Brown v. Social Security Administration

Filing 16

MEMORANDUM OPINION AND ORDER affirming the Commissioner's decision. Signed by Magistrate Judge Beth Deere on 1/4/12. (vjt)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
ROBERT L. BROWN
vs.

PLAINTIFF
CASE NO. 3:10-CV-00317 BD

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Robert Brown appeals the final decision of the Commissioner of the
Social Security Administration (the “Commissioner”) that denied his claim for
Supplemental Security income (“SSI”) under Title XVI of the Social Security Act
(“Act”). Because substantial evidence supports the Commissioner’s decision, it must be
AFFIRMED.
I.

Background:
Mr. Brown applied for SSI on February 28, 2008, alleging disability since January

1, 2000, as a result of mental illness, ankle problems, and diabetes. (Tr. 29, 88-90, 95,
100) A hearing was held before an Administrative Law Judge (“ALJ”)1, on August 20,
2009. (Tr. 23-42, 71-73, 79-80) Mr. Brown testified at the hearing, as did Dianne G.
Smith, a vocational expert. (Tr. 26-41)
The ALJ denied Mr. Brown’s claims on October 7, 2009. (Tr. 10-22) The
Appeals Council denied Mr. Brown’s request for reconsideration on November 15, 2010,

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The Honorable Lesly W. Mattingly.

making the ALJ's decision the final decision of the Commissioner. (Tr. 1-5) Mr. Brown
then filed this appeal. The parties have completed briefing the case, and it is ready for
decision.
At the time of the hearing, Mr. Brown was 46 years old and lived in Blytheville,
Arkansas with his mother. (Tr. 26) He had completed the 11th grade and later had
received a General Educational Development (“GED”) certificate. (Tr. 26-27) In
addition, Mr. Brown reported having had some vocational training. (Tr. 27) He had past
work experience as a general laborer, but had never held a full-time job. (Tr. 28) Mr.
Brown had spent most of his adult life in prison, having been incarcerated nine different
times.2 (Tr. 35-36)
II.

Decision of the Administrative Law Judge:
The ALJ followed the required five-step sequence to determine: (1) whether the

claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a
severe impairment; (3) if so, whether the impairment (or combination of impairments)
met or equaled a so-called “Listed” impairment, that is an impairment or combination of
impairments listed in 20 CFR Part 404, Subpart P, Appendix 1; (4) if not, whether the

2

Mr. Brown’s history of incarceration is included solely as a possible explanation
for his failure, at age 46, ever to have held a full-time job.
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impairment (or combination of impairments) prevented the claimant from performing past
relevant work3; and (5) if so, whether the impairment (or combination of impairments)
prevented the claimant from performing any other jobs available in significant numbers in
the national economy. 20 C.F.R. § 416.920(a)-(g).
The ALJ found that Mr. Brown had not engaged in substantial gainful activity
since February 28, 2008, the date he filed his SSI application, and further found that Mr.
Brown suffered from several severe impairments – diabetes mellitus; ankle fracture postsurgical repair; depressive disorder; anti-social personality disorder; and poly-substance
abuse. (Tr. 12) He found that Mr. Brown’s impairments did not meet or equal a Listed
impairment, but that when Mr. Brown’s substance abuse disorder was considered in
combination with his other impairments, he had “marked limitations relating adequately
to supervisors and coworkers; tolerating the routine stress of a working environment; and
maintaining adequate attention and concentration.” (Tr. 14) However, when Mr. Brown
abstained from abusing drugs and alcohol, he could function at an unskilled level,
according to the ALJ. (Tr. 20) The ALJ also judged that Mr. Brown would be limited to
sedentary work, based on problems with his ankle. (Tr. 19)
The ALJ concluded that Mr. Brown was not able to perform his past relevant
work as a laborer because that work is classified as light to medium. (Tr. 21) Given that

