Brooks v. Social Security Administration

Filing 18

MEMORANDUM OPINION AND ORDER dismissing pltf's complt. All requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge H. David Young on 6/14/2011. (lej)

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

JIMMY LEE BROOKS

PLAINTIFF

v.

NO. 3:10CV00215 HDY

MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER

BACKGROUND. Plaintiff Jimmy Lee Brooks (“Brooks”) commenced the
administrative portion of this case by filing applications for disability insurance benefits
and supplemental security income benefits pursuant to the provisions of the Social
Security Act (“Act”). His applications were denied initially and upon reconsideration. He
thereafter requested, and received, a de novo administrative hearing before an
Administrative Law Judge (“ALJ”). A decision adverse to Brooks was eventually issued by
the ALJ, and Brooks appealed. The ALJ’s decision was subsequently affirmed by the
Appeals Council; as a result, the decision became the final decision of the Commissioner
of the Social Security Administration (“Commissioner”). Brooks then commenced the
judicial portion of this case by filing a complaint pursuant to 42 U.S.C. 405(g). In the
complaint, he challenged the Commissioner’s final decision.

STANDARD OF REVIEW. The sole inquiry for the Court is to determine whether the
ALJ’s findings are supported by substantial evidence on the record as a whole. It requires
the Court to consider the weight of the evidence in the record and apply a balancing test
to evidence which is contrary. See Heino v. Astrue, 578 F.3d 873 (8th Cir. 2009).
THE ALJ’S FINDINGS. The ALJ made findings pursuant to the five step sequential
evaluation process. At step one, the ALJ found that Brooks has not engaged in substantial
gainful activity since November 1, 2006, the alleged onset date. At step two, the ALJ
found that Brooks has the following severe impairments: “diabetes mellitus, degenerative
disc disease of the cervical spine, obesity, and general arthralgias.” See Transcript at 11.
At step three, the ALJ found that Brooks does not have an impairment or combination of
impairments listed in, or medically equal to one listed in, the governing regulations. The
ALJ then assessed Brooks’ residual functional capacity and found that he is capable of
performing the full range of medium work, that is, “[he] can lift/carry a maximum of
[fifty] pounds occasionally and [twenty-five] pounds frequently and stand, walk, or sit
six hours in an eight-hour workday.” See Transcript at 13. At step four, the ALJ found
that Brooks is capable of performing his past relevant work as a janitor and forklift
operator as the work “does not require the performance of work-related activities
precluded by [his] residual functional capacity ...” See Transcript at 14. Given the
foregoing findings, the ALJ concluded that Brooks was not under a disability as defined
by the Act at any time from the alleged onset date through the date of the ALJ’s
decision.
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BROOKS’ ASSERTIONS OF ERROR. Are the ALJ’s findings supported by substantial
evidence on the record as a whole? Brooks thinks not and advances the following reasons
why: (1) the ALJ failed to fully develop the record because Brooks’ request for a
consultative examination was ignored; (2) the ALJ failed to consider that Brooks is
illiterate; (3) there are no findings by a treating physician substantiating the ALJ’s finding
as to Brooks’ residual functional capacity; (4) the ALJ failed to properly consider Brooks’
subjective complaints; (5) the ALJ failed to identify the physical and mental demands of
Brooks’ past relevant work; and (6) given Brooks’ significant non-exertional impairments,
the ALJ should have obtained the testimony of a vocational expert.
DEVELOPING THE RECORD. Brooks first maintains that the ALJ failed to fully
develop the record. Brooks so maintains because his request for a consultative
examination was ignored.
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. Asture, 372 Fed.Appx. 681 (8th Cir. 2010). With regard to ordering a
consultative examination, it is reversible error for an ALJ not to order such an
examination when it is necessary to make an informed decision. See Freeman v. Apfel,
208 F.3d 687 (8th Cir. 2000).
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The Court has examined the record and can find nothing to substantiate Brooks’
assertion that he requested a consultative examination or that his request was ignored.
With regard to whether he ever made such a request, the Court adopts the position
advanced by the Commissioner, which is supported by the record and is as follows:

