Smith v. Social Security Administration

Filing 15

MEMORANDUM OPINION AND ORDER dismissing Smith's complaint; and denying all requested relief. Judgment will be entered for the Commissioner. Signed by Magistrate Judge Patricia S. Harris on 7/13/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION

ELMER SMITH

PLAINTIFF

v.

NO. 1:16-cv-00150 PSH

NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Elmer Smith (“Smith”) began this case by filing a complaint pursuant to
42 U.S.C. 405(g). In the complaint, he challenged the final decision of the Acting
Commissioner of the Social Security Administration (“Commissioner”), a decision based
upon findings made by an Administrative Law Judge (“ALJ”).
Smith maintains that the ALJ’s findings are not supported by substantial evidence
on the record as a whole.1 It is Smith’s contention that his residual functional capacity
was erroneously assessed. He so maintains for the following three reasons: 1) the record
does not contain a physical or mental residual functional capacity assessment from a
treating or examining physician, 2) there is nothing to support the ALJ’s finding that
Smith is capable of performing the standing and walking requirements of light work,
and 3) Smith has greater mental limitations than the ALJ found.

The question for the Court is whether the ALJ’s findings are supported by substantial evidence
on the record as a whole. “Substantial evidence means less than a preponderance but enough that a
reasonable person would find it adequate to support the decision.” See Boettcher v. Astrue, 652 F.3d
860, 863 (8th Cir. 2011).
1

The ALJ is required to assess the claimant’s residual functional capacity, which
is a determination of “the most a person can do despite that person’s limitations.” See
Brown v. Barnhart, 390 F.3d 535, 538-39 (8th Cir. 2004). The assessment is made using
all of the relevant evidence in the record, but the assessment must be supported by
some medical evidence. See Wildman v. Astrue, 596 F.3d 959 (8th Cir. 2010). As a part
of making the assessment, the ALJ must evaluate the claimant’s subjective complaints.
See Pearsall v. Massanari, 274 F.3d 1211 (8th Cir. 2001). The ALJ does so by considering
the medical evidence and evidence of the claimant's daily activities; the duration,
frequency, and intensity of his pain; the dosage and effectiveness of his medication;
precipitating and aggravating factors; and functional restrictions. See Id. at 1218 [citing
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984)].
Smith alleged in his applications for disability insurance benefits and
supplemental security income payments that he became disabled beginning on May 8,
2013. He alleged that he became disabled beginning on that date as a result of
impairments that include depression, diabetes, neuropathy, hypertension, joint pain,
right knee surgery, back pain, headaches, blurred vision, osteoarthritis, and
degenerative disc disease. He ably summarized the testimonial, documentary, medical,
and psychological evidence in the record, see Document 13 at CM/ECF 2-18, and the
Commissioner did not challenge the summary or otherwise place any of it in dispute.
The Court accepts the summary as a fair summation of all the evidence. The summary
will not be reproduced, save to note several matters germane to the issues raised in
the parties’ briefs.

2 

On January 9, 2012, or approximately sixteen months before the alleged onset
date, Smith was seen by Dr. Michael Spataro, M.D., (“Spataro”) for a consultative
examination.

See

Transcript

at

363-367.

