Robinson v. Social Security Administration
ORDER affirming the decision of the Commissioner. The ALJ made no legal error. Mr. Robinson's request for relief is denied. Signed by Magistrate Judge Beth Deere on 12/8/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO.: 3:15CV00078 BD
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
Plaintiff Eddie Robinson has appealed the final decision of the Commissioner of
the Social Security Administration denying his claim for supplemental security income.
Both parties have submitted appeal briefs and the case is ready for decision.1
The Court’s function on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole and free of legal
error. Papesh v. Colvin, __ F.3d __, 2015 WL 3396586, at *4 (8th Cir. 2015); see also 42
U.S.C. §§ 405(g). Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389,
401 (1971); Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir. 2012). In assessing the
substantiality of the evidence, the Court has considered evidence that detracts from the
Commissioner’s decision as well as evidence that supports it.
Mr. Robinson alleged he became limited in his ability to work because of a back
condition, right shoulder bursitis, and arthritis in his knees. (SSA record at 113) After
The parties have consented to the jurisdiction of the Magistrate Judge. (Docket
conducting a hearing, the Administrative Law Judge2 (“ALJ”) concluded that Mr.
Robinson had not been under a disability within the meaning of the Social Security Act at
any time since May 23, 2012, the date the application was filed. (Id. at 17) On February
20, 2015, the Appeals Council denied the request for a review of the ALJ’s decision,
making the ALJ’s decision the final decision of the Commissioner. (Id. at 1-3) Mr.
Robinson then filed his complaint initiating this appeal. (Docket #2)
At the time of the hearing, Mr. Robinson was 43 years old and lived with his sister.
(Id. at 24, 26) He had a high school education and had served two years in the army,
from which he was honorably discharged. (Id. at 25) He testified that he was able to take
care of his personal needs, help his sister with chores, and watch his sister’s two-year-old
son while she worked full time. (Id. at 26-28) He was not taking any medication for his
impairments at the time of the hearing. (Id. at 26)
The ALJ found that Mr. Robinson had not engaged in substantial gainful activity
since the application date. (Id. at 13) He found that Mr. Robinson had the “severe”
impairment of degenerative disc disease of the lumbar spine with radiculopathy. (Id. at
13) He further found that Mr. Robinson did not have an impairment or combination of
impairments that met or equaled a Listing. (Id. at 13-14) He judged that Mr. Robinson’s
allegations regarding the intensity, persistence, and limiting effects of his symptoms were
not totally credible. (Id. at 14-16) Based on his findings, the ALJ concluded that during
The Honorable Kevin T. Alexander.
the relevant time period Mr. Robinson retained the residual functional capacity (“RFC”)
for light work, except that he could not climb ladders, ropes, or scaffolds; could not work
at unprotected heights; and could only occasionally climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl. (Id. at 14)
The ALJ found that Mr. Robinson had no past relevant work. Based on testimony
from a vocational expert, the ALJ concluded Mr. Robinson could perform jobs available
in the national economy, such as shoe hand packer and poultry picker. (Id. at 16-17)
Thus, the ALJ concluded that Mr. Robinson was not disabled. (Id. at 17)
Adequacy of the Record
Mr. Robinson complains that the ALJ erred by not ordering a consultative
examination. The ALJ has a duty to fairly and fully develop the record as to the matters
at issue, but “[t]he burden of persuasion to prove disability and to demonstrate RFC
remains on the claimant, even when the burden of production shifts to the Commissioner
at step five.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). In order to meet the
heavy burden of showing the record has been inadequately developed, Mr. Robinson must
show both a failure to develop necessary evidence and unfairness or prejudice resulting
from that failure. Combs v. Astrue, 243 Fed.Appx. 200, 204 (8th Cir. 2007). Mr.
Robinson has not met his burden.
