Shakespear v. Social Security Administration

Filing 14

ORDER affirming the Commissioner's final decision. Signed by Judge Brian S. Miller on 9/28/2011. (jct) (copy forwarded to ALJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
THOMAS BRUCE SHAKESPEAR
v.

PLAINTIFF

CASE NO. 3:10CV00176 BSM

MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY ADMINISTRATION

DEFENDANT

ORDER
Plaintiff Thomas Bruce Shakespear appeals the final decision of the Commissioner
of the Social Security Administration denying his claims for disability insurance benefits and
supplemental security income. Both parties have submitted appeal briefs [Doc. Nos. 12, 13].
The Commissioner’s decision is affirmed because it is supported by substantial evidence.
I. INTRODUCTION
Shakespear applied for disability insurance benefits and supplemental security income
on April 10, 2006, initially based upon disability beginning January 1, 2001. Plaintiff’s Brief
pg. 1. He has amended his onset date of disability to September 15, 2005. Plf.’s Br. pg. 1.
After the initial denial of his application and the denial of his motion for reconsideration,
Shakespear timely filed a hearing request. Id. In his March 26, 2008, decision, the
Administrative Law Judge1 (“ALJ”) concluded that Shakespear had not been under a
disability within the meaning of the Social Security Act because he was capable of
performing work that exists in significant numbers in the local and national economies

1

David J. Manley, Administrative Law Judge.

despite his impairments. The Appeals Council denied Shakespear’s request for a review of
the ALJ’s decision on June 14, 2010, and he timely commenced this appeal on August 5,
2010. Id.
II. LEGAL STANDARD
In its judicial review of a decision denying benefits, a district court must determine
whether there is substantial evidence in the administrative record to support the
Commissioner’s decision. 42 U.S.C. § 405(g); Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir.
2009). Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996). In
assessing the substantiality of the evidence, evidence that both detracts from the
Commissioner’s decision as well as evidence that supports it must be considered. Woolf v.
Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). The Commissioner’s decision, however, will not
be reversed merely because substantial evidence would have supported an opposite decision.
Id.
III. DISCUSSION
Shakespear, a thirty-eight-year-old male, is seeking benefits due to complications
related to seizures, lumbar degenerative disc disease, headaches, bilateral wrist pain,
breathing problems, depression, and anxiety. Plf.’s Br. pg. 2. Shakespear was in special
education while in grade school and has a high school diploma. Id. He has past work
experience as a heavy equipment machine operator in the Army. Id. He has not worked since

2

approximately September 2005. Defendant’s Brief pg. 2.
The ALJ considered Shakespear’s impairments by way of the required five-step
sequential evaluation process. 20 C.F.R. § 416.920. At step one, he found that Shakespear
had not engaged in substantial gainful activity since the application date. Transcript pg. 43.
At step two, the ALJ found that Shakespear’s pseudoseizures, low back pain, migraine
headaches, anxiety disorder and recurrent major depressive disorder constituted severe
impairments within the meaning of the Social Security regulations. Tr. 43.
At step three, the ALJ found that none of his impairments equaled a listed impairment
under 20 C.F.R. §§ 416.920(d). He also found that Shakespear had the residual functional
capacity to perform medium unskilled work activity with seizure restrictions as defined in
20 C.F.R. §§ 416.967(c), 416.968(a). Id at 57. Further restrictions included being limited to
performing work where interpersonal contact is incidental to work performed, the complexity
of tasks is learned and performed by rote with few variables and little judgment, and the
supervision required is simple, direct, and concrete. Id.
At step four, the ALJ received testimony from the vocational expert that Shakespear
is unable to perform his past relevant work. Id. Finally at step five, the ALJ found that based
upon Shakespear’s age, education, work experience, and residual functional capacity, he
could perform representative occupations such as a cleaner at a business or do assembly work
as a hand packer. Id. At 56. Both exist in significant numbers in the local and national
economies. Id. For this reason, the ALJ found that Shakespear was not disabled. Id. at 58.