Spataro

assessed

Smith’s

mental

status/psychiatric condition and found nothing remarkable. Spataro performed a
physical examination and found evidence to substantiate Smith’s complaints of pain in
his shoulders, lower back, hips, knees, and feet. Spataro offered the following opinions
regarding Smith’s ability to perform work-related activities:
Based on today’s examination, I believe the claimant has mild to
moderate limitations to sit, walk, and stand for a full workday secondary
to chronic lower back pain, hip pain, knee pain, and foot pain. He has
mild to moderate limitations to routinely lift and carry heavy objects
secondary to same, as well as intermittent neck pain and shoulder pain
bilaterally. There are no limitations to hold a conversation and respond
appropriately to questions. There are no limitations to carry out and
remember instructions. ...
See Transcript at 366.
Between October 12, 2012, and July 18, 2015, Smith was seen at the White River
Medical Center on what appears to have been approximately sixteen occasions. See
Transcript at 459-493 (10/12/2012-10/13/2012), 494-499 (12/09/2012), 506-510
(01/24/2013), 516-521 (04/14/2013), 528-535 (05/16/2013), 543-548 (05/19/2013),
550-558 (06/13/2013), 561-564 (10/03/2013), 369-379, 570-586 (10/31/201311/04/2013), 621-624 (04/30/2014), 827-832 (06/21/2014), 1032-1034 (11/11/2014),
987-992 (06/15/2015), 1040-1044 (07/05/2015), 1104-1108 (07/18/2015), 1099-1102
(10/08/2015). He was seen for complaints that included abdominal pain, elevated blood
sugar, hallucinations, low back pain, headaches, right arm numbness, suicidal thoughts,
dizziness, and leg pain.
3 

The White River Medical Center progress notes reflect, inter alia, that a CT scan
of Smith’s lumbar spine was performed on June 13, 2013, after he injured his back in a
fall. See Transcript at 558. The results of the testing revealed arthritic changes with
small disc bulges at the L3-4 and L5-S1 levels.
Smith was hospitalized at the White River Medical Center from October 31, 2013,
through November 4, 2013, after experiencing thoughts of suicide. See Transcript at
369-379, 570-586. A medical history was compiled and included the following selfreports and observations:
... [Smith] has had depression for some time now. He has multiple
medical problems, including diabetes, chronic pain, osteoarthritis,
degenerative disc disease, and neuropathy. At this time, he is unable to
work, which has definitely made his mood worse. He expresses some
hopelessness and helplessness. He is on a variety of different medications,
and treatment of his pain has been complicated. Thankfully, he has not
used opioid medications, and so this is not an issue; however, he would
like to get some relief from his pain. He would certainly like to go back to
work. He has not been able to get disability. He is currently taking aspirin,
lisinopril, metformin and insulin; diclofenac for pain, amitriptyline for
pain, Naprosyn for pain; simvastatin and fluoxetine.
See Transcript at 370. Dr. James Stanley, M.D., (“Stanley”) assessed Smith’s mental
status/psychiatric condition and observed that he was alert and fully oriented and
exhibited a depressed mood, a congruent affect, and a goal-directed and logical
thought process. Stanley observed that Smith “appear[ed] to function within the broad
limits of average” cognitive ability. See Transcript at 371. Stanley additionally observed
that Smith’s gait was within normal limits. Stanley diagnosed, inter alia, a major
depressive disorder. Stanley continued Smith’s medication, advised him to follow-up
with his primary care physician, and advised him seek mental health treatment.

4 

Smith presented to the White River Medical Center on April 30, 2014, complaining
of back pain. See Transcript at 621-624. He reported that he had been experiencing
pain for several years, and it was becoming progressively worse. He reported that it
was not controlled with rest, activity modification, or medication. He reported that
aggravating factors included walking and standing. Dr. Meraj Siddiqui, M.D.,
(“Siddiqui”) nevertheless observed that Smith had a normal gait and station and
exhibited normal muscle strength and tone in his extremities. Siddiqui did observe,
though, that palpation and hyperextension of Smith’s lumbar facet joints produced low
back pain. Siddiqui diagnosed back pain and recommended, inter alia, lumbar medial
branch blocks.
Smith presented to the White River Medical Center on June 15, 2015, complaining
of lower extremity pain. See Transcript at 987-992. Upon physical examination, he was
found to have a normal range of motion in his extremities and no neurologic
abnormalities. Testing revealed mild soft tissue swelling in his left leg.
Smith presented to the White River Medical Center on October 8, 2015, for
continued complaints of back pain. See Transcript at 1099-1102. Smith reported that
his medication included meloxicam, gabapentin, and Flexeril, and the medication had
“helped some.” See Transcript at 1099. Dr. Neeraj Kumar, M.D., (“Kumar”) observed
that Smith had pain with palpation of the lumbar facet joints at L3-L4, L4-L5, and L5S1. Kumar diagnosed, inter alia, “[l]umbosacral spondylosis without myelopathy,”
lumbago, and chronic pain syndrome. See Transcript at 1101. His recommendations
included lumbar medial branch blocks. Kumar started Smith on Tramadol, changed the
Flexeril to tizanidine, but otherwise continued him on his medication.

