Shelton v. Social Security Administration, No. 4:2017cv00061 - Document 15 (E.D. Ark. 2018)
Court Description: RECOMMENDED DISPOSITION: The undersigned magistrate judge recommends affirming the decision of the Commissioner. Objections to these findings and recommendations are due no later than 14 days from the date of this Order. Signed by Magistrate Judge Patricia S. Harris on 3/7/2018. (mcz)
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Shelton v. Social Security Administration Doc. 15 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION ROY SHELTON PLAINTIFF v. No. 4:17-CV-00061-SWW-PSH NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT RECOMMENDED DISPOSITION INSTRUCTIONS The following Recom m ended Disposition (“Recom m endation”) has been sent to United States District J udge Susan Webber Wright. You m ay file written objections to all or part of this Recom m endation. If you do so, those objections m ust: (1) specifically explain the factual and/ or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recom m endation. By not objecting, you m ay waive the right to appeal questions of fact. REASONING FOR RECOMMENDED DISPOSITION Roy Shelton applied for social security disability benefits with an alleged disability onset date of March 15, 1995. (R. at 60 ). After a hearing, the adm inistrative law judge (ALJ ) denied his application. (R. at 20 ). The Appeals Council denied Shelton’s request for review. (R. at 1). The ALJ ’s decision now stands as the Com m issioner’s final decision, and Shelton has requested judicial review. For the reasons stated below, the m agistrate judge recom m ends affirm ing the Com m issioner’s decision. I. The Commissioner’s Decision Dockets.Justia.com The ALJ found that Shelton had the severe im pairm ents of degenerative disk disease of the lum bar spine, osteoarthritis, and adjustm ent disorder with m ixed depression and anxiety. (R. at 11). As a result of the im pairm ents, the ALJ determ ined that Shelton had the residual functional capacity (RFC) to perform light work, with the additional lim itations that he could not clim b ladders, ropes, or scaffolds; could only occasionally clim b ram ps or stairs, kneel, crawl, crouch, stoop, or balance; could not have exposure to unprotected heights or control or operate foot controls with his left lower extrem ity; could only perform work that allows for the use of a cane as needed to access the workstation; would be lim ited to unskilled duties where interpersonal contact is incidental to the work perform ed; could perform work where the com plexity of one to two step tasks would be learned and perform ed with few variables and little judgm ent by rote; required supervision that is sim ple, direct, and concrete; and would be lim ited to SVP 1 or 2 jobs that can be learned within 30 days. (R. at 13– 14). Shelton had no past relevant work. (R. at 17). The ALJ took testim ony from a vocational expert (VE) and determ ined that Shelton could perform jobs such as furniture rental consultant or photocopy m achine operator. (R. at 19– 20 ). The ALJ therefore held that Shelton was not disabled. (R. at 20 ). II. Summary of Medical Evidence Shelton was diagnosed with m inim al osteoarthritis in the right hip via radiography on February 3, 20 12. (R. at 299). An MRI in March 20 13 showed degenerative disk disease of the lum bar spine with herniated nucleus pulposus and neural foram inal stenosis. (R. at 24). He received a lum bar interlam inar epidural injection for radiculopathy and back pain. (R. at 24). Consultative exam iner Garry Stewart, M.D. found norm al range of m otion, norm al reflexes, negative bilateral straight leg raise test, norm al grip strength, norm al gait, and norm al lim b function. (R. at 30 3– 0 4). Dr. Stewart found no lim itations. (R. at 30 4– 0 5). A Novem ber 20 13 MRI found m inim al disk bulge at L2– L3 and L3– L4; m ild disk osteophyte bulge at L4– L5; and grade 1 anterolisthesis of L5 on S1 with left foram inal disk protrusion/ extrusion abutting the left S1 nerve root, m oderate left and m ild right facet hypertrophy, and m oderate left neural foram inal narrowing. (R. at 318– 19). An EMG in Decem ber 20 13 showed positive sharp waves at m ultiple levels in the left lum bar paraspinal m usculature, consistent with left lower lum ber radiculopathy. (R. at 327). Shelton did not seek treatm ent for 15 m onths, but did establish care with a new provider in March 20 15. (R. at 385). He complained of