3

On appeal, Shakespear asserts that the ALJ erred in: (1) making the step 3 evaluation;
(2) weighing the medical evidence and opinion’s of Shakespear’s physicians; (3) determining
Shakespear’s residual functional capacity; (4) his analysis of the Department of Veterans
Affairs decision; (5) the hypothetical posed to the vocational expert; and (6) his credibility
findings as to the testimony of Shakespear and other witnesses at the hearing. The
Commissioner maintains that substantial evidence supports the ALJ’s findings that
Shakespear was not disabled and the decision must be affirmed.
A.

Substantial Evidence in the Record
The ALJ’s decision is supported by substantial evidence.
1. Listing argument
Shakespear argues that, at step three, the ALJ.made a conclusory statement that he did

not have an impairment that met or equaled a listing under 20 C.F.R. §§ 416.920(d) and that
there was no discussion about which, if any listings, were considered. The Commissioner
responds that the ALJ did consider evidence of a listed impairment, but his failure to
elaborate on his conclusion does not require reversal. While it is preferable to have an ALJ
state explicitly why a claimant failed to meet a listing, the conclusion must be upheld if the
record supports it. Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 649 (8th Cir. 2004)
(internal citations omitted). Here, the record supports the ALJ’s conclusion that Shakespear
did not meet the requirement for a listed impairment. Shakespear argues that the ALJ should
have considered whether he met or equaled listings 11.02 for seizure disorder, 1.04 for spinal

4

conditions, 12.06 for anxiety disorder, and 12.04 for depression. The question of whether
Shakespear meets a listed impairment is strictly a medical determination. See 20 CFR §§
404.1526(a) and 416.926(b) (2008). Shakespear must present findings equal in severity to
all of the criteria for the disputed listed impairment. Marciniak v. Shalala, 49 F. 3d 1350,
1353 (8th Cir. 1995).
Shakespear fails to meet the requirements of listing 11.02, nonconvulsive epilepsy,
because he has not complied with the prescribed treatment for his seizures. A claimant must
have convulsive epilepsy documented by seizures that occur more than once a month in spite
of at least 3 months of prescribed treatment to meet 11.02. 20 CFR Pt. 404, Subpt. P. App.
1, Listing 11.02 (2008). Although the record reflects that Shakespear has been diagnosed
with pseudoseizures, the record also supports the contention that his seizures are well
controlled when he takes his medication as prescribed. Tr. 290 (September 2006 VA
Community Outpatient Clinic progress report). Shakespear’s medical records show that when
his seizure medication levels are low, indicating that he has not taken his medicine as
prescribed, his seizures occur more frequently. See Tr. 599 (noting Shakespear having two
seizures in the past month when his medication level was noted as being low). Since
Shakespear has failed to comply with his prescribed form of treatment, he has failed to meet
the requirements of listing 11.02.
Shakespear also fails to meet the requirements of listing 1.04 for disorders of the
spine. See 20 CFR Pt. 404, Subpt. P. App. 1, Listing 1.04 (2008). While the record indicates

5

that he has had some chronic lower back pain, nothing indicates that this pain rises to the
level of a spinal disorder. Shakespear has admitted in his own brief that he does not have
nerve root compression or stenosis as required by listing 1.04 but argues that his back pain
should be equal to the requirements of the listing. Plf.’s. Br. pg. 7. The record indicates that
Shakespear has not complained of, or sought treatment for, complaints of back pain since
April 2007. Tr. 555. The record is also lacking of any evidence related to any type of acute
back pain since the onset date of September 15, 2005. Shakespear has failed to meet the
requirements of 1.04.
Lastly, Shakespear has failed to meet the requirements for listings 12.04 and 12.06 for
anxiety and affective disorders. See 20 CFR Pt. 404, Subpt. P. App. 1, Listings 12.04 and
12.06 (2008). Both listings specify that in order for a claimant’s mental impairment to meet
the requirements of the listing, their mental impairment must result in two of the following:
(1) marked restriction of activities of daily living; or (2) marked difficulties in maintaining
social functioning; or (3) marked deficiencies in maintaining concentration, persistence or
pace; or (4) repeated episodes of deterioration or decompensation, each of extended duration.
Id. Shakespear’s own statements indicate that he has no marked restriction in activities of
daily living or maintaining social functioning as he has asserted throughout the record that
he can perform household activities and play video games with his children among other
things. While Shakespear’s anxiety and depressive disorders affect his ability to concentrate
for extended periods of time, the ALJ determined that this did not affect his ability to