5 

Between November 7, 2013, and March 11, 2014, Smith was seen at Health
Resources of Arkansas on what appears to have been approximately seven occasions.
See Transcript at 645-650 (10/31/2013), 644 (11/07/2013), 638-643 (11/12/2013), 635637 (11/27/2013), 634 (01/06/2014), 633 (01/21/2014), 631-632 (03/11/2014). The
progress notes reflect that he repeatedly reported a depressed mood, feelings of
worthlessness because he could not work, and, at times, suicidal ideations. He reported
that he had trouble sleeping and maintaining concentration. He also reported becoming
angry over small things. A major depressive disorder was diagnosed on at least three
occasions, and it appears that he was taking Prozac and amitriptyline during that period
of time for his symptoms, see Transcript at 640, 644.
Between February 19, 2014, and June 16, 2015, Smith sought treatment for his
leg problems on what appears to have been approximately four occasions at the Medical
Park Orthopaedic Clinic. See Transcript at 445-448 (02/19/2014) 449-452 (02/24/2014),
453-455 (02/27/2014), 1036-1038 (06/16/2015). An MRI revealed a right medial
meniscus tear, and surgery was performed on February 27, 2014, to repair the tear.
When he presented on June 16, 2015, a ruptured tendon in his left leg was diagnosed,
and he was prescribed a walking boot.
Between April 30, 2014, and July 6, 2015, Smith was seen at the Oak Park Medical
Office on what appears to have been approximately six occasions. See Transcript at
678-682 (04/30/2014), 976-979 (05/21/2014), 944-948 (10/21/2014), 1077-1081
(11/18/2014), 1085-1087 (06/17/2015), 1091-1093 (07/06/2015). He was seen for
complaints that included depression; chest, back, and hand pain; anxiety; headaches;
abdominal pain; and problems related to his diabetes.

6 

The Oak Park Medical Office notes reflect, inter alia, that when Smith was seen
on April 30, 2014, a musculoskeletal examination produced largely normal findings. See
Transcript at 678-682. He had normal strength and tone in his lower extremities, his
gait was normal, and he was able to stand without difficulty. A mental status
examination revealed that he was oriented to person, place, and time; his memory was
intact; and his attention and concentration were within normal limits.
On May 21, 2014, an Oak Park Medical Office advanced practice registered nurse
(“APRN”) completed a migraine headache form on behalf of Smith. See Transcript at
653. Smith reported having daily headaches for two to three hours in duration but
reported good results with ibuprofen. The APRN did note, though, that Smith had never
been treated for headaches at the Oak Park Medical Office.
Smith was last seen at the Oak Park Medical Office on July 6, 2015. See Transcript
at 1091-1093. A musculoskeletal examination revealed tenderness to palpation in his
spine, but he nevertheless had a full range of motion and normal strength and tone. He
had diffuse tenderness to palpation in his lower left extremity, and mild pain was
elicited on palpation of his left leg calf. A mental status examination was unremarkable.
An assessment of Smith’s physical residual functional capacity was made by two
state agency physicians, Dr. Ronald Davis, M.D., (“Davis”), see Transcript at 101-104,
121-124, and Dr. Lucy Sauer, M.D., (“Sauer”), see Transcript at 145-147, 166-168. They
opined that Smith is capable of, inter alia, lifting and/or carrying twenty pounds
frequently and ten pounds occasionally. They also opined that he is capable of standing,
walking, and sitting for about six hours in an eight hour workday but has limitations in
his ability to push and pull with his lower extremities because of his knee surgery.

