Stees v. Social Security Administration
MEMORANDUM OPINION AND ORDER AFFIRMING the decision to deny Mr. Stees's applications; judgment will be entered accordingly. Signed by Magistrate Judge Beth Deere on 10/17/12. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DALE A. STEES
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration
MEMORANDUM OPINION AND ORDER
Dale A. Stees sought judicial review of the denial of his applications for disability
insurance benefits and supplemental security income.1 Mr. Stees last worked as a
cashier at a gas station convenience store.2 He lost the job when he was arrested for a
probation violation and sent to jail for 40 days.3 Mr. Stees maintains he was terminated
because he had a seizure on the job two months before the arrest.4
Shortly after losing his job, Mr. Stees applied for disability benefits based on
epileptic seizures and vascular disease.5 He reported that he stopped working because
See docket entry # 2 (complaint).
SSA record at pp. 178 & 199.
Id. at p. 399.
Id. at p. 399. See also id. at p. 42.
Id. at p. 176.
of those conditions.6 He maintained that no company would hire him because of his
epilepsy.7 He also reported that he was unable to walk more than one or two blocks
due to vascular disease.8 Mr. Stees’s medical records do not document a diagnosis of
either epilepsy or vascular disease. The record established diagnoses for seizure
disorder, mood disorder, and substance abuse.
After considering Mr. Stees’s applications, the Commissioner’s ALJ determined
that although Mr. Stees had severe impairments—a seizure disorder and mood
disorder9—he had the residual functional capacity (RFC) to do light work, with
specified nonexertional limitations.10 The ALJ consulted a vocational expert about
available jobs for that RFC. Because the vocational expert identified available jobs, the
ALJ concluded that Mr. Stees was not disabled under the Social Security Act.11 After the
Id. at p. 190.
Id. at pp. 37 & 231.
Id. at p. 10.
Id. at p. 12. The ALJ identified the following nonexertional limitations:
Mr. Stees must avoid hazards such as unprotected heights and moving machinery; he
could not climb ropes, ladders or scaffolds; and he must perform work where
interpersonal contact is incidental to work performed, complexity of tasks was learned
and performed by rote with few variables and required little judgment, and supervision
is simple, direct and concrete.
Commissioner’s Appeals Council denied Mr. Stees’s request for review, the ALJ’s
decision became a final decision for judicial review.
Mr. Stees raises a multifarious issue challenging the ALJ’s conclusion. He
maintains that the conclusion is not supported by substantial evidence by focusing on
the assessment of his credibility and the development of the record.
Credibility. The ALJ questioned Mr. Stees’s credibility and Mr. Stees
understandably takes particular offense to the ALJ’s reference to “his apparent effort to
generate evidence for his application and appeal.”12 An ALJ has a statutory duty “to
assess the credibility of the claimant.”13 Here, in evaluating Mr. Stees’s credibility, the
ALJ followed the required two-step process14 and considered the required factors.15
Docket entry # 13, pp. 2-3. See SSA record at 16 (explaining why the ALJ
afforded some, but not substantial weight to opinion evidence).
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,
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).
Thus, the question before the court is whether substantial evidence supports the ALJ’s
The medical evidence contained numerous indications that Mr. Stees sought to
generate medical evidence to support his applications. For example, Mr. Stees reported
having seizures for 20 years, but did not apply for disability benefits until he lost his job.
At that time, Mr. Stees lived in Illinois. A seizure that occurred two months before the
job lost—on January 14, 2012—appears to underlie the allegation of disability due to
epilepsy.16 Three months earlier, Mr. Stees had presented to a hospital emergency
room, reported that he “might” have had a seizure, but refused treatment, and left.17
During the visit, he stated that he had not had a seizure for 10 years.18
Three months later, Mr. Stees was discovered unresponsive at his job.19 EMS
took him to a hospital emergency room, where he reported a history of seizures and
explained that he had not been taking anti-convulsant medication “recently.”20 The
SSA record at p. 290.
Id. at p. 286 (Oct. 3, 2009).
Id. at p. 291 (Jan. 14, 2010).
Id. at p. 305.
treating physician diagnosed seizure disorder, prescribed an anti-convulsant
medication, and discharged Mr. Stees.21
In a followup visit, the treating physician referred Mr. Stees to a non-profit
community health center for indigent patients.22 Two weeks later, Mr. Stees had not
gone to the clinic and complained to the same physician that he could not afford his
anticonvulsant medication.23 Two months later, he applied for disability benefits,
without establishing care at the non-profit clinic. The failure to seek treatment for his
seizure disorder, despite available indigent care, weighs heavily against Mr. Stees’s
credibility because such inaction is inconsistent with an allegation of a disabling
Mr. Stees’s next effort was to establish care at an Illinois Veterans Administration
(VA) clinic.25 (Mr. Stees’s eligibility flowed from six months of post-Vietnam service at
age 19.26) At the time, Mr. Stees was 49 and living at a rescue mission. He reported to a
Id. at p. 306.
Id. at p. 318 (Jan. 28, 2010).
Id. at p. 317 (on Feb. 18, 2010).