a cyst, back pain, and interm ittent bloody diarrhea. (R. at 385). He stated that injections for his back pain had not been com pletely effective. (R. at 385). He had tenderness on palpation in the lum bosacral spine, but a straight leg raising test was negative. (R. at 387). He presented in April 20 15 for back pain radiating to the left foot that was aggravated by bending and repetitive lifting and also com plained of fatigue, arthralgias, and m yalgias. (R. at 366). He displayed slow gait, decreased range of m otion in the lum bar spine, and pain with range of m otion in the lum bar spine. (R. at 367). In May 20 15, he reported pain in both hips, shooting pain in the right leg, and had begun using a cane to am bulate. (R. at 360 ). He continued to show slow gait, decreased range of m otion in the lum bar spine, and pain with range of m otion in the lum bar spine. (R. at 361). A new MRI revealed m ild degenerative changes of the lower lum bar spine with no neural com pressive lesion identified. (R. at 373). In J une 20 15, Shelton presented for exam ination concerning com plaints of chest pain. (R. at 452). It was planned that he would have an EKG for ischem ia evaluation. (R. at 454). On J uly 8, 20 15, Shelton had a norm al EKG. (R. at 450 ). He received an epidural steroid injection on J uly 28, 20 15. (R. at 455). Concerning m ental im pairm ents, during discharge from prison, Shelton underwent a psychological exam ination and was diagnosed with depressive disorder, NOS, and polysubstance abuse in rem ission. (R. at 246). J ohn Faucett, Ph.D. perform ed a consultative exam ination in J uly 20 13. (R. at 30 9). Dr. Faucett diagnosed adjustm ent disorder with m ixed anxiety and depressed m ood. (R. at 312). Dr. Faucett reported that Shelton could com m unicate and interact in a socially adequate m anner, could com m unicate in an intelligible and effective m anner, could cope with the m ental/ cognitive demands of basic work-like tasks, could adequately attend to and sustain concentration on tasks, could sustain persistence in com pleting tasks, and could com plete work-like tasks in an acceptable tim efram e. (R. at 313). In Septem ber 20 13, Shelton took a PHQ-9, which suggested severe depression. (R. at 341– 42). There is no record of Shelton seeking m ental health treatm ent after this date, though he stated he still had anxiety, depression, and sleep disturbances in J uly 20 15. (R. at 453). III. Discussion The Court reviews to determ ine whether substantial evidence on the record as a whole exists to support the ALJ ’s denial of benefits. Long v. Chater, 10 8 F.3d 185, 187 (8th Cir. 1997). “Substantial evidence” exists where a reasonable m ind would find the evidence adequate to support the ALJ ’s decision. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 20 0 9). The Court will not reverse m erely because substantial evidence also supports a contrary conclusion. Long, 10 8 F.3d at 187. Shelton argues that the ALJ erred in assessing his RFC, did not perform a proper credibility analysis and erroneously discredited him based on a fifteen-m onth treatm ent gap, im properly relied on contradictory evidence, and failed to properly consider the grids. a. The RFC Determination Shelton first argues that the ALJ erred in finding him capable of perform ing the full range of light work. He contends that the m edical records support additional lim itations that the ALJ should have included. Initially, Shelton is m istaken. The ALJ included several additional postural and m ental lim itations in the RFC. Nevertheless, Shelton argues that his back im pairm ent prevents him from engaging in the significant walking and standing that is required to perform light work. This argum ent still fails, however. The record contains no lim itations on the ability to walk or stand from a physician. The only opinion offered by an exam ining physician proposed no lim itations on the ability to stand or walk. (R. at 30 5). Furtherm ore, Shelton’s physician, Brian Blair, M.D., did not see a need to prescribe pain m edication. (R. at 362, 373). There is sim ply no objective evidence to show that Shelton has greater lim itations in his ability to walk or stand than the ALJ found and—for reasons stated below—the ALJ justifiably did not rely on Shelton’s subjective com plaints. b. The Credibility Determination Shelton next argues that the ALJ erred in finding his allegations of disabling pain not entirely credible. He particularly