7 

An assessment of Smith’s mental residual functional capacity was made by two
state agency physicians, Dr. Jon Etienne Mourot, Ph.D., (“Mourot”), see Transcript at
104-106, 124-126, and Dr. Susan Daugherty, Ph.D., (“Daugherty”), see Transcript at
147-149, 168-170. They agreed that Smith has moderate limitations caused by
depression and anxiety but is capable of performing simple, repetitive one to two step
tasks with limited public or interpersonal contact.
The record contains a history of Smith’s reportable earnings for the years 1980
through 2015. See Transcript at 264-267. The history reflects that he had reportable
earnings through 2010, although he testified during the administrative hearing that he
had self-employment earnings through 2013. See Transcript at 43-44.
Smith and his wife completed a series of documents in connection with his
applications for disability insurance benefits and supplemental security income
payments. See Transcript at 281-292, 293-302, 303-305, 306-313, 314-315, 321-327,
350-351. In the documents, it was represented that he was taking prescription and overthe-counter medication for insomnia, stomach problems, back and knee pain, diabetes,
hypertension, neuropathy, depression, and high cholesterol. He represented that he
can attend to his own personal care but cannot prepare meals or perform any house or
yard work. Smith has trouble getting around, has no hobbies or interests, and does not
engage in social activities. He prefers to be left alone and typically spends the day by
himself. A typical day consists of getting dressed, taking his medication, eating his
meals, watching television, and resting. He can lift between fifteen to twenty pounds
and can walk for about ten minutes before the pain in his knees becomes so severe that
he must stop and rest.

8 

Smith testified during the administrative hearing. See Transcript at 41-56. He
was born on October 25, 1967, and was forty-seven years old at the time of the hearing.
He took special education classes in school and only completed the sixth grade. He
cannot read or write but can do basic mathematics. He took insulin for his diabetes,
which helped treat the impairment, but he stopped taking the medication when his
health insurance was cancelled. Without the insulin, he becomes forgetful and loses
track of things. Smith experiences neuropathy, which causes his hands and feet to hurt.
He can be on his feet for about an hour before he experiences pain. He also experiences
pain in his back, pain he attributed to arthritis.
The ALJ found at step two that Smith has severe impairments in the form of
“diabetes mellitus, obstructive sleep apnea, residual of right knee surgery,
hypertension, obesity, periodic limb movement disorder, anxiety, and depression.” See
Transcript at 14. The ALJ assessed Smith’s residual functional capacity and found that
he can perform “less than the full range of light work ...” See Transcript at 24. The ALJ
found that Smith’s impairments cause the following additional limitations:
... The claimant can occasionally stoop, kneel, crouch, and crawl. He
cannot work around hazards such as unprotected heights or dangerous
machinery. He is limited to performing simple, routine tasks. He is limited
to incidental interpersonal contact. He can tolerate only occasional
changes in a routine work setting.
See Transcript at 24. In making the foregoing findings, the ALJ gave great weight to the
opinions offered by Nix, Davis, Sauer, Mourot, and Daugherty. The ALJ found at step
four that Smith cannot return to his past relevant work but found at step five that there
was other work he can perform.