... [Brooks] does not cite to the place in the record where he made such a
request. Review of the August 27, 2009, hearing transcript shows that [his]
attorney did not make any request at the outset of the hearing when the
ALJ asked him to identify preliminary matters. ... At the conclusion of
[Brooks’] testimony, [his] attorney stated that he did not have any
questions. ... At the same hearing, and after [Brooks] offered some new
information about the possibility that his doctor had recommended drastic
surgery [footnote omitted], the ALJ agreed to keep the record open. ...
Still, [Brooks’] attorney did not request a consultative examination. ...
[Brooks’] request for reconsideration of the initial administrative decision
denying him benefits did not request a consultative report and stated that
he had no additional evidence to present. ... Later, [his] request for review
of the hearing decision did not include a request for a consultative exam.
... On April 30, 2010, and for the first time, [his] representative stated that
he requested a psychological consultation, “which the ALJ refused.” ...

See Document 17 at 6-7. Because Brooks never made a request for a consultative
examination, any assertion that the ALJ ignored such a request is simply without merit.
Notwithstanding the foregoing, the Court has examined the record to determine
whether it contains sufficient information for the ALJ to have made an informed decision.
The Court is satisfied that the record is indeed sufficient. It contains a number of Brooks’
records, medical and otherwise, and he has not identified any record that should have
been included in the record but was not. Accordingly, the Court finds that the ALJ fully
developed the record.
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ILLITERACY. Brooks next maintains that he is illiterate. He maintains that his
illiteracy was not considered, that his request for a consultative examination to evaluate
his illiteracy was ignored, and that Rules 201.17 and 202.09 of the Medical-Vocational
Guidelines (“Guidelines”) compel a disability finding for someone who is illiterate and
has his residual functional capacity, age, and work experience.
“Illiteracy means the inability to read or write.” See 20 C.F.R. 404.1564(b)(1); 20
C.F.R. 416.964(b)(1). The governing regulations additionally provide the following: “We
consider someone illiterate if the person cannot read or write a simple message such as
instructions or inventory lists even though the person can sign his or her name. Generally
an illiterate person has had little or no formal schooling.” See Id. The determination of
whether a claimant is illiterate typically does not swing on one factor but instead
requires the consideration of several different factors. See Howard v. Massanari, 255 F.3d
577 (8th Cir. 2000).
The ALJ did not consider the question of whether Brooks is illiterate. Although it
is not clear why, it is likely that the ALJ by-passed the question because Brooks’ illiteracy
is not of such a degree that it should have been considered.
The Court is satisfied that the ALJ did not commit reversible error in by-passing
the question of Brooks’ illiteracy; it is simply not of such a degree that it should have
been considered. First, in applying for benefits, Brooks made several representations
about his ability to read and write. He specifically represented that he can read and
understand English and can write more than his name in English. See Transcript at 89.
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Second, Brooks testified at the administrative hearing about the extent of his
education. He testified that he went as far as the ninth grade in school, see Transcript
at 25, a level of education the governing regulations define as a “limited education,” see
20 C.F.R. 404.1564(b)(3); 20 C.F.R. 416.964(b)(3). With regard to his educational progress
during those years, he offered no evidence whatsoever that he experienced any
difficulties in school.
Third, Brooks also testified at the administrative hearing about his proficiency in
reading and writing. Although he testified that he cannot read or write reasonably well,
and needs help reading the newspaper and forms prepared by the Social Security
Administration, he did testify that he can read “some things, maybe like–maybe about,
you know, a book or something, you know, like not these, you know, these big words or
something like that, ...” See Transcript at 25.
Fourth, and most significant, Brooks worked for a number of years as a janitor and
forklift operator. See Transcript at 26, 106. The work indicates that he can meet the
minimum literacy demands of those jobs, and there is nothing to suggest that his literacy
level declined after he left the jobs.
Last, Brooks offered no testing to support the assertion that he is illiterate.
Although he maintains that his request for a consultative examination to evaluate his
illiteracy was ignored, there is nothing to suggest that he ever made such a request.
Because he never made such a request, any assertion that the ALJ ignored the request
is simply without merit.
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For the foregoing reasons, the Court finds that the ALJ did not commit reversible
error in by-passing the question of Brooks’ illiteracy. As a result, it was not necessary for
the ALJ to have considered Rules 201.17 and 202.09 of the Guidelines.
RESIDUAL FUNCTIONAL CAPACITY. Brooks next maintains that his residual
functional capacity was not properly assessed. He maintains that there are no findings
by a treating physician substantiating the finding as to his residual functional capacity.
Residual functional capacity is simply an assessment 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 and must
be supported by “medical evidence that addresses [the person’s] ability to function in
the workplace.” See Id. at 539.
In assessing Brooks’ residual functional capacity, the ALJ considered Brooks’
medical history and his impairments, severe and not severe, supported by the medical
evidence. In doing so, the ALJ relied upon the findings made by a state agency physician,
Dr. Ronald Crow (“Crow”). See Transcript at 230-237. The ALJ also considered Brooks’
subjective complaints.1 The ALJ found that neither the medical evidence nor Brooks’
subjective complaints prevent him from performing the full range of medium work.
1

