Davis v. Social Security Administration

Filing 15

OPINION AND ORDER denying pltf's request for relief 2 and AFFIRMING the Commissioner's decision. Signed by Judge J. Leon Holmes on 6/24/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
RICKY DAVIS
v.

PLAINTIFF
No. 4:12CV00307 JLH

CAROLYN COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

OPINION AND ORDER
On August 26, 2009, Ricky Davis applied for supplemental security income. Tr. at 80.
Davis’s application was denied initially and on reconsideration. Tr. at 45, 49. Davis sought a hearing
before an ALJ. Davis and a friend testified at the hearing. On October 29, 2010, the ALJ issued a
decision concluding that Davis was not disabled under the Social Security Act. Tr. at 12. Davis
asked the Appeals Council to review the ALJ’s decision. Tr. at 8. The Appeals Council found no
reason to change the ALJ’s decision and denied Davis’s request. Tr. at 1. The ALJ’s decision
became the final decision of the Commissioner for the purpose of judicial review. See 42 U.S.C.
§ 405(g).

Davis commenced this action on May 22, 2012, seeking judicial review of the

Commissioner’s decision.
When reviewing a decision denying an application for disability benefits, the Court must
determine whether substantial evidence supports the Commissioner’s decision and whether the
Commissioner made a legal error. See 42 U.S.C. § 405(g) (requiring the district court to determine
whether the Commissioner’s findings are supported by substantial evidence and whether the
Commissioner conformed with applicable regulations); Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir.
2009); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We will uphold the Commissioner’s
decision to deny an applicant disability benefits if the decision is not based on legal error and if there

is substantial evidence in the record as a whole to support the conclusion that the claimant was not
disabled.”). Substantial evidence is more than a mere scintilla of evidence; it means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Slusser, 557 F.3d
at 925. In determining whether substantial evidence supports the Commissioner’s decision, the Court
must consider evidence that detracts from the Commissioner’s decision as well as evidence that
supports the decision, but the Court may not reverse the Commissioner’s decision simply because
substantial evidence supports a contrary decision. See Sultan v. Barnhart, 368 F.3d 857, 863 (8th
Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
The regulations provide a five-step process for evaluating disability claims. See 20 C.F.R. §
416.920.
In step one, the ALJ decides whether the claimant is currently engaging in substantial
gainful activity; if the claimant is working, he is not eligible for disability insurance
benefits. In step two, the ALJ determines whether the claimant is suffering from a
severe impairment. If the claimant is not suffering a severe impairment, he is not
eligible for disability insurance benefits. At the third step, the ALJ evaluates whether
the claimant’s impairment meets or equals one of the impairments listed in Appendix
1 of the regulations (the “listings”). If the claimant’s impairment meets or equals one
of the listed impairments, he is entitled to benefits; if not, the ALJ proceeds to step
four. At step four, the ALJ determines whether the claimant retains the “residual
functional capacity” (RFC) to perform his or her past relevant work. If the claimant
remains able to perform that past relevant work, he is not entitled to disability
insurance benefits. If he is not capable of performing past relevant work, the ALJ
proceeds to step five and considers whether there exist work opportunities in the
national economy that the claimant can perform given his or her medical impairments,
age, education, past work experience, and RFC. If the Commissioner demonstrates
that such work exists, the claimant is not entitled to disability insurance benefits.
McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (citations omitted). “The claimant bears the
burden of proving disability. Having shown, however, that he is unable to perform his past relevant

