Pope v. Social Security Administration

Filing 15

ORDER affirming the final decision of Berryhill and dismissing with prejudice Pope's complaint. Signed by Magistrate Judge Patricia S. Harris on 3/17/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

TIMOTHY POPE

VS.

PLAINTIFF

CASE NO. 4:16CV00373 PSH

NANCY A. BERRYHILL, Acting Commissioner,
Social Security Administration

DEFENDANT

ORDER
Plaintiff Timothy Pope (“Pope”), in his appeal of the final decision of the Commissioner of
the Social Security Administration (defendant “Berryhill”) to deny his claim for Disability Insurance
benefits (DIB) and supplemental security income (SSI), contends the Administrative Law Judge
(“ALJ”) erred: (1) in failing to fully and fairly develop the record; and (2) in determining his
residual functional capacity (“RFC”). The parties have ably summarized the medical records and
the testimony given at the administrative hearing conducted on January 8, 2015. (Tr. 28-70). The
Court has carefully reviewed the record to determine whether there is substantial evidence in the
administrative record to support Berryhill’s decision. 42 U.S.C. § 405(g). The relevant period for
purposes of Pope’s disability determination is from September 15, 2011, through March 26, 2015.
At the administrative hearing, Pope testified that he was 34 years old, and made it through
the ninth grade and a “little bit” of the tenth grade. (Tr. 35). Pope stated he didn’t read well and had
never done a job requiring math skills. Pope worked for seventeen years at a pickle plant, until the
company went out of business. Pope’s attorney asked, “Would you still be there if you could still

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do it, if it was still there?” Pope responded, “Yeah.” (Tr. 37). Pope described problems with anger
and with getting along with others. He testified he had not worked since his last administrative
hearing.1 Pope also testified to suffering from arthritis, for which he wore a knee brace at the
hearing, to headaches, a broken ankle due to a fall, to being able to stand for 30-45 minutes, to being
able to walk only short distances, to blacking out 2-3 times a month, and to depression, including
being suicidal 2-3 times a month. (Tr. 31-58). A vocational expert, Sarah Moore (“Moore”),
testified that Pope’s work at the pickle plant was light work. The ALJ posed several hypothetical
questions to Moore, including one in which he asked her to assume a worker of Pope’s age and
education with an ability to perform light work with the following restrictions: the ability to
occasionally climb, balance, crawl, kneel, stoop, and crouch; the ability to read only simple words
and phrases; work would be limited to simple, routine, repetitive tasks in a setting where
interpersonal contact was incidental to the work performed; and the supervision would be simple,
direct, and concrete. (Tr. 65). Moore testified such a worker could perform the job at the pickle
plant as it was performed by Pope.
The ALJ, in his March 2015 decision, found Pope had severe impairments of degenerative
disc disease of the lumbar and cervical spine, hypertension, mood disorder, and anxiety disorder.
The ALJ determined Pope’s RFC to be for light work except he is able to perform work that involves
only occasional postural activities; reading only simple words and phrases; simple, routine, and
repetitive tasks; work in settings where interpersonal contact is incidental to the work being
performed; and simple, direct, and concrete supervision. This RFC mirrored very closely the
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Pope sought disability benefits in an earlier case. The ALJ denied benefits on June 13, 2011, and
Pope filed a lawsuit with this Court. Case no. 4:14cv374. The ALJ’s decision was affirmed by
United States Magistrate Judge Joe J. Volpe on May 4, 2015.
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limitations contained in the first hypothetical question posed by the ALJ to Moore. The ALJ found
Pope was “not entirely credible.” (Tr. 17). The ALJ considered the objective medical evidence in
the record, which included 2010 consultative examinations by Drs. Ott and Honghiran, as well as
all the medical records during the relevant period. The ALJ also noted discrepancies in statements
Pope made to medical care providers,2 some noncompliance with medical care instructions, and the
effective use of medication to control hypertension and hyperlipidemia.
Failure to fully and fairly develop the record. Pope faults the ALJ for giving “great weight”
to the opinions of Drs. Ott and Honghiran because these consultative examinations were performed
in 2010, prior to the relevant period for this case. Pope argues that the ALJ should not have relied
upon these opinions. Instead, Pope urges the ALJ erred in failing to send him for new, updated
consultative examinations.
Initially, although the ALJ assigned great weight to the opinions of Drs. Ott and Honghiran,
he did not rely solely on these opinions. Rather, the ALJ carefully reviewed the medical records
during the relevant period. These records reflect Pope sparingly sought medical care, and the care
he sought was on occasion unrelated to the impairments which he alleged were disabling.3 An
overview shows that during the relevant period, Pope was treated in April and October of 2012 for
chest pain but no heart disease was found. In fact, the discharging physician in April indicated Pope