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If the claimant has sufficient residual functional capacity to perform past relevant
work, the inquiry ends and benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv).
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finding, the burden shifted to the Commissioner to demonstrate that Mr. Brown was able
to perform other work in the national economy.
The ALJ found that Mr. Brown could perform a full range of unskilled, sedentary
work, noting that Rule 201.21 directed a finding of “not disabled,” given Mr. Brown’s
age, education, and work experience. (Tr. 21, Findings 10 and 11). An ALJ may use the
Medical-Vocational Guidelines (“Grids”) to find that a claimant is not disabled if the
claimant does not have non-exertional impairments or if, as determined here, the
nonexertional impairments do not diminish the claimant’s residual functional capacity to
perform the full range of activities listed in the guidelines. Holz v. Apfel, 191 F.3d 945,
947 (8th Cir. 1999).
III.

Plaintiff’s Issues for Reversal:
For reversal, Mr. Brown argues that the ALJ erred in using the Grids to find him

not disabled. Specifically, he argues that, because his non-exertional impairments
significantly affected his residual functional capacity, the Grids were not controlling and
should not have been used to direct a conclusion of “not disabled.” (Plaintiff’s Brief, p.
10, citing Muncy v. Apfel, 247 F.3d 728, 735 (8th Cir. 2001)). Mr. Brown also contends
that the ALJ erred in not giving more weight to his testimony about his non-exertional
impairments, including his diabetes and ankle pain.
The Commissioner responds that where, as here, a claimant’s non-exertional
impairments do not diminish or significantly limit his residual functional capacity to

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perform the full range of “Guideline-listed activities,” use of the Grids is permitted.
(Defendant’s Brief, p. 5, citing Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995)).
He argues that substantial evidence supports the findings regarding Mr. Brown’s residual
functional capacity and also that the ALJ properly considered Mr. Brown’s testimony.
IV.

Discussion:
A.

Standard of Review

In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the record as a whole to support the decision. Johnson v.
Astrue, 627 F.3d 316, 319 (8th Cir. 2010); 42 U.S.C. § 405(g). Substantial evidence is
“less than a preponderance, but sufficient for reasonable minds to find it adequate to
support the decision.” Id. (citing Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010)).
In reviewing the record as a whole, the Court must consider both evidence that
detracts from the Commissioner’s decision and evidence that supports the decision. But
the decision cannot be reversed, “simply because some evidence may support the opposite
conclusion.” Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009)(quoting Goff v.
Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).
B.

Medical-Vocational Guidelines (“Grids”)

Plaintiff argues that, because of his non-exertional mental impairments, ankle
pain, and diabetes, the ALJ should not have relied on the Grids. Clearly, the ALJ could
properly rely on the Grids if Mr. Brown’s non-exertional impairments did not diminish or

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significantly limit his residual functional capacity to perform the full range of sedentary
work. Shannon, 54 F.3d at 488. The question, then, is whether substantial evidence
supports the ALJ’s determination that Mr. Brown retained the functional capacity to
perform the full range of activities required for unskilled, sedentary work.
1.

Mental Impairments

Here, the ALJ specifically considered Mr. Brown’s mental impairments in
assessing residual functional capacity, and the decision includes a comprehensive
discussion of the evidence relating to Mr. Brown’s mental impairments. (Tr. 17-21). As
the ALJ noted, although Mr. Brown attended two sessions for mental health treatment at
Mid South Health Systems (“Mid South”) in the Spring of 2008, he neither sought nor
received any further mental health treatment after April of 2008. (Tr. 19, 285-303)
According to Mid South treatment notes, Mr. Brown was supposed to return one month
after his April 29, 2008 appointment, but failed to do so. (Tr. 317, 31) At the hearing,
Mr. Brown at first testified that he did not return because he could not afford treatment,
but his attorney later acknowledged that cost was apparently not a factor. (Tr. 30)
It was not error for the ALJ to consider Mr. Brown’s lack of mental health
treatment in assessing the credibility of his subjective complaints of disabling mental
health problems. Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001).
The ALJ also considered, and discussed at length, the consultative examination
report of Mary Ellen Ziolko, Ph.D., and incorporated her findings in determining Mr.

