Macon v. Social Security Administration

Filing 16

ORDER adopting 14 Recommended Disposition; affirming the Commissioner's decision; denying 2 request for relief; dismissing this case with prejudice. Signed by Judge Kristine G. Baker on 9/29/2015. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
GLENN MACON
V.

PLAINTIFF
Case No. 4:14-cv-00287-KGB-JTK

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

ORDER
The Court has reviewed the Recommended Disposition received from Magistrate Judge
Jerome T. Kearney (Dkt. No. 14). After careful review of the Recommended Disposition, and
the timely objections received thereto (Dkt. No. 15), as well as a de novo review of the record,
the Court concludes that the Recommended Disposition should be, and hereby is, approved and
adopted in its entirety as this Court’s findings in all respects.
The Court writes separately to address plaintiff Glenn Macon’s objections (Dkt. No. 15).
First, Mr. Macon asserts that Judge Kearney applied the wrong standard of review and
incorrectly placed the burden on him (Id. at 1–2). Specifically, Mr. Macon contends that Judge
Kearney applied the “substantial evidence” standard and not the correct “substantial evidence in
the record as a whole” standard. The Court disagrees with Mr. Macon’s assertion, as Judge
Kearney cited in his Recommended Disposition Long v. Chater, 108 F.3d 185, 187 (8th Cir.
1997), which states, “We will uphold the Commissioner’s decision to deny an applicant 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.” The court in Long further
explained that a reviewing court “will consider evidence that detracts from the Commissioner’s
decision as well as evidence that supports the decision, [but] will not reverse ‘merely because
substantial evidence exists for the opposite decision.’” Id. (quoting Johnson v. Chater, 87 F.3d

1015, 1017 (8th Cir. 1996)).

Judge Kearney considered detracting evidence in the

Recommended Disposition but found that substantial evidence supports the ALJ’s decision
because a reasonable mind would accept the evidence as adequate to do so. See id. (“Substantial
evidence exists if a reasonable mind would deem the evidence adequate to support the
conclusion.”). This is the “substantial evidence in the record as a whole” standard. Likewise,
nothing in the Recommended Disposition suggests that Judge Kearney incorrectly shifted the
burden to Mr. Macon on step five of the sequential evaluation process. Further, this Court has
conducted a de novo review of the record, applying the substantial evidence in the record as a
whole standard, to reach its decision in this case.
Second, Mr. Macon claims that Judge Kearney “offered multiple ‘post hoc’
rationalizations for the ALJ’s decision which are based on ‘evidence’ not before the ALJ and/or
the Appeals Council” (2–3). Specifically, Mr. Macon provides two general examples of alleged
post hoc rationalizations: citations to Mr. Macon’s application to proceed in forma pauperis and
citations to an encyclopedia of medicine. Neither of these examples are post hoc rationalizations
of the ALJ’s decision or evaluation of the evidence.

Judge Kearney cited Mr. Macon’s

representations in his in forma pauperis application as an aside, without relying on it as evidence
in the record to support the ALJ’s decisions (Dkt. No. 14, at 6, n.24, 8, n.37). Judge Kearney
cited the encyclopedia of medicine to provide context regarding Mr. Macon’s medical conditions
(Dkt. No. 14, at 5, n.20, 6, n.26). Evidence of Mr. Macon’s medical conditions was in the record
before the ALJ. These are not post hoc rationalizations, and they do not change the outcome that
substantial evidence in the record as a whole supports the ALJ’s decision.
Third, Mr. Macon challenges Judge Kearney’s finding that substantial evidence supports
the ALJ’s determination that Mr. Macon’s hernia surgeries do not preclude his performance of

