McClelland v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on January 22, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BRYAN K. McCLELLAND

PLAINTIFF

v.

CASE NO.

12-2021

MICHAEL J. ASTRUE, Commissioner
of Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision
of the Commissioner of Social Security Administration (Commissioner) denying his claim for a
period of disability and disability insurance benefits (DIB) and supplemental security income
(“SSI”) under Title II of the Social Security Act (Act), 42 U.S.C. § 423(d)(1)(A). In this judicial
review, the court must determine whether there is substantial evidence in the administrative
record to support the Commissioner’s decision. See 42 U.S.C. § 405(g).

I. Procedural Background:
The plaintiff filed his applications for DIB and SSI on July 20, 2009, alleging an onset
date of July 20, 2009, due to plaintiff’s "back problems and hip" (T. 58). Plaintiff’s applications
were denied initially and on reconsideration. Plaintiff then requested an administrative hearing,
which was held on August 17, 2010. Plaintiff was present and represented by counsel.
At the time of the administrative hearing, plaintiff was 42 years of age and possessed a
high school education. The Plaintiff had past relevant work (“PRW”) experience as a welder
(T. 74).
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On May 26, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s Degenerative Disk Disease and Depression did not meet or equal any
Appendix 1 listing. T. 17. The ALJ found that plaintiff maintained the residual functional
capacity (“RFC”) to perform light work with additional restrictions T. 19. With the assistance of
a vocational expert, the ALJ then determined Plaintiff could perform the duties of poultry
worker, small products worker and machine tender. T. 22.
II. Applicable Law:
This court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider
evidence in the record that fairly detracts from that decision.” Id. As long as there is substantial
evidence in the record to support the Commissioner’s decision, the court may not reverse the
decision simply because substantial evidence exists in the record to support a contrary outcome,
or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742,
747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent positions from the
evidence, and one of those positions represents the Secretary’s findings, the court must affirm the
decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
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Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A).
The Act defines “physical or mental impairment” as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § § 423(d)(3), 1382(3)(c). A plaintiff
must show that his disability, not simply his impairment, has lasted for at least twelve
consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits. See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only if
the final stage is reached does the fact finder consider the plaintiff’s age, education, and work
experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d
1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
III. Discussion:
A. Development of the Record
The Plaintiff first contends that the Commissioner failed to develop the record because he
did not request additional medical source statements from two consultative physicians. See
Plaintiff’s Brief, at 6-8. The ALJ has a duty to fully and fairly develop the record. See Frankl v.
Shalala, 47 F.3d 935, 938 (8th Cir. 1995)(ALJ must fully and fairly develop the record so that a
just determination of disability may be made). This duty exist “even if ... the claimant is
represented by counsel.” Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.1992) (quoting Warner v.
Heckler, 722 F.2d 428, 431 (8th Cir.1983)). The ALJ is not required to act as Plaintiff’s counsel.
See Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994) (ALJ not required to function as
claimant’s substitute counsel, but only to develop a reasonably complete record); see also
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Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995) (“reversal due to failure to develop the
record is only warranted where such failure is unfair or prejudicial”).
Plaintiff presented only one medical record from Summit Medical Center, dated March 9,
2010, where he sought emergency room treatment after falling and landing on his chest while
carrying wood (Tr. 155-161). There is no evidence that Plaintiff sought any other medical
treatment during his alleged period of disability.
The ALJ sought a consultive examination performed by APN Pham Russell on
September 9, 2009 (T. 144-147). In addition to objective test performed by APN Pham Russell
she also obtained Roentgenological Report by Dr. Nelson on September 10, 2009 (T. 143). Dr.
Bill Payne, M.D. reviewed the medical records on November 17, 2009 and found the )Plaintiff’s
physical impairments were “non severe”. (T. 166). The ALJ also obtained an Orthopedic
Examination of the Plaintiff by Dr. Honghiran on December 6, 2010 (T. 189-191).
The ALJ also obtained a Mental Diagnostic Evaluation performed by Dr. Efird on
January 10, 2010 (T. 150- 153), and a Mental Residual Functional Capacity Assessment (169172) and a Psychiatric Review Technique (T. 173-186) performed by Dr. Brad Williams on
January 12, 2010.
There is no bright line rule indicating when the Commissioner has or has not adequately
developed the record; rather, such an assessment is made on a case-by-case basis. Battles v.
Shalala, 36 F.3d 43 at 45 (C.A.8 (Ark.), 1994). In this case the court finds that the ALJ has fully
and fairly developed the record.
B. Severe Impairments
The Plaintiff next argues that the ALJ next committed error in failing to recognize his left
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shoulder impairment as severe. (ECF No. 10, p. 8). The only evidence of any left shoulder