6

understand and carry out short, simple instructions. Finally, the ALJ notes that there is no
evidence in the record of Shakespear ever experiencing an episode of deterioration. The
determination that none of Shakespear’s impairments met the requirements of the disputed
listings in step 3 was valid and the ALJ properly considered whether Shakespear met a listed
impairment. The ALJ’s failure to cite to specific listings being considered was not in error
as the overall record supported his conclusions.
2. Medical evidence and opinions arguments
Shakespear asserts that the ALJ erred in weighing the medical evidence by ignoring
favorable evidence and relying on medical records made prior to the disability onset date of
September 15, 2005. To support his argument, Shakespear cites to examples of the ALJ
discussing some of his seizure treatments, but failing to discuss others. Plf.’s. Br. pg. 8-9. An
ALJ’s failure to cite specific evidence does not indicate that it was not considered. England
v. Astrue, 490 F.3d 1017, 1022 (8th Cir. 2007) (internal citations omitted). While the ALJ
considered some evidence prior to the onset date, there is substantial evidence in the record
to support the ALJ’s conclusion post September 15, 2005 as discussed supra in section
III.A.1. Although Shakespear argues that the ALJ could have come up with a different
conclusion if he viewed the evidence differently, “[t]he possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s
findings from being supported by substantial evidence.” Baldwin v. Barnhart, 349 F.3d 549,
555 (8th Cir. 2003). The ALJ’s conclusion that Shakespear is not disabled is supported by

7

substantial evidence in the record and he has properly considered the medical evidence
provided beyond the onset date of September 15, 2005.
Shakespear also asserts that the ALJ failed to give proper deference to the medical
opinions of Drs. Tribble and DeRoeck by rejecting both of their opinions. Shakespear cites
to the “treating physician” rule to support his argument: “The opinions of the claimant’s
treating physicians are entitled to controlling weight if they are supported by and not
inconsistent with the substantial medical evidence in the record.” Stormo v. Barnhart, 377
F.3d 801, 805 (8th Cir. 2004). Dr. Tribble completed a medical source statement and a
seizure evaluation concluding that Shakespear is unable to work. Plf.’s Br. pg. 14.
Shakespear claims that the ALJ rejected Dr. Tribble’s opinion because Dr. Tribble
failed to review his medical records when completing his medical source statement and
because there was an inconsistency in Dr. Tribble’s findings of limitations and restrictions.
Id. The record shows that the ALJ properly rejected Dr. Tribble’s opinion. During testimony,
Shakespear admitted that he and his wife filled out the form for Dr. Tribble’s medical source
statement, that he has only seen Dr. Tribble twice, and Dr. Tribble also admitted that he never
reviewed Shakespear’s medical records, with the exception of an MRI, prior to making his
assessment. Tr. 48. Also, Dr. Tribble’s medical assessment contradicted itself by noting that
Shakespear had no problems with balance or equilibrium, but should never stoop, kneel,
crouch, or crawl. Id. The record shows that Dr. Tribble’s opinion is not only inconsistent, but
also based on little if any medical evidence. See Holstrom v. Massanari, 270 F.3d 715 (ALJ