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work, the burden shifts to the [Commissioner] to show that work exists in the national economy that
the claimant is capable of performing.” Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992).
Davis was forty-two years old at the time of his hearing. Davis functions in the range of mild
mental retardation. He has no significant work or medical history. His last reported earnings flowed
from working as a laborer doing roofing and landscaping in 1998. Tr. at 84, 92. Since that time, he
has freelanced, doing yard work and roofing jobs. Tr. at 33, 101, 169.
Davis lives with and takes care of his blind brother, administering his brother’s medications
and preparing his meals. Tr. at 34, 116, 140. The two subsist on the brother’s disability check, food
stamps, and Davis’s sporadic earnings from yard work and blood donations. Tr. at 33, 81, 120, 144,
183.
Davis initially based disability on bipolar disorder. Tr. at 91. He later complained about his
left ankle, Tr. at 132, 138, 145, and depression, Tr. at 139, 141. The ALJ ordered a mental
diagnostic examination. The examiner diagnosed no mental illness but opined that Davis may have
mild mental retardation. Tr. at 169-71. The ALJ then ordered intellectual testing.
A second examiner determined that Davis functioned in the range of mild mental retardation
and questioned whether Davis could successfully hold down an unskilled job. Tr. at 181-83. The
second examiner observed no general or mental health symptoms that would have affected intellectual
testing. Tr. at 183. Neither examiner reported the presence of symptoms of depression or bipolar
disorder.
At step one of the disability-determination process, the ALJ determined that Davis had done
no substantial gainful activity since August 26, 2009 — the protective filing date. Tr. at 14. At step
two, the ALJ determined that Davis’s ability to work was impaired by mental retardation. Tr. at 14.
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At step three, the ALJ found that Davis’s mental impairment was severe but that the impairment did
not meet or equal listing 12.05 — the listing for mental retardation. Tr. at 14. The ALJ found that
Davis did not meet listing 12.05C because Davis had no physical or other mental impairment. Tr. at
15. At step four, the ALJ determined that Davis could do work involving simple job instructions at
all exertional levels. Tr. at 16. After questioning a vocational expert about available work, the ALJ
determined that work existed that Davis could do and denied the application. Tr. at 20.
Davis contends that the ALJ erred regarding:
(1) the ALJ’s determination that he did not meet listing 12.05C,
(2) the ALJ’s evaluation of his credibility,
(3) the ALJ’s evaluation of the medical evidence, and
(4) the ALJ’s hypothetical question.
Based on these contentions, Davis argues that substantial evidence does not support the
Commissioner’s conclusion that he is not disabled. Davis also argues that the Commissioner’s
decision does not comport with required legal standards.
Davis asserts that he meets listing 12.05C because he has an ankle impairment and suffers
from depression. Document #9, at 10-12. In the third step of the disability-determination process,
the ALJ compares the claimant’s severe impairment with those on a list of specific impairments. 20
C.F.R. § 416.920(a)(4)(iii). If the claimant’s impairment meets or equals a listed impairment, the ALJ
will deem the claimant disabled without considering his age, education, or work experience. Meeting
listing 12.05C requires a “valid verbal, performance, or full scale IQ of 60 through 70 and a physical
or other mental impairment imposing an additional and significant work-related limitation of
function.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C. No dispute exists about the first
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requirement because Davis had a “valid verbal, performance, or full scale IQ of 60 through 70.” Tr.
at 182 (verbal: 67, performance: 69, full scale: 65). The latter requirement is disputed. Davis argues
that the ALJ failed to consider properly the effects of painful ankle hardware on his ability to work
and that the ALJ failed to consider properly his depression, stress, and bipolar disorder.
An October 2009 x-ray of Davis’s ankle confirmed the presence of hardware for the repair
of a remote fracture but found no new fractures and no new abnormality. Tr. at 175. The x-ray
confirmed proper alignment of the remote fracture. Moreover, Davis reported no impairment from
his left ankle. The only complaints regarding his ankle were sporadic occasions of pain. Tr. at 132
(“My ankle hurts on and off.”); id. at 138 (explaining that his ankle hurts about three times weekly,
after he walks for a long time). When asked by the ALJ about his physical impairments, Davis
mentioned only back pain. Tr. at 32. Thus, substantial evidence supports the ALJ’s conclusion that
Davis has no physical impairment that imposes an additional and significant work-related limitation
of function.
Nor has Davis shown any “other mental impairment imposing an additional and significant