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light work (Dkt. No. 15, at 3). Judge Kearney appears to have based this finding, in part, on
evidence of Mr. Macon working 30 hours at a construction site at the time of the hearing before
the ALJ; Judge Kearney also based this finding on the medical evidence as a whole—while
considering Mr. Macon’s other medical claims—and the fact that Mr. Macon’s doctor advised
him to find a lighter type of work (Dkt. No. 14, at 5). Evidence that Mr. Macon was working 30
hours per week was acknowledged and considered by the ALJ (Dkt. No. 10-2, 7, 15–16). Mr.
Macon’s part-time work at the time of the hearing exceeded light work because it was done at a
construction site. Although Mr. Macon correctly points out that the ALJ found that Mr. Macon
could not perform this part-time work without special accommodations, this does not show that
Mr. Macon cannot perform light work, as the ALJ also determined. Even discounting any
evidence of Mr. Macon working 30 hours at the construction site at the time of the hearing, the
Court agrees that that substantial evidence in the record as a whole supports the ALJ’s finding
that hernia surgery did not prevent light work.
Fourth, Mr. Macon asserts that the ALJ’s decision must be reversed because the ALJ did
not consider Mr. Macon’s carpal tunnel syndrome and neuropathy (Dkt. No. 15, at 5–6). As both
Judge Kearney and the ALJ pointed out, Mr. Macon did not claim his “mild” carpel tunnel
syndrome as a basis of disability or assert that it resulted in any work or functional limitations;
he also did not complain about an inability to finger or handle objects. Although an ALJ must
fairly and fully develop the record, “he is not obliged to investigate a claim not presented at the
time of the application for benefits not offered at the hearing as a basis of disability.” Halverson
v. Astrue, 600 F.3d 922, 934 (8th Cir. 2010) (quoting Mouser v. Astrue, 545 F.3d 634, 639 (8th
Cir. 2008)). The regulations, however, do not require the Secretary or the ALJ to order a
consultative evaluation of every alleged impairment. They simply grant the ALJ the authority to

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do so if the existing medical sources do not contain sufficient evidence to make a determination.
Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989).
The assessment as to whether the ALJ adequately developed the record “is made on a
case-by-case basis.” Mouser, 545 F.3d at 639. For example, while an ALJ may be faulted for
not further developing a record that included evidence that the claimant was in special education
classes in high school, had a verbal IQ of 69, and had a history of mental retardation, see
Gasaway v. Apfel, 187 F.3d 840, 843 (8th Cir. 1999), a prescription for anti-depressants is not
evidence sufficient to require further inquiry into a claimant’s psychological state, see Hensley v.
Barnhart, 352 F.3d 353, 357 (8th Cir. 2003). 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. Halverson, 600 F.3d at 933 (emphasis added).
Here, as evidence sufficient to require further development of the record, Mr. Macon cites his
diagnoses of right carpal tunnel syndrome and sensory peripheral neuropathy, as well as
evidence of decreased sensitivity and strength in his left hand and other extremities, as well as
other symptoms. However, other than the diagnoses, these symptoms are not necessarily related
to carpal tunnel syndrome and sensory peripheral neuropathy; these symptoms may instead flow
from diabetes management. Moreover, the ALJ assessed Mr. Macon’s claim of neuropathy,
pointing out that Mr. Macon claimed it was intermittently alleviated by the use of Neurontin.
Because the evidence here is more analogous to that in Hensley than that in Gasaway, the Court
finds that the ALJ fairly and fully developed this record and was not obligated to investigate
further Mr. Macon’s right carpal tunnel syndrome and neuropathy. See Gasaway, 187 F.3d at
843; Hensley, 352 F.3d at 357. In this case, the ALJ considered the medical records, Mr.