9 

Smith has limitations caused primarily by back pain, knee pain, and depression.
The question for the ALJ was the extent to which the limitations impact the most Smith
can do. The ALJ incorporated limitations for the impairments into the assessment of
Smith’s residual functional capacity but found that he was not disabled for purposes of
the Social Security Act. The ALJ could find as he did because substantial evidence on
the record as a whole supports his consideration of the evidence and his assessment of
Smith’s residual functional capacity. The Court so finds for three reasons.
First, the ALJ adequately considered the medical evidence relevant to Smith’s
physical limitations. For instance, the ALJ noted the results of the June 13, 2013, CT
scan which revealed arthritic changes in Smith’s back with small disc bulges at L3-4 and
L5-S1. The ALJ noted that Smith underwent surgery on February 27, 2014, to repair a
right medial meniscus tear, and Smith reported at a follow-up examination that he was
“doing better” but was still experiencing some pain. See Transcript at 682. The ALJ
also noted Siddiqui’s observations during the April 30, 2014, examination, observations
that Smith had a normal gait and station, normal muscle strength and tone in his upper
and lower extremities, but palpation and hyperextension of the lumbar facet joints
produced low back pain. The ALJ noted the findings of the June 15, 2015, emergency
room examination, findings the ALJ could and did characterize as “largely normal.” See
Transcript at 26. The findings reflect that Smith had a normal range of motion in his
extremities and no neurologic abnormalities. Testing did reveal, though, mild soft
tissue swelling in his left leg. When Smith presented to the Medical Park Orthopaedic
Clinic on June 16, 2015, a ruptured tendon in his left leg was diagnosed, and he was
prescribed a walking boot.

10 

Clearly, Smith has mild to moderate degenerative joint disease. When he was
seen at the Oak Park Medical Office on April 30, 2014, though, a musculoskeletal
examination produced largely normal findings. Specifically, he had normal strength and
tone in his lower extremities, his gait was normal, and he was able to stand without
difficulty. When Smith was seen on July 6, 2015, a musculoskeletal examination
revealed tenderness to palpation in his spine and diffuse tenderness to palpation in his
lower left extremity. Nevertheless, he exhibited a full range of motion and normal
strength and tone.
Second, the ALJ adequately considered the medical evidence relevant to Smith’s
mental limitations. For instance, the ALJ noted that Smith sought medical attention for
suicidal ideations during 2013 and 2014. The ALJ could and did find, though, that
Smith’s mental and/or cognitive functioning eventually improved, particularly after a
five day hospitalization.2 When Smith was discharged after the five day hospitalization,
Stanley observed that Smith was alert and fully oriented, had a congruent affect, a
goal-directed and logical thought process, but manifested a depressed mood. Stanley
additionally observed that Smith “appear[ed] to function within the broad limits of
average” cognitive ability. See Transcript at 371. When Smith was seen at the Oak Park
Medical Office on April 30, 2014, a mental status examination revealed that he was
oriented to person, place, and time; his memory was intact; and his attention and
concentration were within normal limits. When he was seen at the Oak Park Medical
Office on July 6, 2015, a mental status examination revealed unremarkable findings.

2

“Because  individuals  with  a  mental  illness  may  experience  periods  during  which  they  are  relatively 
symptom‐free,” the Court recognizes that “their level of functioning can vary significantly over time.” See Mabry v. 
Colvin, 815 F.3d 386, 392 (8th Cir. 2016). 

11 

Third, the ALJ adequately considered the non-medical evidence relevant to
Smith’s physical and mental limitations. For instance, the ALJ considered Smith’s daily
activities. Although Smith can attend to his own personal care and represented he can
lift between fifteen to twenty pounds, he cannot prepare meals or perform any house
or yard work. He has trouble getting around, has no hobbies or interests, and does not
engage in social activities. He prefers to be left alone and typically spends the day by
himself. There is little evidence, though, to support such an extreme limitation of his
activities. It is conceivable that the limitation of his activities is the product of a
personal choice and not the result of his impairments.
Smith takes prescription medication for his pain, and lumbar medial branch
blocks have been recommended. Although he reported having severe headaches, he
rarely sought treatment for them and reported having good results with ibuprofen. He
takes prescription medication for his depression and anxiety, medication that has
included Prozac, and he appears to have gained some benefit from the medication.
The ALJ gave little mention to the remaining Polaski v. Heckler factors, but his
failure to give greater consideration to those factors does not warrant a remand. The
evidence relevant to the factors is minimal.
Smith challenges the assessment of his residual functional capacity because the
record does not contain a physical or mental residual functional capacity assessment
from a treating or examining physician. Although it is true that there is no such
assessment, a remand is not warranted.  “[T]here is no requirement that a [residual
functional capacity] finding be supported by a specific medical opinion,” see Hensley
v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016), and the record in this case contains ample

