Kemp v. Social Security Administration
ORDER AFFIRMING THE COMMISSIONER. The decision of the ALJ is hereby affirmed. Signed by Magistrate Judge Beth Deere on 5/5/2017. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
o/b/o CHARLES KEMP
NANCY A. BERRYHILL, Acting Commissioner,
Social Security Administration
ORDER AFFIRMING THE COMMISSIONER
Charles Kemp filed an application for social security disability benefits with an
amended alleged onset date of January 1, 2007. (R. at 27–28). The administrative law
judge (ALJ) held a hearing, after which he denied the application. (R. at 20). The Appeals
Council denied review. (R. at 297).
Vickie Kemp filed a Notice Regarding Substitution of Party Upon Death of
Claimant on November 21, 2011. (R. at 353). She thereafter sought judicial review. (R. at
304–05). The district court affirmed the Commissioner’s denial of benefits. (R. at 308–
11). The Eighth Circuit, however, vacated the district court judgment and remanded the
case for further proceedings. (R. at 312–16).
After a second hearing, the ALJ again denied the application. (R. at 265). The
Appeals Council denied Ms. Kemp’s request for review. (R. at 244). The second ALJ’s
decision is now the final decision of the Commissioner, and it is from this decision that
Ms. Kemp has requested judicial review.
The Commissioner’s Decision
The ALJ found that Mr. Kemp had the following severe impairments:
osteoarthritis, anxiety disorder NOS, depressive disorder NOS, borderline intellectual
functioning, and hernias. (R. at 257). The ALJ found that, during the relevant time period,
Mr. Kemp had the residual functional capacity (RFC) to perform sedentary work, except
that he could only occasionally stoop, crouch, crawl, and kneel; could only occasionally
reach overhead with his dominant upper extremity; could perform work where
interpersonal contact is incidental to the work performed, defined as interpersonal contact
requiring a limited degree of interaction, such as meeting and greeting the public,
answering simple questions, accepting payment, and making change; could work only in
jobs where the complexity of tasks is learned by demonstration or repetition with 30
days, with few variables and little judgment; and where the work would require only
simple, direct, and concrete supervision. (R. at 260). After taking testimony from a
vocational expert (VE), the ALJ found that the RFC precluded Mr. Kemp’s past relevant
work. (R. at 263). The VE testified, however, that Mr. Kemp was able to perform jobs
such as table worker and printed circuit board checker. (R. at 264). As a result, the ALJ
held that Mr. Kemp was not disabled during the relevant time. (R. at 265)
The Court reviews the record to determine whether substantial evidence on the
record as a whole supports the Commissioner’s findings. Prosch v. Apfel, 201 F.3d 1010,
1012 (8th Cir. 2000). “Substantial evidence” in this context means “enough that a
reasonable mind would find it adequate to support the ALJ’s decision.” Slusser v. Astrue,
557 F.3d 923, 925 (8th Cir. 2009) (citation omitted).
Ms. Kemp argues that the ALJ failed to properly account for Mr. Kemp’s
borderline intellectual functioning in the RFC and she disputes whether Mr. Kemp could
have sat for the duration required for sedentary work.
As to the first argument, the ALJ limited Mr. Kemp to work that could be learned
by demonstration or repetition within 30 days, with few variables and requiring little
judgment. The ALJ further required simple, direct, and concrete supervision. (R. at 260).
Ms. Kemp argues that the ALJ should have included limitations on understanding,
remembering, or following work instructions and a limitation to simple work. This
argument is unavailing. The limitations that the ALJ provided account for borderline
intellectual functioning, and Ms. Kemp does not demonstrate how those limitations fail to
Ms. Kemp also argues that Mr. Kemp could not sit for the requisite time to
perform sedentary work, noting that a consultative examiner had stated that Mr. Kemp
had moderate limitations in his ability to sit. (R. at 212). Mr. Kemp had also testified that
he could sit for a maximum of 15 to 20 minutes during the first hearing on May 28, 2010.
(R. at 38). The consultative examiner provided no detail in the limitation, however, and it
is not possible to tell from the examiner’s notes how long Mr. Kemp could sit.
Additionally, Mr. Kemp did not take any medication for his conditions, which suggests
that his discomfort was tolerable. (R. at 204). In fact, the record contains no medical
treatment records at all, which results in a very limited body of evidence. It is the
claimant’s burden to prove the RFC. Ingram v. Chater, 107 F.3d 598, 601 (8th Cir.
When it is possible to draw different conclusions from evidence in the record, the
Court must affirm if substantial evidence on the record as a whole supports the ALJ’s
decision. Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015). In this case, substantial
evidence on the record as a whole supports the ALJ’s decision.
A reasonable mind would find that the evidence is adequate to support the ALJ’s
decision. The RFC sufficiently accounted for Mr. Kemp’s borderline intellectual
functioning and all other medically determinable impairments. The decision of the ALJ is
It is so ordered, this 5th day of May, 2017.
UNITED STATES MAGISTRATE JUDGE
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