavy skilled;
construction, heavy semiskilled; and roofer, medium skilled.” (Tr. 27)
13

Martin further states in an affidavit submitted to the Appeals Council that he
also had to reach overhead with both arms to place each pair of jeans into the press
(Tr. 429) Because Martin’s RFC limits him to occasional overhead reaching with the
left upper extremity, this factor would also prevent him from returning to his past
work as a press operator.
-28-

Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997) (quoting Groeper v. Sullivan, 932
F.2dI234, 1238-39 (8th Cir. 1991)).
During the hearing in the present case, the ALJ made only a cursory inquiry
regarding the actual demands of the press operator job. He asked Martin what the job
entailed, and was told that it involved “[p]ressing 2,500 pairs of blue jeans a night.”
(Tr. 464) “So you were standing and using [a] machine?” the ALJ asked next (id.)
Martin responded in the affirmative, and there were no further questions. No mention
was made of Martin’s written responses regarding the physical demands of the press
operator job either at the hearing or in the ALJ’s decision. When asked to characterize
Martin’s past work, the vocational expert (VE) simply responded that “[p]ress
operator is in the DOT [Dictionary of Occupational Titles (4th ed. 1991)] as light and
two, unskilled.” (Tr.467)
I find there is not substantial evidence to support the ALJ’s determination that
Martin is capable of returning to his past work as a press operator. To the contrary,
I find that Martin has carried his burden of proof at step four. I will next consider the
ALJ’s alternative finding at step five of the evaluation process that Martin has the
capacity to perform other work.
C. Step Five
The ALJ found at step five of the evaluation process that “even if it were
assumed for the purposes of this decision the claimant was incapable of performing
past relevant work, the vocational expert testified there are jobs existing in significant
numbers in the national economy that the claimant could perform.” (Tr. 27) More
specifically, the ALJ stated:
I asked the vocational expert whether jobs exist in the national
economy for an individual with the claimant’s age, education, work
experience and residual functional capacity. The vocational expert was
asked to assume an individual who can lift and carry 20 pounds
-29-

occasionally and 10 pounds frequently; who can stand and/or walk 6 of
8 hours; who can occasionally climb stairs, balance, stoop, kneel, crouch,
and crawl; who must never climb ropes, scaffolds, ladders; who must
avoid concentrated exposure to vibration and hazards; and who can
occasionally reach overhead with the left upper extremity. The
vocational expert testified that given all of these factors the individual
could perform the claimant’s past relevant work as a press operator only.
Ms. Najarian [the VE] also identified other work such an individual
could perform such as Meat Cutter, Dictionary of Occupational Titles
(DOT) 525.687-070, light unskilled, with 285 such positions existing
in the state economy and 79,134 nationwide; Hand Packer, DOT
920.687-042, light unskilled, with 1,465 positions existing in the state
economy and 128,833 nationally; and Solderer-Assembler, DOT
813.684-022, light unskilled, with 596 such positions available in the
state economy and 62,379 nationwide.
(Tr. 27)
“Testimony from a vocational expert is substantial evidence only when the
testimony is based on a correctly phrased hypothetical question that captures the
concrete consequences of a claimant’s deficiencies.” Cox v. Astrue, 495 F.3d 614, 620
(8th Cir. 2007). Martin claims the hypothetical question was incomplete because it
did not include five additional limitations suggested by the medical evidence. I find
no merit to these claims.
First, Martin points to a statement contained in a hospital discharge summary
dated November 13, 2004, immediately following his back surgery, in which Dr.
Tomes instructed Martin to “limit his bending and twisting . . . as much as he can.”
(Tr. 249) This restriction, however, pertained only to a 4-week period following
Martin’s discharge from the hospital.14 The ALJ’s decision states that “[t]he functional

14

Dr. Tomes’ full statement was as follows: “The patient was discharged to
home on November 13, 2004. He will follow up in my clinic in approximately four
weeks. In the meantime he should limit his bending and twisting at the waistline as
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limitations imposed at the time of surgery discharge in November, 2004 (Exhibit 15F,
p. 8) are afforded significant weight at least for the time period assessed.” (Tr. 26)
Second, Martin relies upon statements made by Gary Nielsen, a chiropractor
who provided treatment between July 30 and September 10, 2004, that “[c]arrying
anything less than ten pounds would be appropriate” but “[l]ifting is out of the
question.” (Tr. 297) This assessment was made when “[t]est results indicate[d]
considerable lumbar sprain and strain with associated low back, sacral or ilium
subuxations. Possible disc problems or nerve root compressions as well may be
indicated.” (Id.) Once Martin decided to have surgery on his lower back he did not
continue the chiropractic treatment (Tr. 298).
Third, Martin relies upon another statement made by chiropractor Nieslen that
“[b]ending would be inappropriate for his low back.” (Tr. 297) Again, this opinion
concerned Martin’s condition prior to back surgery.
Fourth, Martin notes that in a report of a psychological evaluation prepared on
June 10, 2002, in connection with his first claim for benefits, the diagnosis included
“Rule Out Reading Disorder, based on reported educational history” and “Rule Out
Arithmetic Disorder, based on reported educational history” (Tr. 188). The report
indicated that Martin “receive[d] special education assistance for reading and
arithmetic.” (Tr. 185) Martin claims the ALJ should have investigated further before
instructing the VE to assume a tenth grade education. I disagree. “While an ALJ does
have a duty to develop the record, this duty is not never-ending and an ALJ is not
required to disprove every possible impairment.” McCoy v. Astrue, 648 F.3d 605,
2011 WL 3330504, at *5 (8th Cir. 2011).
Fifth, and finally, Martin notes that the 2002 psychological evaluation report
also states that “[u]nder episodes of stress, Martin is likely to become irritable and
much as he can.” (Tr. 249 (emphasis supplied))
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angry.” (Tr. 187). However the psychologist found “no restrictions with regard to
activities of daily living” and stated that “[s]ocial functioning is well intact.” (Id.) The
report also states: “Sustained attention and concentration were adequate today and
there appears to be no problem with short-term memory or his ability to carry out
instructions under supervision. Relating to coworkers and supervisors would seem
to be appropriate. Adapting to change is also possible.” (Id.)
“The ALJ’s hypothetical question to the vocational expert needs to include only
those impairments that the ALJ finds are substantially supported by the record as a
whole.” Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (quoting Lacroix v.
Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)). “The ALJ’s hypothetical question
included all of [Martin’s] limitations found to exist by the ALJ and set forth in the
ALJ’s description of [Martin’s] RFC.” Id. Because “the ALJ’s findings of [Martin’s]
RFC are supported by substantial evidence, . . . [t]he hypothetical question was
therefore proper, and the VE’s answer constituted substantial evidence supporting the
Commissioner’s denial of benefits.” Id. (quoting Lacroix, 465 F.3d at 889).

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III. Conclusion
Accordingly, I conclude that the ALJ’s decision is supported by substantial
evidence on the record as a whole and is not contrary to law.
IT IS ORDERED that the decision of the Commissioner is affirmed pursuant
to sentence four of 42 U.S.C. § 405(g). Final judgment will be entered by separate
document.
September 21, 2011.

BY THE COURT:

Richard G. Kopf
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility
for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work
or directs the user to some other site does not affect the opinion of the court.

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