work-related limitation of function.” Neither psychological examiner observed symptoms of a mental
illness or mental disorder other than mild mental retardation. Davis reported situational depression
flowing his inability to find work, Tr. at 139, 141, but that report does not suggest a mental illness
or mental disorder imposing an additional and significant work-related limitation of function.
Davis contends that the ALJ failed to develop the record fully and fairly regarding bipolar
disorder and depression, Document #9, at 11, but no reason existed for further record development
because neither psychological examiner observed symptoms of bipolar disorder or depression. Byes
v. Astrue, 687 F.3d 913, 916 (8th Cir. 2012) (“If sufficient evidence alerts the ALJ to the possibility
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of a severe mental impairment, the ALJ must further develop the record about mental impairments
before ruling on the severity of the claimant’s impairment(s).”); Barrett v. Shalala, 38 F.3d 1019,
1023 (8th Cir. 1994) (“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.”). Davis reported no mental problems other than those symptomatic of mental
retardation. The ALJ did not err in determining that Davis did not meet the requirements of 12.05C.
Davis complains about the ALJ’s evaluation of his credibility and argues that he is unable to
work on a sustained basis. Document #9, at 6-10. An ALJ has a statutory duty to assess the
claimant’s credibility. Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). To evaluate Davis’s
credibility, the ALJ followed the required two-step process and considered the required factors. See
SSR 96-7p, Pol’y Interpretation Ruling Titles II & XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s Statements (July 2, 1996). Thus, the question
before the Court is whether substantial evidence supported the ALJ’s credibility evaluation.
Davis contends that a painful ankle prevents him from working, but no medical evidence
supported that degree of severity. The ankle injury occurred long ago and does not prevent Davis
from working or caring for his brother. As mentioned above, when he was asked about physical
impairments that prevented him from working, Davis mentioned only occasional back pain. Tr. at
32. Following an October 2009 motor vehicle accident, the examining physician observed no
impairment, except for neck strain and a contusion to the left foot. Tr. at 178-79. Those injuries may
have impaired Davis temporarily but not long enough to meet the duration requirement. 42 U.S.C.
§ 1382c(a)(3)(C)(i). The inconsistency between the allegation of physical impairment and the medical
evidence weighed against the credibility of the allegation of physical impairment.
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Davis also contends that depression prevents him from working, but no medical evidence
supported the presence of depression. Neither psychological examiner observed signs of depression.
Davis did not complain about depression to medical professionals. The inconsistency between the
allegation of depression and the medical evidence weighed against the credibility of the allegation of
disabling depression. The ALJ had a sufficient basis for discounting the credibility of the allegation.
Davis argues that the ALJ failed to evaluate medical source opinions properly. In particular,
he contends that the ALJ disregarded the second examiner’s opinion about his ability to work.
Document #9, at 4-6. The second examiner questioned Davis’s ability to hold down an unskilled job
considering his ability to comprehend and overall intellectual functioning. Tr. at 183.
If conflicts exist in the medical evidence, the ALJ must resolve “the differences between . . .
consultative evaluations in the light of the objective evidence.” Dipple v. Astrue, 601 F.3d 833, 836
(8th Cir. 2010). The ALJ may “reject the conclusions of any medical expert, whether hired by the
claimant or the government, if they [were] inconsistent with the record as a whole.” Pearsall v.
Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001).
In this case, the medical evidence flowed from examining psychologists because Davis has
never undergone mental health treatment. Davis suggests that conflicts exist in the psychologists’
opinions, but that suggestion is mistaken. The first examiner made no diagnosis but opined that Davis
might “have mild mental retardation,” reported “some difficulty communicating in an intelligible and
effective manner,” and opined that Davis might “have difficulty completing work like tasks within an
acceptable time frame.” Tr. at 170-71. The second examiner confirmed the presence of mental
retardation and reported that Davis can “make himself understood fairly effectively, considering his
intellectual level” and can complete tasks in an acceptable timeframe. Tr. at 182-83. The second
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examiner concluded, “It is questionable in this examiner’s mind whether or not this man could
successfully hold down an unskilled job considering his ability to comprehend and overall intellectual
functioning.” Tr. at 183. The examiners’ findings did not conflict because: (1) the first examiner