Accord Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988) (“A failure to seek
aggressive treatment is not suggestive of disabling back pain.”).
SSA record at p. 399 (June 3, 2010).
Id. at p. 124.
VA health care provider that he was filing for social security disability.27 The VA
provided him with the previously prescribed anticonvulsant medication.28 Filing for
social security disability benefits without seeking indigent care beforehand suggests
that he sought care at the VA to further his applications.
Two weeks later, Mr. Stees met with a mental health worker. He stated that he
was depressed and had once been hospitalized at a state mental hospital for suicidal
ideation while intoxicated.29 But Mr. Stees sought assistance with housing, not for
mental health treatment.
A few weeks later, Mr. Stees was ejected from the rescue mission for threatening
African-American employees and taking an unknown quantity of Tylenol in a stated
suicide attempt.30 EMS took Mr. Stees to a local hospital where he was monitored.
After he was stabilized, he was transferred31 to the state mental hospital where he
refused treatment, stating that he wanted to return to the VA clinic.32 The psychiatrist
who attempted to examine Mr. Stees opined that Mr. Stees had a mood disorder, with
Id. at p. 401 (June 3, 2010).
Id. at p. 402 (June 3, 2010).
Id. at p. 389 (June 17, 10).
Id. at p. 457 (July 5, 2010).
Id. at p. 457-59 (July 5, 2010).
Id. at p. 441 (July 7, 2010).
narcissistic and antisocial traits.33 After Mr. Stees calmed down, the state mental
hospital discharged him.34 Refusing treatment, while professing to be suicidal, suggests
Mr. Stees sought to further his applications.
The week after his discharge from the state mental hospital, Mr. Stees returned to
the VA clinic.35 There, he was prescribed an anti-depressant. Mr. Stees reported
significant benefit from the anti-depressant.36 He met with VA mental health providers
a couple of more times37 before being taken to a local emergency room.38 Mr. Stees
could not explain how he got there and stated that he must have had a seizure.39
Medical staff cleaned his nostrils and discharged him.40
Id. (discharged on July 8, 2010)
Id. at p. 370 (July 16, 2010).
Id. at p. 365 (July 21, 10).
Id. at p. 356 (Aug. 5, 2010), p. 350 (Aug. 10, 2010) & p. 472 (Aug. 18, 2010).
During the Aug. 10, 2010 visit, Mr. Stees reported that he had contacted an attorney to
file for disability benefits for “medical” reasons.” Id. at p. 351.
Id. at p. 454 (Aug. 24, 2010).
Id. at p. 454.
Id. at p. 455.
After the emergency room visit, Mr. Stees returned to the VA clinic a couple of
more times,41 drifted for a few months,42 and then called his sister for assistance.43 His
sister paid for a bus ticket so he could travel to Arkansas. He moved in with his sister
and her family.
After a few months in Arkansas, he contacted a VA clinic in Fayetteville,
Arkansas.44 He reported that he was trying to get social security disability benefits and
that his lawyer told him the clinic was the place to go.45 The clinic provided him with
his anticonvulsant.46 The delay in contacting the Arkansas VA clinic, and the
announcement about social security benefits, weigh against Mr. Stees’s credibility
because it suggests that Mr. Stees sought to further his applications, not obtain
Id. at pp. 347 (Aug. 18, 2010) & 415 (Oct. 18, 2010).
Id. at p. 527 (explaining how he got to Arkansas). An Arkansas VA treatment
note indicates Mr. Stees was in Madison, Wisconsin, during the drifting time period.
See id. at p. 524.
Id. at p. 600 (sister explaining that in Feb. 2011, Mr. Stees called from Illinois,
stated he was suicidal, and asked to move in with her).
Id. at p. 502 (June 2, 2011).
Id. at p. 499.
Id. at p. 501.
Five weeks later, Mr. Stees got into a fight with his sister and was asked to leave.
He left the home, sat on the edge of the street, and started taking his depression
medication in a stated suicide attempt.47 EMS took Mr. Stees to a hospital emergency
Upon arrival, Mr. Stees was combative. He reported “he had nothing to live
for.”48 The emergency room physician reported that a CT of Mr. Stees’s head was
normal, and lab results were normal, except that Mr. Stees was positive for marijuana
use.49 After calming down, Mr. Stees wanted to leave and go to the drop-in shelter.50
Instead, he was transferred to a VA hospital in Little Rock.
During the resultant hospitalization, Mr. Stees told multiple health care
providers he was there for disability benefits.51 Despite Mr. Stees’s alleged difficulty
with walking, hospital staff observed Mr. Stees “frequently up ambulating in hallways
with steady gait and without diff[iculty].”52 Rather than exhibiting depression, staff
Id. at p. 526 (July 14, 2011).
Id. at p. 524.
Id. at p. 527. See also p. 532 (telling admitting physician that he had a court
hearing later in the month and that he wanted to go to the drop-in shelter).
Id. at p. 532.
Id. at p. 550 & 557.