impairment was discovered during a consultive examination by Dr. Honghiran in December 2010
who found that the “x-ray of the left shoulder (1 view) showed normal left shoulder except for
some calcification at the AC joint from previous injury.” (T. 190)
The claimant has “the burden ... of showing ... that [s]he has a medically severe
impairment or combination of impairments.” Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct.
2287, 2294 n. 5, 96 L.Ed.2d 119 (1987). Riley v. Shalala 18 F.3d 619, 621 (C.A.8 (Ark.),1994).
If the impairments result in no more than minimal functional limitations, the impairments
are not severe. Pepper ex rel. Gardner v. Barnhart 342 F.3d 853, 854 (C.A.8 (Mo.),2003); ;
Social Security Ruling 96-3p. Impairments are generally not considered severe when they are
stabilized by treatment. See Johnston v. Apfel, 210 F.3d 870, 875 (8th Cir. 2000); Mittlestedt v.
Apfel, 204 F.3d 847, 852 (8th Cir. 2000).
In his Disability Report completed at the time of his application the Plaintiff indicated
that it was his “back problems and hips” that kept him from working. (T. 58) The Plaintiff
indicated in his Pain Report completed on April 10, 2010 that he had constant pain in his lower
and left back. (T. 115, 118, 119, 122). Nowhere in his Pain Report does the Plaintiff indicate
that he suffers pain because of his left shoulder. The fact that the plaintiff did not allege shoulder
pain as a basis for his disability in her application for disability benefits is significant, even if the
evidence of shoulder pain was later developed. See Smith v. Shalala, 987 F.2d 1371, 1375 (8th
Cir.1993); Dunahoo v. Apfel, 241, F. 3d 1033, 1039 (8th Cir. 2001). The Plaintiff also stated to
the orthopedic specialist in December 2010 that “he had not been able to work for the past 2
years because of low back pain.” (T. 189). At no time during his orthopedic examination does
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the Plaintiff indicate that he is have any left shoulder pain. (T. 189-191).
The ALJ correctly determined that the findings of Dr. Honghiran that the Plaintiff has
some calcification at the AC joint in his left shoulder did not constitute a severe impairment.
C. Residual Functional Capacity
The Plaintiff next contends that the ALJ committed error in his determination of the
Plaintiff RFC. (ECF 10, p. 9)
The ALJ determined that the “[C]laimant has the residual functional capacity to perform
light work as defined in20 C.F.R. § 416.967(b), except that the claimant is able to only
occasionally climb, balance, stoop, kneel, crouch, and crawl. Non-exertionally, the claimant is
able to perform work where interpersonal contact is routine [but] superficial, the complexity of
tasks is learned by experience, with several variables and using judgment with limits, and the
supervision required would be little for routine work but detailed for non-routine work.” T. 19.
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). A disability claimant has the burden of establishing his or her RFC. See
Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir.2004). “The ALJ determines a claimant’s
RFC based on all relevant evidence in the record, including medical records, observations of
treating physicians and others, and the claimant’s own descriptions of his or her limitations.”
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). This includes medical records,
observations of treating physicians and others, and the claimant’s own descriptions of her
limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). Limitations resulting
from symptoms such as pain are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3).
The United States Court of Appeals for the Eighth Circuit has held that a “claimant’s residual
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functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001).
Therefore, an ALJ’s determination concerning a claimant’s RFC must be supported by medical
evidence that addresses the claimant’s ability to function in the workplace.” Lewis v. Barnhart,
353 F.3d 642, 646 (8th Cir. 2003). “Under this step, the ALJ is required to set forth specifically
a claimant’s limitations and to determine how those limitations affect her RFC.” Id.
On September 9, 2009, Plaintiff underwent a physical examination at Dr. Floyd’s office,
conducted by Marie Pham-Russell, an advanced practitioner nurse (Tr. 144-147). 20 C.F.R. §
416.913(d)(1) (the agency may use evidence from a nurse practitioners to show the severity of a
claimant’s impairments and how it affects the claimant’s ability to work). Nurse Pham-Russell
documented that Plaintiff had no muscle weakness, atrophy, or spasm; had no joint deformity,
stability, ankylosis, or contracture; and had no sensory abnormalities (Tr. 145). Plaintiff had a
steady gait (Tr. 145). Plaintiff had normal grip strength; had normal limb function; and was able
to hold a pen and write, touch fingertips to palm, oppose thumb to fingers, pick up a coin, stand
and walk without assistive devices, walk on heel and toes, and squat and arise from a squatting
position (Tr. 145). Plaintiff had normal range of motion of his shoulders, elbows, wrists, hands,
hips, knees, ankles, cervical spine, and lumbar spine (Tr. 146). Plaintiff was oriented to time,
person, and place, and there was no evidence of psychosis (Tr. 146).
On December 6, 2010, Dr. Honghiran conducted an orthopaedic examination at the
agency’s request (Tr. 189). Dr. Honghiran noted that Plaintiff was able to walk normally and was
able to dress and undress with no problem (Tr. 189). Dr. Honghiran noted that an examination of
Plaintiff’s lumbar spine showed he could flex 60 degrees and bend side to side 25 degrees on
both sides with minimal pain; that his reflex was intact; and he had a negative straight leg on
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both sides (Tr. 190). Plaintiff had a full range of motion of his right knee, with no pain or