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Macon’s statements, and other evidence in making the determination. As described above, there
was substantial evidence in the record as a whole to support the ALJ's decision.
Fifth, Mr. Macon challenges Judge Kearney’s reiteration of the ALJ’s finding that Mr.
Macon was noncompliant with his diabetic treatment (Dkt. No. 15, at 6–7). Mr. Macon asserts
that Judge Kearney and the ALJ failed to inquire as to the circumstances surrounding the failure
to follow a prescribed course of treatment and determine whether following the treatment would
restore his ability to work. See Burnside v. Apfel, 223 F.3d 840, 844 (8th Cir. 2000) (“We note
that before a claimant is denied benefits because of a failure to follow a prescribed course of
treatment an inquiry must be conducted into the circumstances surrounding the failure and a
determination must be made on the basis of evidence in the record whether quitting will restore
[claimant’s] ability to work or sufficiently improve his condition.”). The Court disagrees. Both
Judge Kearney and the ALJ examined the circumstances surrounding Mr. Macon’s
noncompliance, and the ALJ determined that Mr. Macon could do light work even considering
his uncontrolled diabetes, a finding which Judge Kearney found, and this Court agrees is,
supported by substantial evidence in the record as a whole (Dkt. No. 10-2, 14; Dkt. No. 14, at 7–
8).
Sixth, Mr. Macon objects to Judge Kearney and the ALJ’s reliance on state agency
physicians’ opinions (Dkt. No. 15, at 7–8). Mr. Macon cites cases from other circuit courts
essentially calling into doubt the reliability of opinions of nontreating physicians, as compared to
the reliability of the opinions of treating physicians, see Drapeau v. Massanari, 255 F.3d 1211,
1214 (10th Cir. 2001), but there are no treating physician opinions contradicting the nontreating
physician opinions here. Regardless, Mr. Macon argues that the ALJ was required to order a
physical examination. While a nontreating physician’s opinion is not substantial evidence on its

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own, Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999), Judge Kearney made clear that the
treatment records reflect no disabling symptoms and thus support the nontreating physicians’
opinions. See Warburton v. Apfel, 188 F.3d 1047, 1051 (8th Cir. 1999) (“[The] ALJ is permitted
to issue a decision without obtaining additional medical evidence as long as other evidence in the
record provides a sufficient bases for the ALJ’s decision.”); Barrett v. Shalala, 38 F.3d 1019,
1023 (8th Cir. 1994) (“The ALJ is required to order medical examination and test only if the
medical records presented to him do not give sufficient medical evidence to determine whether
the claimant is disabled.”). Here, the ALJ did not rely solely on the reviewing physicians’
opinions but instead also conducted an independent analysis of the medical evidence. This is not
a case in which the opinions of nontreating physicians are the only medical evidence supporting
the ALJ’s determination.
Seventh, Mr. Macon argues that Judge Kearney is incorrect that nothing in the record
indicates Mr. Macon cannot work with others (Dkt. No. 15, at 10–11). The ALJ did not
incorporate into his residual functional capacity assessment (“RFC”) Mr. Macon’s mild
limitation in maintaining social functioning. An ALJ may omit alleged impairments “when
‘there is no medical evidence that these conditions impose any restrictions on [the claimaint’s]
functional capacities’ or ‘when the record does not support the claimant’s contention that his
impairments significantly restricted his ability to perform gainful employment.’” Buckner v.
Astrue, 646 F.3d 549, 561 (8th Cir. 2011) (quoting Owen v. Astrue, 551 F.3d 792, 801–02 (8th
Cir. 2008)). Further, an ALJ does not err by excluding a claimant’s mental limitations from his
hypothetical questions when substantial evidence supports a finding that the mental impairment
is nonsevere, meaning when it results in no more than minimal limitation in the ability to
perform basic work activities. Buckner, 646 F.3d at 561; 20 C.F.R. § 404.1520a(d)(1). For the

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reasons highlighted by Judge Kearney, Mr. Macon’s mild limitation in maintaining social
functioning is nonsevere, so the ALJ was not required to include the mild limitation in his RFC.
For these reasons, the Court adopts the Recommended Disposition. The Court therefore
affirms the Commissioner’s decision, denies Mr. Macon’s request for relief, and dismisses with
prejudice this case. Judgment shall be entered accordingly.
SO ORDERED this 29th day of September, 2015.

______________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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