“The ALJ is required to order medical examinations and tests only if the medical
records presented to him do not give sufficient medical evidence to determine whether the
claimant is disabled.” Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir.1994). In this case,
the ALJ had sufficient medical evidence, including treatment notes, opinion evidence, and
Mr. Robinson’s testimony, from which to determine disability. (SSA record at 25-31,
162-63, 165-72, 174-78, 191-200, 203-04, 205-11)
On December 12, 2011, Mr. Robinson reported to St. Bernards Medical Center
after injuring his lower back while arm wrestling. He complained of some burning pain
in his right thigh, but he was walking without difficulty. Randy McComb, M.D.,
diagnosed mechanical low back pain. He prescribed Ketoprofen and referred him to Dr.
John Campbell. (Id. at 174-78)
Mr. Robinson returned to St. Bernards two days later stating that he could not
afford the doctor he had been referred to and complaining of increased pain. On
examination, he had full range of motion in his shoulders, and he was in no apparent
distress. Elliot Landfield, M.D., ordered a shoulder x-ray and CT scan of Mr.
Robinson’s lumbar spine without contrast. (Id. at 164-69) Richard R. Reinholtz, M.D.,
read the scan and found “right foraminal broad-based disc bulge at L4-L5 likely results in
right L4 radiculopathy.” (Id. at 172) An x-ray of Mr. Robinson’s shoulder was
unremarkable. (Id. at 170) Dr. Landfield diagnosed lumbar radiculopathy and shoulder
pain. He prescribed Acetaminophen with Codeine, Cyclobenzaprine, and Prednisone, and
advised Mr. Robinson to go to ARcare with $20 and proof of income to consult with a
neurosurgeon. (Id. at 165-69) There is no evidence Mr. Robinson ever followed up at
On January 31, 2012, Terry D. Hunt, M.D., performed an MRI of Mr. Robinson’s
lumbar spine without contrast. He concluded Mr. Robinson had a “[d]isc bulge at L4-L5
slightly eccentric to the right side,” but he had “[n]o severe nerve root compression.” (Id.
While Mr. Robinson stated he was unable to afford medication and treatment, the
record indicates that he continued to smoke cigarettes and marijuana.3 (Id. at 157, 167,
181) Smoking is an expensive, ongoing habit that can be considered when weighing Mr.
Robinson’s credibility. Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999)(rejecting
claimant’s position that he could not afford medication when “there is no evidence to
suggest that he sought any treatment offered to indigents or chose to forgo smoking
cigarettes to help finance pain medication.”). This is especially true where, as here, Dr.
Landfield made Mr. Robinson aware that there was a clinic in the area that would treat
him for as little as $20.00.
There is no evidence Mr. Robinson sought additional treatment for back pain.
When Mr. Robinson was examined by Carroll D. Johnson, M.D., at St. Bernards in
During an October, 2011 visit to St. Bernards, Mr. Robinson admitted to daily
marijuana use. (Id. at 181) And during visits to St. Bernards on December 14, 2011, and
February, 2012, Mr. Robinson admitted to occasional marijuana use. (Id. at 167, 157)
He also reported smoking cigarettes. (Id. at 157, 167, 181)
February 2012 with bronchitis, he did not report a history of musculoskeletal problems.
In reports submitted to the Commissioner in August and October 2012, Mr. Robinson
reported that he had not sought treatment and was not taking any medication for his
alleged impairments. (Id. at 125, 132) At the hearing, he claimed that he sometimes
obtained medication from “other people .” (Id. at 30-31)
While Mr. Robinson mentioned during his testimony at the hearing that a
“physical” might help him show his ailments better (Id. at 28, 31), his attorney never
requested that Mr. Robinson be sent for a consultative examination. (Id. at 23-24, 34)
Further, Mr. Robinson does not state how he might be limited beyond the ALJ’s RFC
finding. There was ample evidence in the record for the ALJ to make a disability
Substantial evidence supports the ALJ’s decision denying Mr. Robinson’s
application for benefits. The ALJ made no legal error. For these reasons, Mr. Robinson’s
request for relief (#2) is DENIED and the decision denying the application for benefits is
DATED this 8th day of December, 2015.
UNITED STATES MAGISTRATE JUDGE
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