12 

evidence for the ALJ to have made an informed decision. Specifically, the ALJ could
and did rely upon the findings and observations of the medical professionals during their
examinations of Smith. The ALJ could and did also rely to some extent upon the opinions
of the state agency physicians, who opined that Smith is capable of standing, walking,
and sitting for about six hours in an eight hour workday and is capable of performing
simple, repetitive one to two step tasks with limited public or interpersonal contact.
Smith challenges the assessment of his residual functional capacity because
there is no evidence he is capable of satisfying the standing and walking requirements
of light work. The ALJ, though, could find as he did. Smith has back pain, but the
findings and observations of the medical professionals with regard to his gait, station,
range of motion, and muscle strength and tone were largely unremarkable. Moreover,
although the opinions of the state agency physicians are certainly not entitled to great
weight, the ALJ could and did give the opinions some weight. The physicians opined
that Smith is capable of performing the requisite standing and walking.
Smith challenges the assessment of his residual functional capacity because he
has greater mental limitations than the ALJ found. The ALJ, though, could find as he
did. It is true that Smith sought treatment for his mental impairments on several
occasions and was even hospitalized for suicidal ideations. The progress notes from his
examinations at the Oak Park Medical Office, though, contain unremarkable findings.
Moreover, the ALJ could and did rely to some extent upon the opinions of Mourot and
Daugherty, both of whom opined that Smith has moderate limitations caused by
depression and anxiety but is capable of performing simple, repetitive one to two step
tasks with limited public or interpersonal contact.

13 

The governing standard in this case, i.e., substantial evidence on the record as
a whole, allows for the possibility of drawing two inconsistent conclusions; it therefore
embodies a zone of choice within which the ALJ may decide to grant or deny benefits
without being subject to reversal. See Culbertson v. Shalala, 30 F.3d 934 (8th Cir. 1994).
In this instance, the ALJ’s assessment of Smith’s residual functional capacity was within
the zone of choice, and the ALJ could properly find as he did.
Smith offers a second reason why the ALJ’s findings are not supported by
substantial evidence on the record as a whole. Smith maintains that the record was not
fully developed with respect to his illiteracy. The Court cannot agree as the record
contains sufficient information for the ALJ to have made an informed decision.3 The
ALJ considered Smith’s education and found that he has a sixth grade education with
some special education classes, i.e., he has a “marginal education.” The ALJ’s finding
is consistent with the record. Moreover, it is worth noting that Stanley observed Smith
to be functioning within the broad limits of average cognitive ability. Although Smith
has limitations caused by his education, the ALJ accounted for those limitations by
restricting Smith to tasks that are simple and routine, involve “incidental interpersonal
contact,” and involve “only occasional changes in a routine work setting.”
On the basis of the foregoing, the Court finds that there is substantial evidence
on the record as a whole to support the ALJ’s findings. Smith’s complaint is dismissed,
all requested relief is denied, and judgment will be entered for the Commissioner.

3

Error! Main Document Only.The ALJ has an obligation to fully develop the record, even if the claimant is 
represented by counsel. See Battles v. Shalala, 36 F.3d 43 (8th Cir. 1994). There is no bright line test for determining 
whether the ALJ fully developed the record; the determination is made on a case by case basis. See Id. It involves 
examining whether the record contains sufficient information for the ALJ to have made an informed decision. See 
Pratt v. Astrue, 372 Fed.Appx. 681 (8th Cir. 2010). 

14 

IT IS SO ORDERED this 13th day of July, 2017.

________________________________________
UNITED STATES MAGISTRATE JUDGE

15