Tipton v. Social Security Administration
ORDER affirming the decision of the Commissioner and denying the 2 Complaint filed by Shawn D Tipton. Signed by Magistrate Judge Jerome T. Kearney on 12/20/12. (kpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
Shawn David Tipton
Michael J. Astrue, Commissioner,
Social Security Administration,
Cause No. 4: 11‐CV‐661‐JTK
ORDER AFFIRMING THE COMMISSIONER’S DECISION
Shawn David Tipton sought judicial review of the denial of his applications for
disability income benefits and supplemental security income.1 Tipton alleged he became
unable to work at age 34 because of a motor vehicle accident.2 Throughout the
administrative case, he consistently reported that he received intensive care for up to five
days.3 In actuality, he was observed overnight and released the following day.4 Tipton
initially based disability on headaches, dizziness, vision problems, and nausea, allegedly
See docket entry # 2 (complaint).
SSA record at p. 163.
Id. at p. 187; p. 285; p. 289; p. 297 & p. 334.
Id. at pp. 269‐70.
caused by the accident;5 he later added back pain, neck pain, and depression.6
The Commissioner’s decision. After considering Tipton’s applications, the
Commissioner’s ALJ determined that although Tipton had severe impairments— essential
hypertension, headaches, mood disorder and learning disorder7—Tipton had the residual
functional capacity (RFC) to do a reduced range of light work.8 Because a vocational expert
identified jobs a person with Tipton’s RFC could do,9 the ALJ concluded that Tipton was
not disabled under the Social Security Act.10 After the Appeals Council denied Tipton’s
request for review,11 the ALJ’s decision became a final decision for judicial review.12 Tipton
filed this case to challenge the ALJ’s conclusion.
Development of the record. This case is remarkable for the absence of medical
Id. at p. 163.
Id. at pp. 228, 231 & 240.
Id. at p. 17.
Id. at p. 19.
Id. at p. 50 (identifying jobs of machine tender, production assembly worker and
Id. at p. 22.
Id. at p. 1.
See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating that “the Social
Security Act precludes general federal subject matter jurisdiction until administrative
remedies have been exhausted” and explaining that the Commissioner’s appeal
procedure permits claimants to appeal only final decisions).
evidence of disabling impairment. Tipton argued that the ALJ should have ordered
neurological, neuropsychological, and orthopedic exams to provide evidence about his
alleged headaches, memory problems, head‐injury residuals, and musculoskeletal
problems.13 He maintained the ALJ erred in developing the administrative record.
The ALJ has a duty to fairly and fully develop the record as to the matters at issue.14
[T]his duty is not never‐ending and an ALJ is not required to disprove every
possible impairment. 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.15
The evidence in this case provided sufficient medical evidence to determine whether
Tipton was disabled because the record contained medical evidence about complaints of
headaches, memory, head‐injury residuals, and musculoskeletal problems.16
Treatment records for the motor vehicle accident. The emergency room treatment
records for injuries sustained in the motor vehicle accident characterized Tipton’s injuries
as “significant facial trauma,” “swelling of his face, and “tenderness of his scalp.”17 The
emergency room treatment notes stated that Tipton was driving an all terrain vehicle when
Docket entry # 10, pp. 13‐15.
Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1973).
McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011) (citations omitted).
SSA record at pp. 272‐73 & 276‐78 (normal CT scans of right knee, brain, face,
neck, chest, abdomen and pelvis).
Id. at p. 269.
he was struck.18 After Tipton complained about a headache, the emergency room physician
ordered a second CT scan of Tipton’s brain and neck; the CT scans were negative.19 The
physician found no neurological symptoms.20 The treatment notes were highly probative
of Tipton’s allegations about headaches, memory, head‐injury residuals because his
applications flowed from the accident. The treatment records did not suggest a need for
a neurological, neuropsychological, or orthopedic exam because there were no neurological
findings and no cranial injury.
Two weeks after the accident, Tipton sought treatment for headaches, nausea and
vision problems.21 He reported being struck by a car as a pedestrian and being treated for
3 to 4 days.22 The treating physician reviewed the emergency room treatment notes and
observed that upon arrival at the emergency room Tipton was intoxicated and tested
positive for marijuana.23 The physician described Tipton’s eyes as “bloody looking” and
recommended an ophthalmologist. She prescribed an anti‐biotic for a boil on Tipton’s
knee, a pain medication, and an anti‐nausea medication. As impairment, the physician
Id. at pp. 270 & 274.
Id. at p. 273.
Id. at p. 269.