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Brown’s residual functional capacity. (Tr. 19, 224-229). Dr. Ziolko’s noted that,
although Mr. Brown communicated in a socially adequate manner during her evaluation
of him, he should be limited to incidental contact with others. (Tr. 17, 19-20, 228). Dr.
Ziolko’s also opined that Mr. Brown might have difficulty with the typical mental or
cognitive demands of basic work-like tasks due to his depression and concentration
problems. Based on these assessments, the ALJ limited Mr. Brown to simple work
where the complexity of one- or two-step tasks was learned and performed by rote, with
few variables and little judgment, and the supervision required was simple. (Tr. 17,
Finding 6, 20, 228).
As noted, the ALJ determined that Mr. Brown could perform only unskilled,
sedentary work. (Tr. 17) For purposes of the Social Security regulations, “unskilled
work,” by definition, requires “little or no judgement to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R. § 416.968(a). In sum, the ALJ
accounted for all of Mr. Brown’s symptoms that would limit his residual functional
capacity.
But Mr. Brown also argues that the ALJ did not properly consider his low Global
Assessment of Functioning (“GAF”) scores that ranged from 41 to 45. In fact, the ALJ
acknowledged Mr. Brown’s low GAF scores but explained, correctly, why low GAF
scores are not controlling. (Tr. 20) As the ALJ noted, in spite of his GAF scores, Mr.
Brown admitted that he could “shop independently, manage his own finances, perform

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household chores, and run errands with his mother.” (Tr. 20, 38) It is also relevant that a
mental health examiner at Mid South Health Systems noted that Mr. Brown had, “no
impairment of his cognitive functioning.” (Tr. 20, 316)
Significantly, Mr. Brown admitted that he did not have any symptoms of
depression or anxiety while he was incarcerated (and presumably unable to abuse drugs
and alcohol). (Tr. 20, 224, 287, 293-294, 318) And medical intake records from the
Arkansas Department of Correction indicate that Mr. Brown reported no mental health
history and note that “no mental health disorder [was] apparent.” (Tr. 181)
The ALJ appropriately inferred that Mr. Brown was “capable of functioning at the
unskilled level when he abstains from drug and alcohol use.” (Tr. 20) This conclusion is
bolstered by Dr. Ziolko’s opinion that Mr. Brown’s depression could be a result of his
substance abuse. (Tr. 19, 227)
Evidence of heavy drug and alcohol use permeates the record and lends weight to
the ALJ’s finding that drug and alcohol abuse were a significant source of Mr. Brown’s
mental problems. Mr. Brown denied that he was still abusing drugs and alcohol at the
time of the August 2009 hearing, but medical records show a long history of substance
abuse. Mr. Brown admitted using copious amounts of alcohol as well as several illegal
street drugs as late as the year before the hearing.

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When Mr. Brown was admitted to St. Bernard Regional Health Center with a
broken ankle in February of 2008, he reported smoking two packs of cigarettes per day,
drinking “heavily,” and using marijuana. (Tr. 218)
On March 27, 2008, Mr. Brown reported to Dr. Ziolko, a consultative
psychologist, that he had used cocaine, PCP4, and marijuana a month before, but that he
had not used heroin in a long time. He also told Dr. Ziolko that he usually drank a pint
of liquor a day and had a history of blackouts from substance abuse. (Tr. 225)
Records from Mid South, about one month after the consultative examination with
Dr. Zioldo, indicate that Mr. Brown reported using powder cocaine three times per
month, smoking crack cocaine, using marijuana on a daily basis, and consuming alcohol
daily – “at least a 12-pack.” (Tr. 315) At that appointment, Mr. Brown refused
placement in a rehabilitation facility to address his substance abuse problem. (Tr. 317)
In sum, the ALJ’s finding that Mr. Brown’s drug and alcohol use contributed to
his mental problems is supported by substantial evidence in the record.

