McMackins v. Social Security Administration

Filing 10

MEMORANDUM OPINION AND ORDER affirming the decision of the Commissioner; and dismissing 1 Plaintiff's Complaint with prejudice. Signed by Magistrate Judge Joe J. Volpe on 8/19/2014. (srw)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
DAVID E. MCMACKINS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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No. 4:13CV00492-JJV

MEMORANDUM OPINION AND ORDER
Plaintiff, David McMackins, appeals the final decision of the Commissioner of the Social
Security Administration (the “Commissioner”) denying his claim for disability insurance benefits
(“DIB”) under Title II of the Social Security Act (the “Act”). For reasons set out below, the decision
of the Commissioner is AFFIRMED.
I.

BACKGROUND1
On December 20, 2010, Mr. McMackins protectively filed for DIB due to severe migraines,

borderline high blood pressure, and acid reflux. (Tr. 19) His claims were denied initially and upon
reconsideration. At Mr. McMackins’s request, an Administrative Law Judge (“ALJ”) held a hearing
on May 1, 2012, where Mr. McMackins appeared with his lawyer, Mr. McNabb. (Tr. 30) Mr.
McMackins was forty years old at the time of the hearing, and he has an associates degree from ITT

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Mr. McMackins, Mr. McNabb, and Administrative Law Judge Schafer agree this is Mr.
McMackins’s “second application” for disability insurance benefits under Title II of the Social
Security Act with an amended onset date of November 25, 2010. (Tr. 33) Claimant did not apply
for Title XVI supplemental security income. (Tr. 17) Mr. McMackins’s first application alleged a
disability onset date of July 28, 2009. (Tr. 77) On November 24, 2010, Administrative Law Judge
Manley denied Mr. McMackins’s first application for DIB and SSI under Titles II and XVI of the
Social Security Act. (Tr. 77-83) Each ALJ found the same substantial inconsistencies and
discounted evidence in the record. (Tr. 23, 82)
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Technical Institute. (Tr. 34) At the hearing, the ALJ heard testimony from Mr. McMackins and a
vocational expert (“VE”). (Tr. 32-53) Consistent with the VE’s testimony, the ALJ determined that
Mr. McMackins had past relevant work experience as a CAD drafter, draftsman, construction
worker, lumber yard worker, small products assembler, and installer. (Tr. 24)
On May 24, 2012, the ALJ ruled that Mr. McMackins was not disabled under the Act. (Tr.
14-25) On June 12, 2012, Mr. McMackins requested an Appeals Council review of the ALJ’s
decision. (Tr. 11-12) His attorney submitted another brief and a new clinic note from Dr. Wandal
Money. (Tr. 11-13) Dr. Money is Mr. McMackins’s treating physician, and the new clinic note was
not available to the ALJ. On June 25, 2013, the Appeals Council denied Mr. McMackins’s request
for review, making the ALJ’s decision the Commissioner’s final decision. (Tr. 1-5)
II.

DECISION OF THE ADMINISTRATIVE LAW JUDGE2
The ALJ found that Mr. McMackins had not engaged in substantial gainful activity since

November 24, 2010, and he had the following severe impairments: chronic headache syndrome and
anxiety. (Tr. 19) However, the ALJ found that Mr. McMackins did not have an impairment or
combination of impairments meeting or equaling an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1.3 (Tr. 20)
The ALJ determined that Mr. McMackins has the residual functional capacity (“RFC”) to
perform “simple, routine, repetitive tasks; he would require supervision that is simple, direct, and

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The ALJ followed the required sequential analysis to determine: (1) whether the claimant
was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment;
(3) if so, whether the impairment (or combination of impairments) met or equaled a listed
impairment; and (4) if not, whether the impairment (or combination of impairments) prevented the
claimant from performing past relevant work; and (5) if so, whether the impairment (or combination
of impairments) prevented the claimant from performing any other jobs available in significant
numbers in the national economy. 20 C.F.R. §§ 416.920(a)-(g) (2005).
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20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.
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concrete; and he would be restricted from performing work involving production quotas such as
assembly line or piece work.” (Tr. 21) The VE testified that the jobs available with these limitations
were grocery bagger and dishwasher. (Tr. 24) After considering the VE’s testimony, claimant’s age,
education, work experience, and RFC, the ALJ determined that Mr. McMackins was not disabled
and he could perform a significant number of other jobs existing in the national economy. (Tr. 2425)
III.

ANALYSIS
A.

Standard of Review

In reviewing the Commissioner’s decision, this Court must determine whether there is
substantial evidence in the record as a whole to support the decision.4 Substantial evidence is “less
than a preponderance, but sufficient for reasonable minds to find it adequate to support the
decision.”5 In reviewing the record as a whole, the Court must consider both evidence that detracts
from the Commissioner’s decision and evidence that supports the decision, but the decision cannot
be reversed “simply because some evidence may support the opposite conclusion.”6
B.