Id. at p. 285.
Id. at pp. 269 & 285.
found only a “mild decrease in range of motion [in the neck] but no severe tenderness.”24
The physician’s observations were highly probative of Tipton’s allegations because he
based disability on impairments that allegedly flowed from the motor vehicle accident.
The physician’s treatment record did not suggest a need for a neurological,
neuropsychological, or orthopedic exam because the physician found only a mild decrease
in range of motion in the neck.
Two weeks later, Tipton had an eye exam. The exam was normal. The examiner
found “no evidence of lasting injury.”25 The examiner referred Tipton to UAMS Medical
Center for a neurology consult for complaints about headaches, memory loss, and sleep
disturbance after the motor vehicle accident.26 The eye exam was highly probative of
Tipton’s allegation of vision problems because the exam revealed no vision problems. The
neurology referral was highly probative of Tipton’s allegations of headaches and memory
loss because Tipton did not pursue the referral. The failure to pursue the referral
undermines Tipton’s argument about development of the record for at least two reasons:
(1) Tipton reported that his employer told him he could not return to work without a
Id. at p. 285.
Id. at p. 261.
Id. at p. 262.
release from a neurologist,27 and (2) Tipton had the burden of providing medical evidence
to prove disability.28
Evidence about musculoskeletal complaints. Twenty‐one months after the motor
vehicle accident, Tipton’s attorney arranged for a physical examination. Tipton
complained about neck pain and low back pain radiating down the right leg.29 Tipton did
not complain about vision.30 The examining physician ordered MRIs of the neck and lower
back. The MRI of the neck showed mild degenerative changes with mild stenosis at C5/6.31
The MRI of the lumbar spine showed mild degenerative changes in the lower lumbar spine,
a mild diffuse bulge with left annular tear and mild right and moderate left neural
foraminal narrowing at L4/5,32 a mild bone spur at L5/S1 with moderate bilateral neural
foraminal narrowing, and mild canal stenosis at L4/5 and L5/S1. The characterization of
the radiological findings as “mild” negated the need for a neurological or orthopedic exam.
Id. at p. 163.
Bowen v. Yuckert, 482 U.S. 137, 147 n.5 (1987) (“It is not unreasonable to require
the claimant, who is in a better position to provide information about his own medical
condition, to do so.”).
SSA record at p. 334.
Id. at p. 332 (complaining about allergies) & p. 334 (complaining about
depression, migraines, and pain in the neck and back).
Id. at p. 328.
Id. at p. 331.
Evidence of mental decompensation. To the extent Tipton complained about
evidence of mental decompensation, the evidence did not suggest a need for a
neuropsychological exam. Tipton reported no in‐patient mental health treatment when he
applied for disability.33 Reporting in‐patient mental health treatment may have triggered
a need to seek out past mental health records.
In addition, there was no evidence Tipton suffered cognitive deficits from head
injury. The ALJ ordered a psychological examination. The examiner provided a detailed
report, but reported no cognitive deficits. No evidence required a neuropsychological
“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.”34 The record provided sufficient medical evidence to determine
whether Tipton was disabled. The ALJ was not required to act as Tipton’s substitute
counsel, but only to develop a reasonably complete record.35 The record in this case was
reasonably complete. The ALJ did not err.
Id. at p. 165 (listing eye examination at UAMS; office visit with Dr. Seme for
headaches, dizziness, eye problems and nausea; and emergency room treatment); p. 186
(adding counseling and medication services).
Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994).
Clark v. Shalala, 28 F.3d 828, 830‐31 (8th Cir. 1994).
Spine injuries. Tipton contended the ALJ erred at step two of the disability‐
determination process by not finding his spinal injuries were severe.36 Step two requires
the claimant to show a severe impairment, but it does not require the ALJ to explicitly
discuss every impairment in an administrative opinion. Step two directs a conclusion of
“non‐disabled” if the claimant fails to prove a severe impairment such that the process
weeds out claimants whose abilities to work are not significantly limited.37 If the claimant
meets his burden, the regulations permit the claimant to proceed to the next step of the
If the claimant meets his step‐two burden, there can be no reversible error where the
record shows the ALJ considered all of the claimant’s impairments. The record in this case
shows the ALJ considered all of Tipton’s impairments because the ALJ reduced his RFC.
Tipton cannot show harm at step two because he proceeded to the third step and because
the reduction in RFC accommodated limitations flowing from his impairments.
Credibility. The ALJ discounted the credibility of Tipton’s statements about the
intensity, persistence, and limiting effects of his alleged symptoms.38 Tipton maintained
Docket entry # 10, p. 15.