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In February 2013 Pope told an emergency room physician that he had a heart attack the previous
year and was hospitalized for two to three weeks. Although he was hospitalized for two days in
April 2012, there was no diagnosis of a heart attack. (Tr. 19, 416). Also, in February 2014 Pope
told medical personnel at the River Valley Christian Clinic that he had been hospitalized two weeks
earlier due to black out spells. The record does not support this assertion. (Tr. 20, 565).
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Pope alleges he is disabled due to anxiety attacks, heart problems, “crippled in both legs,” and eye
sight problems with his left eye. (Tr. 279).
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had normal coronary arteries and recommended he maintain an “active lifestyle.” (Tr. 452). Pope
sought treatment following a fistfight in January 2013, and the discharging physician noted an
orbital fracture but also found “intact globes” and a “grossly normal eye exam.” (Tr. 406-407).
When Pope presented with chest pain in February 2013 the emergency room physician found no
acute heart disease, noncompliance with taking medications, and concluded Pope “likely has chest
pain from a non-cardiac source, possibly gastrointestinal.” (Tr. 416, 421-423). In July 2013 Pope
presented as a new patient at River Valley Christian Clinic (“RVCC”), where he would be seen nine
times during the relevant period. With the exception of one visit where he complained of black out
spells, the remaining visits were to obtain refills of prescription medications. In October 2013 Pope
was treated at the emergency room after falling over a chair. Imaging testing showed no acute
findings, and he was treated with over the counter pain medications. He was diagnosed with a
contusion of the chest wall and a fracture medial malleolus left ankle, and a strain of right ankle.
(Tr. 484-486).
The ALJ reviewed Pope’s medical treatment during the relevant period and found it was
consistent with the opinions offered by Drs. Ott and Honghiran. The ALJ considered sending Pope
for a consultative examination, as this possibility was discussed at the administrative hearing. (Tr.
34). However, the inquiry now is whether the circumstances required the ALJ to send Pope for a
consultative examination. We find the ALJ did not err in relying upon the record before him.
Although the consultative examinations occurred prior to the relevant period, they were a
portion of the record upon which the ALJ based his decision. The parties agree that the ALJ has a
duty to fully and fairly develop the record, even when the plaintiff is represented by counsel. Pope
had counsel at the administrative hearing, and is represented by counsel in this case. Here, Pope’s

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argument that the ALJ should have referred him for a consultative examination fails. Pope alleged
disability due to anxiety attacks, heart problems, leg problems, and eye sight problems with his left
eye.

The objective medical evidence, both during the relevant period and shortly prior to the

relevant period, was consistent and supports the ALJ’s decision. The ALJ’s decision was wellinformed, and the ALJ correctly noted that there was “no evidence of any significant change or
deterioration in the claimant’s level of functioning around his alleged onset date that would explain
why he became disabled around this time.” (Tr. 21). Under these circumstances, we find no error
in the ALJ’s reliance upon the record before him, and on his decision not to seek another
consultative examination. Pope’s first argument for relief is without merit.
ALJ error in determining Pope’s RFC: Turning to Pope’s claim of error in the RFC
determination, we initially note that the credibility determination is a foundational piece of the RFC
conclusion. Here, the ALJ’s credibility assessment was well supported. Further, the RFC need not
mirror the findings of any one physician, as the ALJ is not bound to choose any one physician and
adopt his/her findings as the appropriate RFC. Instead, it “is the ALJ’s responsibility to determine
a claimant’s RFC based on all relevant evidence, including medical records, observations of treating
physicians and others, and claimant’s own descriptions of his limitations.” Pearsall v. Massanari,
274 F.3d 1211, 1217 (8th Cir. 2001). Here, the ALJ found Pope capable of performing light work
with numerous limitations. The limitations take into account the ALJ’s finding that Pope has a
history of hypertension, which responds well to medication, and anxiety, and the ALJ’s finding that
otherwise Pope’s medical records reflect “relatively normal functioning.” (Tr. 18). In particular,
the limitation on interpersonal contact in the workplace seems targeted toward Pope’s anxiety issues.
We find substantial evidence supports the RFC calculation in this instance, and there is no merit to

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this claim. The ALJ did not err in finding Pope could perform a limited range of light work.
In summary, we find the ultimate decision of Berryhill was supported by substantial
evidence. We are mindful that the Court’s task is not to review the record and arrive at an
independent decision, nor is it to reverse if we find some evidence to support a different conclusion.
The test is whether substantial evidence supports the ALJ’s decision. See, e.g., Byes v. Astrue, 687
F.3d 913, 915 (8th Cir. 2012). This test is satisfied in this case.
IT IS THEREFORE ORDERED that the final decision of Berryhill is affirmed and Pope’s
complaint is dismissed with prejudice.
IT IS SO ORDERED this 17th day of March, 2017.

UNITED STATES MAGISTRATE JUDGE

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