In considering those complaints, the ALJ cited, inter alia, Social Security Ruling 96-7p. It outlines
the standard the ALJ must use in assessing the credibility of a claimant’s subjective complaints. It conforms
to the standard articulated in Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984), by providing that the ALJ
must consider, inter alia, the following factors in assessing the claimant’s credibility: the claimant’s daily
activities; the location, duration, frequency, and intensity of the claimant’s pain and other symptoms;
factors that precipitate and aggravated the symptoms; the type, dosage, effectiveness, and side effects
of any medication; and any functional restrictions.

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Substantial evidence on the record as a whole supports the ALJ’s assessment of
Brooks’ residual functional capacity. The ALJ properly considered the medical evidence,
and it was not error for the ALJ to have relied upon Crow’s findings as he based them on
the records he reviewed from the East Arkansas Family Health Center, the Mid-South
Internal Medicine Clinic, and the Crittenden County Memorial Hospital. See Transcript at
237. The Court has reviewed those records. See Transcript at 138-159 (East Arkansas
Family Health Center); 218-219, 228-229 (Mid-South Internal Medicine Clinic); and 160216, 241-263, 289-373 (Crittenden County Memorial Hospital). There is nothing in those
records that contravenes the ALJ’s finding as to Brooks’ residual functional capacity.
The ALJ also properly considered the non-medical evidence, including Brooks
subjective complaints. There is nothing in the non-medical evidence that contravenes the
ALJ’s finding as to Brooks’ residual functional capacity. Brooks complained of pain in his
shoulder, back, and leg, see Transcript at 30-32, and of migraine headaches, see
Transcript at 38. Although he is undoubtedly in some pain, his credibility is undermined
by what appears to be an exaggerated inability to perform the simplest of daily
activities, see Transcript at 98-105; his failure at times to take the medicine prescribed
by his treating physicians, see Transcript at 138, 329; and, particularly telling, the fact
that many of his complaints are at odds with the evidence. For instance, Brooks testified
at the administrative hearing that his physicians recommended amputating both of his
legs because of “poison, tumors, [and] sugar ...,” see Transcript at 42, but there is no
evidence that any physician ever made such a drastic recommendation.
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Brooks faults the ALJ’s assessment because it is not supported by the findings of
a treating physician. The Court has examined the findings of Drs. Nidal Rahal, see
Transcript at 138, 143, 147; Wilfred Onyia, see Transcript at 218-219, 228-229; Ian
Murray, see Transcript at 168, 176, 201, 253; Churchill Akhigbe, see Transcript at 328329; Michael David Munday, see Transcript at 330-331; and Steven Roney, see Transcript
at 350. None of the physicians offered an opinion as to the most Brooks can do despite
his limitations, but there is nothing about their findings that is inconsistent with the ALJ’s
finding that Brooks is capable of performing the full range of medium work.2
THE PHYSICAL AND MENTAL DEMANDS OF BROOKS’ PAST RELEVANT WORK. Brooks
next maintains that the physical and mental demands of his past relevant work as a
janitor and forklift operator were not properly identified. He additionally maintains that
the ALJ failed to explain why Brooks’ residual functional capacity permits him to perform
such work.
Before the ALJ determines that a claimant can perform his past relevant work, the
ALJ must first fully investigate, and make explicit findings as to, the physical and mental
demands of the work. See Sells v. Shalala, 48 F.3d 1044 (8th Cir. 1995). See also Social
Security Ruling 82-62. Once the ALJ does so, he must then compare the demands of the
work with what the claimant is capable of performing. See Sells v. Shalala, supra.