Bowen v. Yuckert, 482 U.S. 137, 156‐57 (1987) (O’Connor, J., concurring)
(concurring and stating that the Social Security Act authorizes the Commissioner to
weed out applications by claimants who cannot possibly meet the statutory definition of
disability at step two of the disability‐determination process).
SSA record at p. 20.
the ALJ failed to do a credibility assessment or provide good reasons for discounting his
An ALJ has a statutory duty “to assess the credibility of the claimant….”39 To
evaluate Tipton’s credibility, the ALJ followed the required two‐step process40 and
considered the required factors.41 Thus, the question before the court is whether substantial
evidence supports the ALJ’s credibility assessment.
In assessing Tipton’s credibility, the ALJ relied on the absence of neurological
symptoms, the normal eye exam, and the failure to seek medical attention from December
2008 to February 2010. These considerations were good reasons for discounting Tipton’s
initial allegations of disabling headaches, dizziness, vision problems, and nausea.
Substantial evidence42 supported those reasons because the record included a physical
Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992).
See Policy Interpretation Ruling Titles II & XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s Statements, SSR 96‐7p (July 2, 1996).
In considering the credibility a claimant’s subjective complaints, an ALJ must
consider: (1) the claimant’s prior work record; (2) observations by third parties and
treating and examining physicians relating to such matters as: (a) the claimant’s daily
activities; (b) the duration, frequency and intensity of the pain; (c) precipitating and
aggravating factors; (d) dosage, effectiveness and side effects of medication; and (e)
functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
See Britton v. Sullivan, 908 F.2d 328, 330 (8th Cir. 1990) (“Substantial evidence
‘means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’”) (internal citation omitted).
exam without neurological findings, an eye exam without vision problems, and a record
reflecting no medical treatment from December 2008 to February 2010. That evidence was
highly probative because Tipton based disability on headaches, dizziness, vision problems,
and nausea flowing from the motor vehicle accident. A reasonable mind would consider
the evidence as adequate to support the conclusion that Tipton’s allegations of disabling
headaches, dizziness, vision problems, and nausea were not fully credible.
To the extent Tipton later complained about neck and back pain, Tipton cannot
show harm from the failure to explicitly discuss medical evidence about spinal injury
because the MRIs reflected no disabling impairment.
RFC. Although the medical evidence did not substantiate Tipton’s allegations, the
ALJ included nonexertional limitations to accommodate limitations flowing from problems
with headaches, dizziness, and reaching. Nevertheless, Tipton asserted that the ALJ pulled
the RFC out of thin air. He argued that the RFC was not supported by any treating or
“A claimant’s RFC represents the most he can do despite the combined effects of all
of his credible limitations and must be based on all credible evidence.”44 “Medical records,
physician observations, and the claimant’s subjective statements about his capabilities may
Docket entry # 10, p. 16.
McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011).
be used to support the RFC.”45
The RFC in this case was supported by medical records, physician observations, and
Tipton’s subjective statements. The spinal MRIs supported the reduction in RFC to light
work. The MRIs also supported restricting work to occasional overhead reaching. Tipton’s
complaints about headaches and dizziness supported the restriction to work without
concentrated vibrations, hazards, or unprotected heights. The mental evaluation46
supported the restriction to work involving simple, routine and repetitive tasks, and
limited contact with the general public. Nothing supported a further reduction. A
reasonable mind would accept the evidence as adequate to support the conclusion that
Tipton could perform a reduced range of light work. The ALJ did not err in establishing
Conclusion. Substantial evidence supports the ALJ’s decision denying Tipton’s
applications. The ALJ made no harmful legal error. For these reasons, the court DENIES
Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
The examining psychologist placed Tipton in the borderline range of
intellectual functioning. He diagnosed mood disorder NOS, learning disability, alcohol
dependence, and personality disorder. The examiner reported that Tipton seemed
capable of comprehending and/or carrying out simple instructions, and that he
demonstrated some impairment in ability to carry out complex instructions. The
examiner opined that Tipton was mildly limited in the ability to cope with the typical
demands of basic work like tasks, but reported that he demonstrated no difficulty in
sustaining persistence in completing tasks. The examiner opined that Tipton seemed
capable of completing tasks within acceptable time frames. SSA record at p. 300.
Tipton’s request for relief (docket entry # 2) and AFFIRMS the decision denying the
It is so ordered this 20th day of December, 2012.
United States Magistrate Judge
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