4

PCP (phencyclidine) is an hallucinogenic drug that causes users to become
agitated and delusional. The federal Drug Enforcement Agency lists PCP as a Schedule
II drug.
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2.

Subjective Allegations of Pain

The ALJ specifically acknowledged and discussed the Polaski factors when he
assessed Mr. Brown’s subjective allegations of disabling pain. Polaski v. Heckler, 751
F.2d 943 (8th Cir. 1984). (Tr. 18-19) It was appropriate for the ALJ to discount Mr.
Brown’s subjective complaints of disabling pain based on his daily activities set out
above. Likewise, the ALJ could properly take into account the fact that Mr. Brown had
worked “only sporadically prior to the alleged disability onset date” when considering
whether disability was the reason for Mr. Brown’s lack of employment. (Tr. 20) In
addition, Dr. Ziolko opined that, “given [Mr. Brown’s] history of anti-social behavior, it
is possible that he may have been exaggerating [symptoms] or malingering.” (Tr. 227228)
The ALJ acted within his discretion, based on the evidence in the record as a
whole, in discounting Mr. Brown’s subjective complaints and finding that his pain and
mental impairments did not diminish his ability to perform the full range of sedentary,
unskilled work. For these reasons, it was not error for the ALJ to rely on the Grid to find
that Mr. Brown was not disabled. (Tr. 21, Finding 11) Ellis v. Barnhart, 392 F.3d 988,
996 (8th Cir. 2005).

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3.

Diabetes

In addition to Mr. Brown’s mental problems, the ALJ also specifically considered
Mr. Brown’s diabetes. (Tr. 19) The ALJ properly considered the fact that Mr. Brown
had not received treatment for diabetes since May of 2008. (Tr. 19, 341-346) He also
noted that while Mr. Brown was in prison and receiving medical attention, his blood
sugar levels decreased significantly. (Tr. 19, 148-178) An impairment that can be
controlled with treatment or medication is not “disabling” for purposes of the Social
Security Act. Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (holding that an
impairment controllable with treatment or medication is not disabling).
Furthermore, as the ALJ noted, there is no medical evidence in the record to
indicate that Mr. Brown had any significant complications from his diabetes. (Tr. 19)
Mr. Brown’s spotty treatment for diabetes tends to lessen the weight afforded this
impairment. Sullins v. Shalala, 25 F.3d 601, 603 (8th Cir. 1994) (holding that the
claimant’s lack of treatment since the alleged onset of disability date discredits his
allegations of a disabling condition).
4.

Ankle Problems

According to the medical evidence, Mr. Brown broke his ankle in February of
2008 and subsequently had two surgeries to repair it. (Tr. 188-210, 251-258, 333-339)
By April 30, 2008, his surgeon, John F. Ball, M.D., noted that the wound was well
healed, that the range of motion was “coming along,” and that Mr. Brown would need to

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return for treatment only as needed. (Tr. 333) Mr. Brown testified that he had to keep
his leg elevated after sitting for thirty minutes, but there is no objective medical evidence
to support this self-imposed limitation. (Tr. 32-33)
Even so, the ALJ limited Mr. Brown, who was a “younger individual” under the
Act, to sedentary work. Sedentary work, by definition, includes a significantly restricted
range of work.5 Individuals who are limited by their medical impairments to performing
only sedentary work have serious functional limitations. Social Security Ruling 96-9p,
1996 WL 374185 at *3. By limiting Mr. Brown – a younger individual – to sedentary
work, the ALJ adequately accounted for Mr. Brown’s ankle pain and swelling, even
though there was scant objective medical evidence of serious on-going ankle problems.
V.

Conclusion:
Considering all of the evidence in the record as a whole, there is ample evidence

to support the finding that Mr. Brown was not disabled, for purposes of the Social
Security Act. Accordingly, the Commissioner’s decision is AFFIRMED.
DATED this 4th day of January, 2012.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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“Sedentary” work involves lifting no more than ten pounds at a time and
occasionally lifting/carrying articles like docket files, ledgers, and small tools. 20
C.F.R. § 416.967(a)
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