objects to the degree of consideration the ALJ gave to the fifteen-m onth gap in treatm ent, contending that his testim ony sufficiently explained the treatm ent gap. The Court defers to the ALJ ’s credibility determ ination when it is supported by good reason and substantial evidence. Turpin v. Colvin, 750 F.3d 989, 993 (8th Cir. 20 14). The ALJ m ust consider “(1) the claim ant's daily activities; (2) the duration and intensity of the pain; (3) the precipitating and aggravating factors; (4) dosage, effectiveness and side effects of m edication; (5) functional restrictions.” Miller v. Sullivan, 953 F,2d 417, 420 (8th Cir. 1992) (citing Polaski v. Heckler, 739 F.2d 1320 , 1322 (8th Cir. 1984). The ALJ need not specifically address each factor. Strongson v. Barnhart, 361 F.3d 10 66, 10 72 (8th Cir. 20 0 4). Multiple factors weigh against Shelton’s credibility. As noted above, Dr. Blair saw no need to prescribe pain m edication. (R. at 362, 373). Dr. Stewart found none of the lim itations that Shelton claim ed. (R. at 30 4– 0 5). It is true that Shelton testified that he had insurance problem s; however, his testim ony was specifically that he could not find a m ental health provider to take QualChoice but had recently switched to Blue Cross and was about to see som eone for depression and anxiety. (R. at 35). This does not explain the treatm ent gap concerning his back pain, and a failure to seek treatm ent weighs against a claim ant’s credibility. Milam v. Colvin, 794 F.3d 978, 985 (8th Cir. 20 15). Shelton also objects to the ALJ ’s discrediting of lay witness statem ents. (R. at 50 – 58, 20 3– 0 5). The ALJ found these statem ents were likely colored by affection for Shelton and that the witnesses had no m edical training to assess Shelton’s im pairm ents. (R. at 16). As the Com m issioner correctly notes, such statem ents can be discredited based on the sam e evidence used to discredit the claim ant’s statem ents. Black v. Apfel, 143 F.3d 383, 387 (8th Cir. 1998). As the objective m edical evidence, lack of treatm ent, and other factors weigh against Shelton’s credibility, they equally weigh against these lay witness statem ents. c. Opinion Evidence Shelton further m aintains that the ALJ ’s RFC is unsupported by the opinion evidence because the ALJ assigned little weight to Dr. Stewart’s opinion and the opinions of the State Agency consultants while giving som e weight to Dr. Faucett’s opinion and the lay witness statem ents. (R. at 17– 18). Shelton suggests that if the opinions given som e weight are m ore persuasive than those with little weight there is no way Shelton could be found capable of light work. The ALJ functions to resolve conflicts in the m edical evidence. W agner v. Astrue, 499 F.3d 842, 848 (8th Cir. 20 0 7). The State Agency physicians found Shelton capable of m edium work. (R. at 70 , 82). Dr. Stewart found no lim itations. (R. at 30 4– 0 5). Overall, the ALJ ’s RFC lim itation to a restricted range of light work is extrem ely favorable in light of these opinions. The ALJ reasonably added restrictions based on testim ony and lay witness statem ents, and the undersigned cannot find that the RFC determ ination is unsupported by substantial evidence on the record as a whole d. The Grids Shelton’s final argum ent is that the ALJ should have applied a borderline age category rule when considering the grids. Shelton argues that he would be disabled under the grids if the ALJ had applied the closely approaching advanced age category and found him capable of only sedentary work. Shelton’s argum ent necessarily fails. For the reasons stated above, the RFC determ ination is supported by substantial evidence on the record as a whole. As such, it would m ake no difference whether the ALJ applied the higher age category, as Shelton would still not be found disabled. 20 C.F.R. Pt. 40 4, Subpt. P., App. 2. IV. Recommended Disposition The ALJ properly form ulated the RFC, properly weighed the evidence, perform ed a proper credibility analysis, and properly applied the Medical-Vocational Guidelines. The ALJ ’s decision is supported by substantial evidence on the record as a whole and is not based on legal error. For these reasons, the undersigned m agistrate judge recom m ends AFFIRMING the decision of the Com m issioner. It is so ordered this 7th day of March, 20 18. ________________________________ PATRICIA S. HARRIS UNITED STATES MAGISTRATE J UDGE
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