swelling; his left shoulder was normal; his left hand was normal, with full grip; and his left hip
showed complete range of motion with no pain (Tr. 190). X-ray examinations of Plaintiff’s right
knee, left hand, left hip, and left ankle showed normal results; his left shoulder was normal,
except for some calcification at the AC joint from a previous injury; and his lumbar spine
showed degenerative disc disease of the lower lumbar spine area atL4-5 and L5-S1 level, with a
narrowing of the disk space at those two levels (Tr. 190).
On September18, 2009, Ian Moore, an agency medical consultant, opined that Plaintiff
had no limitations (Tr.162-163). On November 17, 2009, Martha Dull, also an agency medical
consultant, opined that Plaintiff had no limitations (Tr. 164-168).
Notwithstanding the physical evidence the ALJ limited the Plaintiff to light work. Light
work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. See Page v. Astrue, 484 F.3d 1040, 1044 (C.A.8
(Ark.),2007); 20 C.F.R. § 404.1567.
On January 5, 2010, Plaintiff went to Dr. Efird, a psychologist, for a mental evaluation at
the agency’s request (Tr. 150-153). Dr. Efird noted that Plaintiff denied experiencing mental
difficulties, aside from forgetfulness; denied receiving inpatient psychiatric treatment; denied
receiving outpatient mental health services; and denied taking any psychiatric medications
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(Tr.150). Plaintiff reported being able to perform household chores and basic self-care tasks
independently (Tr. 151). It is true that, “[w]hile not dispositive, a failure to seek treatment may
indicate the relative seriousness of a medical problem .” Shannon v. Chater, 54 F.3d 484, 486
(8th Cir.1995). Id.; See Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (holding that lack of
formal treatment by a psychiatrist, psychologist, or other mental health professional is a
significant consideration when evaluating Plaintiff’s allegations of disability due to a mental
impairment).
On January 12, 2010, Brad F. Williams, Ph.D., an agency consultant, completed a
psychiatric review technique form (PRTF) regarding Plaintiff’s mental impairments, where he
diagnosed Plaintiff with depressive disorder, NOS (Tr. 171, 173-186). Dr. Williams issued a
mental residual functional capacity assessment and opined that Plaintiff was able to able to
perform work where interpersonal contact is routine but superficial, e.g. grocery checker;
complexity of tasks is learned by experience, several variables, uses judgment within limits; and
supervision required is little for routine but detailed for non-routine (Tr. 171).
Generally the results of a one-time medical evaluation do not constitute substantial
evidence on which the ALJ can permissibly base his decision. See, e.g., Jenkins v. Apfel, 196
F.3d 922, 925 (8th Cir.1999) (stating that the opinion of a consultative physician does not
generally satisfy the substantial evidence requirement). However, in this case the Plaintiff has no
treating physician or treatment history upon which to rely. See Page v. Astrue, 484 F.3d at 1043
(the medical evidence, state agency physician opinions, and claimant's own testimony were
sufficient to determine RFC); Stormo v. Barnhart, 377 F.3d 801, 807-08 (8th Cir. 2004) (medical
evidence, state agency physicians' assessments, and claimant's reported activities of daily living
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supported RFC finding); Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir. 2004) (ALJ's RFC
assessment properly relied upon assessments of consultative physicians and a medical expert,
which did not conflict with the treating physician's records).
The final responsibility for the determination of an individual’s residual functional
capacity, whether an individual’s residual functional capacity prevents him from doing past
relevant work, and the ultimate question of whether an individual is “disabled” under the Act are
issues reserved to the Commissioner pursuant to SSR 96-5p, 1996WL 374183 (S.S.A.), and 20
C.F.R. § 416.927. The ALJ’s residual functional capacity assessment is consistent with the
evidence of record and constitutes an appropriate resolution of any conflicts in the evidence.
Richardson, 402 U.S. at 399-400; Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (it is the
ALJ’s duty to resolve conflicts in the evidence).
The court finds that the ALJ properly determined the Plaintiff’s RFC.
D. Hypothetical Question
The Plaintiff next contends that the ALJ committed error in the hypothetical question
posed to the VE. (ECF No. 10, p. 12)
Testimony from a vocational expert ("VE") based on a properly-phrased hypothetical
question constitutes substantial evidence. See Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir.
1996); cf. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994) (when hypothetical question does
not encompass all relevant impairments, VE's testimony does not constitute substantial evidence
to support the ALJ's decision). The ALJ's hypothetical question needs to "include only those
impairments that the ALJ finds are substantially supported by the record as a whole." Id. (citing
Stout v. Shalala, 988 F.2d 853, 855 (8th Cir.1993)); see also Morse v. Shalala, 32 F.3d 1228,
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1230 (8th Cir.1994). A hypothetical need not use specific diagnostic or symptomatic terms
where other descriptive terms can adequately define the claimant's impairments. Roe v. Chater,
92 f.3d 672, 676 (8th Cir. 1996).
The court finds that the hypothetical question to the VE encompassed all relevant
impairments.
IV. Conclusion:
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision, and thus the decision should be affirmed. The
undersigned further finds that the plaintiff’s Complaint should be dismissed with prejudice.

Dated this January 22, 2013.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE

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