8

did not err by discounting assessments made by treating physicians where opinions were in
checklist form, were based on relatively short-term relationships with the claimant, and were
inconsistent with the medical evidence as a whole). The ALJ did not err in rejecting the
opinion of Dr. Tribble.
Dr. DeRoeck, a consultative examiner, conducted a psychological evaluation of
Shakespear and diagnosed him with dementia, depressive disorder, and limited mental and
physical capacity for sustained employment. Tr. 53. The ALJ decided to reject Dr.
DeRoeck’s assessment because “no other treating physician has indicated any mental
limitations resulting from [Shakespear’s] alleged anxiety and depression. Id. Similar to the
reasons discussed supra, the ALJ did not err in rejecting Dr. DeRoecke’s opinion given that
it was not supported by any other medical evidence. Substantial evidence supports the ALJ’s
decision to reject the opinions of Drs. Tribble and DeRoecke and did not constitute error.
3. Residual functional capacity argument
Shakespear also submits that the ALJ improperly determined his residual functional
capacity (“RFC”). Pursuant to 20 C.F.R. § 416.945, the ALJ must consider all of the relevant
evidence in the record and resolve conflicts among the medical opinion evidence. Bentley v.
Shalala, 52 F.3d 784, 785 (8th Cir. 1995). In his decision denying benefits, the ALJ
discussed all relevant evidence and determined that Shakespear was capable of performing
medium, unskilled work activity with seizure restrictions as defined in 20 C.F.R. §§
416.967(c), 416.968(a). Tr. 56. Further restrictions include being limited to performing work

9

where interpersonal contact is incidental to the work performed, the complexity of tasks is
learned and performed by rote, and the supervision required is simple, direct, and concrete.
Id. at 55. Shakespear argues that the ALJ erred in determining that he has the ability to work
at the medium exertional level. He specifically alleges that the ALJ did not do a function-byfunction assessment of his abilities as required by Social Security Ruling (“SSR”) 96-8p. The
Commissioner submits that SSR 96-8p does not require a function-by-function assessment,
but instead requires an ALJ to explain how the evidence supports his RFC determination.
The narrative discussion requirements of SSR 96-8p states: “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).” SSR 96-8p at 7. The ALJ must also discuss the claimant’s ability
to perform work activities in an ordinary work setting and to describe the maximum amount
of each work-related activity the claimant can perform each day (i.e., 8 hours a day for 5 days
a week). Id. While there is language in SSR 96-8p that explains the purpose and relevance
of doing a function-by-function assessment of a claimant’s limitations or restrictions, as long
as the ALJ discusses how the evidence supports his conclusion, he has met the requirements
of SSR 96-8p.
There is substantial evidence in the record that the ALJ supported his RFC
determination with both medical and nonmedical evidence. After discussing Shakespear’s
alleged neurological defects and migraines (Tr. 43-44, 48-49), seizures (Tr. 45-46), back and

10

wrist pain (Tr. 47), evidence of motor skills (Tr. 46-51, 53, 55), and mental condition (Tr.
54), the ALJ properly made a determination of Shakespear’s RFC by noting that although he
can not return to his past form of work due to his limitations, Shakespear has the ability to
perform work activities at the medium unskilled levels with appropriate seizure restrictions.
The ALJ did not err in making his RFC determination and his conclusions are supported by
substantial evidence in the record.
4. Veterans Affairs argument
Shakespear briefly argues that the ALJ failed to address the report of the Department
of Veterans Affairs (“VA”) that determined he has pseudoseizures and was granted twenty
percent (20%) service connected disability. On the contrary, the ALJ discusses the VA report
and concludes that he is not bound by their determination of disability. Tr. 46. The ALJ is
correct in that findings of disability by other federal agencies are not binding on an ALJ,
although they are entitled to some weight. Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir.
1998). There is no evidence that Shakespear’s 20% service connected disability equates to
a determination of disability under the laws of the Social Security Administration. See Fisher
v. Shalala, 41 F.3d 1261, 1262 (8th Cir. 1994) (60% service-connected disability not equal
to Social Security disability). Therefore, the ALJ did not err in his analysis of the VA
decision.
5. Vocational expert argument
Shakespear also submits that the hypothetical question posed to the vocational expert