Mr. McMackins’s Arguments for Reversal

Mr. McMackins asserts that the Commissioner’s decision should be reversed because it is
not supported by substantial evidence, and the newly-submitted clinic notes solve the inconsistencies
in Dr. Money’s notes.7 (Tr. 11) Specifically, Mr. McMackins contends that the ALJ (1) erred when
determining the RFC by focusing on inconsistencies in the record instead of giving proper weight

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Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g).

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Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)).

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Boettcher, 652 F.3d at 863 (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).

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20 C.F.R. §§ 404.970 and 416.1470.
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to the evidence in the record; and (2) material evidence was uploaded to the record on May 17, 2012,
which could not have been considered by the ALJ. (Tr. 11)
1.

Treating Physician’s Migraine Headache Form

Mr. McMackins was involved in an auto accident approximately eighteen years before the
May 1, 2012, hearing, and he has suffered from chronic migraines since. (Tr. 35, 63) Mr.
McMackins has been on multiple medications, and he alleges he is limited in his ability to work due
to his migraine headaches. (Tr. 19)
Plaintiff’s strongest evidence comes by way of statements of his treating physician, Wandal
Money, M.D. Dr. Money provided a January 2011, “Treating Physician’s Migraine Headache Form”
suggesting Plaintiff was unable to work because of the frequency of his migraines. (Tr. 244) But
there are inconsistencies between this form and Dr. Money’s treatment notes. An October 12, 2010,
treatment notes reports, “He still uses a pain medicine symptomatically. He does reasonably well
doing that. His pain is managed and is controlled for the most part, and he tolerates the medicine.
. . He does not feel that any changes need to be made at this time.” (Tr. 232) On December 7, 2010,
Dr. Money reported, “His pain continues to be well controlled and he continues to do well on his
current regimen.” (Tr. 230) Later in April 2011, Dr. Money reported, “His headaches are well
controlled on the medicines that we are using.” (Tr. 248) Accordingly, the ALJ could correctly
discount the “Headache Form” supplied by Dr. Money.
2.

New Material Evidence

The United States Court of Appeals for the Eighth Circuit has determined that a reviewing
court’s role “is to determine whether an ALJ’s decision is supported by substantial evidence on the
record as a whole, including the new evidence submitted after the determination was made,” and
“requires [the] court to decide how the ALJ would have weighed the new evidence had it existed at

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the initial hearing.”8 Mr. McMackins submitted the new May 7, 2012, clinic notes to the Appeals
Council for review under 20 C.F.R. §§ 404.970 and 416.1470. (Tr. 13) Mr. McMackins asserts the
clinic notes resolve all discrepancies and allows the record to be read consistently with the treating
notes. (Tr. 11-13) However, the May 7, 2012, notes fail to support Plaintiff’s contention. In these
notes, Dr. Money identifies Mr. McMackins’s current problems as “mostly financial since he
recently got married.” (Tr. 13) Dr. Money also explains that Mr. McMackins’s medication did not
“completely do away with the pain,” but “[a]s long as he takes the [Oxycodone]. . . his quality of life
is significantly improved and he has more days out of bed than in bed.” (Tr. 13) Yet, he “felt that
[Mr. McMackins] was unable to work because of the effects of the Oxycodone . . . .” He further
asserted the pain would sometimes “break through and result in significant disability though it may
be temporary.” (Tr. 13) The notes are somewhat self-contradictory as well as contrary to previous
statements that all attempts to control pain with medications was a complete failure. (Tr. 244)
On June 25, 2013, the Appeals Council properly denied Mr. McMackins’s request for review
after considering the new brief and the new evidence introduced subsequent to the ALJ’s decision.
(Tr. 1-3) The Appeals Council reviewed the entire claim based on Mr. McMackins’s disagreements
with the ALJ’s decision and the subsequently introduced notes. (Tr. 1-3) The ALJ ruled based on
substantial evidence of discrepancies in the record, and because of such discrepancies, he chose to
give little weight to Dr. Money’s contradictory notes and Mr. McMackins’s subjective observations.
(Tr. 22-23)
IV.

CONCLUSION
Plaintiff has advanced other arguments that the Court has considered and finds to be without

merit. The Court has reviewed the entire record, including the briefs, the ALJ’s decision, the

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Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 2000).
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transcript of the hearing, and the medical and other evidence. Clearly Plaintiff suffers from some
degree of pain and limitation as a result of his migraine headaches and he has presented evidence that
supports his position. But it is not the task of this Court to review the evidence and make an
independent decision. Neither is it to reverse the decision of the ALJ because there is evidence in
the record which contradicts his findings. The test is whether there is substantial evidence on the
record as a whole which supports the decision of the ALJ. E.g., Mapes v. Chater, 82 F.3d 259, 262
(8th Cir. 1996); Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992).
There is ample evidence on the record as a whole that “a reasonable mind might accept as
adequate to support [the] conclusion” of the ALJ in this case. Richardson v. Perales, 402 U.S. at
401; see also Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The
Commissioner's decision is not based on legal error.
Accordingly, the Commissioner’s decision is affirmed and Mr. McMackins’s Complaint is
dismissed with prejudice.
IT IS SO ORDERED this 19th day of August, 2014.

___________________________________
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE

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