Id. at p. 555 (July 19, 2011).
members described Mr. Stees as “demonstrat[ing] a bright affect evidenced by him
smiling, laughing and joking appropriately.”53 Mr. Stees appeared in good spirits, and
interacted and joked appropriately with staff and peers.54 His only apparent concern
was his social security hearing scheduled for the following week.55 The temporal
proximity between the stated suicide attempt and the scheduled hearing suggests Mr.
Stees sought to further his applications.
The medical records also evidenced a temporal proximity between efforts toward
treatment and the administrative proceedings in this case. For example, Mr. Stees
established care at the VA after he applied for benefits.56 He sought no mental health
treatment until his applications were denied.57 He received no treatment for depression
for months, but contacted a VA clinic for mental health treatment after his applications
were denied on reconsideration.58 He reported a suicide attempt two weeks before his
Id. at p. 549 (July 19, 2011).
Id. at p. 555.
Id. (expressing concern on July 19, 2010 about his hearing scheduled for July 28,
Compare id. at pp. 124 & 131 (applying for disability benefits on Apr. 12, 2010),
with id. at p. 399 (seeking VA assistance on June 3, 2010).
Compare id. at pp. 54-55 (denying applications initially on July 8, 2010), with id.
at p. 370 (participating in psychiatric intake at VA on July 16, 2010).
Compare id. at pp. 56-57 (denying applications on reconsideration on Oct. 10,
2010), with id. at p. 501 (obtaining anti-depressant prescription at VA on June 2, 2011).
scheduled hearing. While the evidence is not conclusive, a reasonable mind would
accept the evidence as adequate to indicate that Mr. Stees sought to generate evidence
for his applications and an appeal.59 As such, the evidence constitutes substantial
evidence supporting the ALJ’s credibility assessment.
A reviewing court “will defer to an ALJ’s credibility finding as long as the ALJ
explicitly discredits a claimant’s testimony and gives a good reason for doing so.”60 The
ALJ in this case explicitly discredited Mr. Stees’s statements and provided good reasons
for doing so.61 The ALJ did not err.
Development of the record. In complaining about the development of the
record, Mr. Stees asserts that the ALJ should have sought an opinion from a treating
psychiatrist or ordered a consultative mental exam. Mr. Stees complains that the ALJ
gave little weight to a note written on a prescription slip by a treating VA psychiatrist.
The note read as follows: “The veteran is unable to work due to both PTSD, depression,
pain related problems. He is to be left alone with reference to work until stable. He will
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) .
Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010) (citation omitted).
As other reasons, the ALJ cited the failure to pursue recommended medical
treatment, the role substance abuse may have played in his alleged psychiatric issues,
and his willingness to engage in illegal acts. SSA record at pp. 15-16.
be seen again on the 30th.”62 This note is conclusory because it suggests that Mr. Stees
was unable to work but provides no diagnostic evidence of the nature or severity of Mr.
Stees’s mental health. “A conclusory letter diagnosing a claimant as disabled without
supporting evidence does not amount to substantial evidence of disability.”63
Moreover, the psychiatrist’s treatment notes do not support the content of the
note. Although the record contained no treatment note for the day the note was
written, a treatment note written three weeks earlier diagnosed depression, but not
PTSD.64 The psychiatrist reported that Mr. Stees had relapsed in drinking and had
sought “any help that he can get.”65 Notably, Mr. Stees stated during the visit that he
was willing to work if he could find a job that he could do.66
In contrast to the prescription-slip note, the psychiatrist who attempted to treat
Mr. Stees at the state mental hospital opined that Mr. Stees had employable skills.67
SSA record at p. 471.
Metz v. Shalala, 49 F.3d 374, 377 (8th Cir. 1995). See House v. Astrue, 500 F.3d
741, 745 (8th Cir. 2007) (“A treating physician’s opinion that a claimant is disabled or
cannot be gainfully employed gets no deference because it invades the province of the
Commissioner to make the ultimate disability determination.”).
SSA record at p. 472.
Id. at p. 473.
Id. at p. 473.
Id. at p. 447.
There was no need to ask the VA treating psychiatrist for an opinion because he had
provided an opinion—the prescription-slip note.
Likewise, there was no reason to order a mental evaluation because the record
provided sufficient medical evidence to determine whether Mr. Stees was disabled due
to mental impairment.68 The record included treatment records from emergency room
staffs, the state mental hospital, and various VA clinics. Those records provided
sufficient evidence to determine whether Mr. Stees was disabled.69 The ALJ did not err.
Conclusion. The ALJ provided a thorough explanation about why the medical
evidence supported the RFC determination. The discussion included an explanation
about Mr. Stees’s exertional limitations and each nonexertional limitation.70 The ALJ
incorporated the limitations into a hypothetical question and consulted a vocational
expert. The vocational expert identified available jobs. The result was substantial
evidence supporting the ALJ’s conclusion.
Because substantial evidence supports the ALJ’s decision denying Mr. Stees’s
applications, and because the ALJ made no legal error, the court DENIES Mr. Stees’s
request for relief (docket entry # 2) and AFFIRMS the decision denying the applications.
Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994).
Barrett, 38 F.3d at 1023.
SSA record at pp. 13-17.
DATED this 17th day of October, 2012.
UNITED STATES MAGISTRATE JUDGE
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