11

(“VE”) at the ALJ’s hearing was flawed. Shakespear specifically claims that the ALJ did not
include all of his alleged limitations and impairments when he posed the hypothetical. A
vocational expert need only consider impairments supported by substantial evidence in the
record and accepted as true by the ALJ. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001).
Accordingly, the ALJ, after reviewing all of the medical evidence and testimony of
Shakespear and his witnesses, posed a hypothetical to the VE that included only the
impairments that he determined were true and relevant to Shakespear’s ability to work.
Substantial evidence supported the inclusion of certain impairments and the exclusion of
others. See Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993) (hypothetical may omit
evidence not substantially supported by record as a whole). The ALJ’s decision not to include
all of Shakespear’s alleged impairments was proper since not all of the impairments were
supported by substantial evidence in the record. The hypothetical posed to the VE was proper
and the ALJ did not err in his determination of Shakespear’s ability to perform certain work
activities.
6. Credibility arguments
Lastly, Shakespear argues that the ALJ failed to make a proper credibility
determination as to his testimony and the testimony of his witnesses. He alleges that the ALJ
did not follow the credibility criteria as set out in Polaski v. Heckler, 739 F.3d 1320 (8th Cir.
1984) and SSR 96-7p. The Commissioner asserts that the ALJ considered all relevant
credibility factors pursuant to Polaski and other authority and is not required to list out each

12

factor so long as the factors are considered. Polaski requires that an ALJ consider all
evidence related to complaints of pain when making a credibility determination, including
evidence related to such matters as: “(1) the claimant’s daily activities; (2) the duration,
frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage,
effectiveness and side effects of medications; and (5) functional restrictions.” 739 F.3d at
1322. While the ALJ did not specifically list each of these factors when evaluating
Shakespear’s complaints of pain, there is substantial evidence in the record that he
considered them. “The ALJ is not required to discuss each Polaski factor as long as the
analytical framework is recognized and considered.” Tucker v. Barnhart, 363 F.3d 781, 783
(8th Cir. 2004).
The record shows that the ALJ noted and discussed Shakespear’s daily activities as
being inconsistent with his alleged level of pain. Tr. 51 For instance, Shakespear notes that
he has radiating pain in his hands and wrists that prevent him from doing any work, yet he
also states that he enjoys doing crafts such as carving wood and putting together model boats
and planes which both require extensive use of the hand and wrist. Id. The ALJ also notes
the only alleged side effect of Shakespear’s prescribed medications is drowsiness. Id. at 50.
Drowsiness may impede Shakespear’s ability to do some forms of work, but it certainly does
not render him disabled. It is clear that the ALJ properly considered the relevant criteria when
determining Shakespear’s credibility and did not err in his determination.
Shakespear’s argument that the ALJ improperly discredited the testimony of his

13

witnesses also fails. “On review of [an] administrative agency’s denial of social security
disability benefits, [the court] does not reweigh evidence presented to [the] ALJ, and defers
to the ALJ’s determinations regarding credibility of witnesses, as long as they are supported
by good reasons and substantial evidence.” Gulliams v. Barnhart, 393 F. 3d 798 (8th Cir.
2005). Shakespear’s wife, Mitzi, testified at the hearing and he also submitted lay statements
from his family members to the ALJ. Tr. 133-140.
The ALJ determined that the witness statements were not credible because they were
based upon an uncritical acceptance of Shakespear’s complaints and were motivated by a
desire to see him obtain benefits. Tr. 51. There is evidence to support the ALJ’s contention
given that Mitzi Shakespear told Dr. DeRoeck that Shakespear had attempted suicide 12
times, Tr. 437, yet there is no other evidence in the record supporting this statement. This
point alone gives the ALJ a valid reason to discredit the testimony of the witness. See Davis
v. Callahan, 125 F.3d 670, 675 (8th Cir. 1997) (explaining that ALJ determines what
credence to give testimony of family and friends). The ALJ’s determination of credibility was
based on substantial evidence in the record and was not made in error.
IV. CONCLUSION
The ALJ’s decision is supported by substantial evidence in the record and is hereby
affirmed.
IT IS SO ORDERED this 28th day of September 2011.

14

________________________________
UNITED STATES DISTRICT JUDGE

15