alerted the ALJ to possibility of mental retardation and the second examiner confirmed the presence
of mental retardation; (2) the first examiner identified communication difficulties and the second
examiner confirmed the ability to communicate despite communication difficulties; and (3) the first
examiner identified possible problems with persistence and pace and the second examiner confirmed
the ability to persist and complete tasks adequately within normal limits.
A Ph.D. psychologist and an M.D. reviewed the examiners’ reports and opined that Davis
could do unskilled work where interpersonal contact is incidental to work performed; where
complexity of tasks is learned and performed by rote, with few variables and little judgment required;
and where supervision required is simple, direct, and concrete. Tr. at 202, 206, 212. This opinion
presented no conflict because the second examiner reported mild deficiency in the ability to cope with
the typical mental and cognitive demands of basic work tasks and the ability to attend to and sustain
concentration on basic tasks. Tr. at 183. That finding was consistent with the consultant’s opinion
that Davis was not significantly limited in the ability to carry out very short and simple instructions
or to make simple work-related decisions. Tr. at 202.
The consultant’s opinion formed the basis of the ALJ’s determination about Davis’s ability
to work. Based on Davis’s testimony, Tr. at 32-35, the ALJ further reduced Davis’s ability to work
because he has difficulty dealing with the general public and minor changes in the usual work routine.
Substantial evidence supported the resulting determination because a reasonable mind would find the
evidence adequate to support the determination that Davis could do work involving simple work
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instructions at all exertional levels. Davis asserts that the ALJ failed to weigh the medical evidence,
Document #11, at 3, but the ALJ recognized that the medical opinions flowed from examining and
non-examining sources specializing in psychology and acknowledged the weight given to such
opinions. Tr. at 17. In the absence of medical evidence from a treating source or conflicting medical
opinions, no more was required. Although Davis complains about the ALJ’s failure to discuss all
medical findings, “an ALJ is not required to discuss every piece of evidence submitted.” Black v.
Apfel, 143 F.3d 383, 386 (8th Cir. 1998).
Davis contends that the ALJ’s hypothetical question was defective. He complains about the
omission of the details of the mental residual functional capacity assessment and the omission of ankle
pain and back pain. Document #9, at 2-4.
A hypothetical question . . . is sufficient if it sets forth impairments supported by
substantial evidence in the record and accepted as true. The hypothetical question
must capture the concrete consequences of the claimant’s deficiencies. However, the
ALJ may exclude any alleged impairments . . . properly rejected as untrue or
unsubstantiated.
Perkins v. Astrue, 648 F.3d 892, 901-02 (8th Cir. 2011) (internal quotation marks and citations
omitted).
The hypothetical question omitted details of the residual functional capacity assessment, but
the ALJ is not required “to mechanically list and reject every possible limitation.” McCoy, 648 F.3d
at 615. Instead, the ALJ must capture the concrete consequences of the claimant’s deficiencies. The
hypothetical question in this case captured the concrete consequences of Davis’s deficiencies because
it included Davis’s (1) educational background; (2) limited reading and writing capabilities; (3)
marginal ability to communicate; (4) inability to deal with minor changes in usual work routine; (5)
inability to deal with general public; (6) ability to understand, remember and carry out simple one or
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two-step jobs; and (7) ability to make judgments in simple work-related situations, such as obvious
job hazards. Tr. at 36. The ALJ properly omitted exertional limitation because the record did not
show occasional ankle or back pain diminished Davis’s ability to work. The question was properly
phrased.
The vocational expert responded to the question and identified available work. Tr. at 36-37
(identifying landscape laborer in the heavy category, hospital cleaner in the medium category, and
production assembler in the light category). Because a vocational expert’s testimony answering a
properly phrased hypothetical question constitutes substantial evidence, the ALJ’s determination that
Davis could work was supported by substantial evidence. Partee v. Astrue, 638 F.3d 860, 865 (8th
Cir. 2011); Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010).
CONCLUSION
Having determined substantial evidence supports the Commissioner’s denial of Davis’s
application, and the Commissioner made no legal error, the Court DENIES Davis’s request for relief
and AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED this 24th day of June, 2013.

__________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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