2

As a separate assertion of error, Brooks maintains that his subjective complaints were not properly
considered by the ALJ. The assertion will not be addressed separately as the Court has found that
substantial evidence on the record as a whole supports the ALJ’s treatment of Brooks’ subjective
complaints.

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The ALJ’s findings as to the physical and mental demands of Brooks’ past relevant
work were minimal, and the ALJ’s comparison of those demands with what Brooks is
capable of performing was also minimal. In full, the ALJ found the following: “In
comparing [Brooks’] residual functional capacity with the physical and mental demands
of [his past relevant work], the undersigned finds that [he] is able to perform it as
generally performed (Dictionary of Occupational Titles 389.667-010 and 921.683-050).”
See Transcript at 15.
Substantial evidence on the record as a whole supports the ALJ’s minimal findings
as to the physical and mental demands of Brooks’ past relevant work and the ALJ’s
comparison of those demands with what Brooks is capable of performing. The ALJ
correctly identified the demands of Brooks’ past relevant work as a janitor by citing the
applicable description of the work found in the Dictionary of Occupational Titles (“DOT”),
i.e., 389.667-010, and his past relevant work as a forklift operator by citing the
application description of the work found in the DOT, i.e., 921.683-050. The ALJ
committed no error in so identifying the demands of Brooks’ past relevant work. The ALJ
may discharge the duty to make explicit findings regarding the demands of a claimant’s
past work by “referring to the specific job descriptions in the [DOT] that are associated
with the claimant’s past work.” See Sells v. Shalala, 48 F.3d at 1047. The ALJ then
correctly compared the demands of Brooks’ past relevant work with the finding the ALJ
made regarding Brooks’ residual functional capacity, the latter finding being supported
by substantial evidence on the record as a whole.
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VOCATIONAL EXPERT TESTIMONY. Brooks last maintains that the ALJ should have
obtained the testimony of a vocational expert. Brooks so maintains because he has
significant non-exertional impairments.
In Draper v. Barnhart, 425 F.3d 1127, 1132 (8th Cir. 2005), the Court of Appeals restated the rule governing the need for vocational expert testimony. It is as follows:

Generally, if the claimant suffers from nonexertional impairments that
limit [his] ability to perform the full range of work described in one of the
specific categories set forth in the guidelines, the ALJ is required to utilize
testimony of a vocational expert. ... The exception to this general rule is
that the ALJ may exclusively rely on the guidelines even though there are
nonexertional impairments if the ALJ finds, and the record supports the
finding, that the nonexertional impairments do not significantly diminish
the claimant’s RFC [residual functional capacity] to perform the full range
of activities listed in the guidelines.

The ALJ did not obtain vocational expert testimony. Although it is not clear why,
it is likely because he concluded his analysis of Brooks’ applications at step four, or upon
finding that Brooks can return to his past relevant work.
The Court is satisfied that the ALJ did not commit reversible error in not obtaining
vocational expert testimony. First, the ALJ stopped at step four. Substantial evidence on
the record as a whole supports his decision to do so, and it was unnecessary to obtain
vocational expert testimony. Second, substantial evidence on the record as a whole
supports the ALJ’s finding that Brooks’ non-exertional impairments do not significantly
diminish his residual functional capacity to perform the full range of medium work.

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CONCLUSION. There is substantial evidence on the record as a whole to support
the ALJ’s findings. Accordingly, Brooks’ complaint is dismissed, all requested relief is
denied, and judgment will be entered for the Commissioner.
IT IS SO ORDERED this

14

day of June, 2011.

UNITED STATES MAGISTRATE JUDGE

.

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