Scott-Davenport v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION Signed by Honorable James R. Marschewski on July 16, 2014. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JOSHUA K. SCOTT-DAVENPORT
v.

PLAINTIFF
Civil No. 13-2084

CAROLYN W. COLVIN1, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Joshua Scott-Davenport, 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 disability insurance benefits (“DIB”) and supplemental
insurance benefits (“SSI”) under Titles II and XVI of the Social Security Act (hereinafter “the
Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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 application for DIB and SSI in April 2, 20102, alleging an onset

date of April 1, 2009, due to the residuals of full-thickness burns suffered to his neck and upper
extremities representing 15% of his total body surface, headaches, and mental impairments. Tr.
160, 170, 180, 188-189, 206, 223.

His claims were denied both initially and upon

1

Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule 25(d)(1)
of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner Michael J. Astrue as the
defendant in this suit.
2

A prior application was denied at the reconsideration level on September 6, 2007, but pursued no
further. Tr. 72, 147-149.

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reconsideration. Tr. 73-91. An administrative hearing was then held on May 12, 2011. Tr. 11,
26-69. Plaintiff was both present and represented at that hearing.
At the time of the administrative hearing, Plaintiff was 25 years old and possessed a high
school education with four years of college. Tr. 19, 171. He had no past relevant work (“PRW”)
experience. Tr. 19, 161-168, 172.
On June 24, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, Plaintiff’s status post burns to 15 percent of his body, depressive disorder, and
posttraumatic stress disorder (“PTSD”) did not meet or equal any Appendix 1 listing. Tr. 13-15.
The ALJ determined that Plaintiff maintained the residual functional capacity (“RFC”) to
perform light work
except he can do not more than occasional overhead reaching bilaterally. He can
perform work limited to simple, routine, and repetitive tasks involving simple,
work-related decisions with few, if any, work place changes. He can have no
more than occasional interaction with the public, supervisors, and coworkers. He
cannot work in any jobs that require him to work without clothing covering his
body from his feet up to the middle of his neck, excluding his hands.
Tr. 15. With the assistance of a vocational expert, the ALJ concluded Plaintiff could perform
work as an assembler, machine tenderer, and inspector. Tr. 20.
The Appeals Council denied Plaintiff’s request for review on January 24, 2013. Tr. 1-6.
Subsequently, Plaintiff filed this action. ECF No. 1. This case is before the undersigned by
consent of the parties. Both parties have filed appeal briefs, and the case is now ready for
decision. ECF No. 11, 14.

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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 we find it possible “to draw two inconsistent positions from the evidence,
and one of those positions represents the Secretary’s findings, we 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.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 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.
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A.

The Evaluation Process:

The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his or her claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given his or her age, education, and experience. 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:
The Court has reviewed the entire transcript. The complete set of facts and arguments are

presented in the parties’ briefs and the ALJ’s opinion, and are repeated here only to the extent
necessary.
On appeal, Plaintiff raises the following issues: 1) the ALJ failed to fully and fairly
develop the record by obtaining an RFC assessment from Plaintiff’s treating physician, Dr. John
Williams; 2) the ALJ failed to properly evaluate Plaintiff’s subjective complaints; and, 3) the ALJ
erred in his RFC determination. For the reasons detailed below, we disagree.
Plaintiff contends that the ALJ erred by failing to obtain an RFC assessment from his
treating physician, Dr. John Williams. The ALJ owes a duty to a claimant to develop the record
fully and fairly to ensure his decision is an informed decision based on sufficient facts. See Stormo
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v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). In determining whether an ALJ has fully and
fairly developed the record, the proper inquiry is whether the record contained sufficient evidence
for the ALJ to make an informed decision. See Haley v. Massanari, 258 F.3d 742, 748 (8th Cir.
2001). The ALJ is only required to develop a reasonably complete record. See Clark v. Shalala,
28 F.3d 828, 830 (8th Cir. 1994). Contrary to Plaintiff’s allegation, the ALJ properly developed
the record in this case.
Here, the record contains numerous treatment records from Dr. Williams. As a brief
introduction, the record reveals that Plaintiff was involved in a motor vehicle accident in 2005,
and suffered severe burns to his head, neck, anterior trunk, and upper extremities during
extrication. Tr. 223-239. He underwent skin grafts to his arms, trunk, chin, and neck. In April
2010, Katy Trotter, a nurse practitioner with Dr. John Williams, made the following observation:
[Plaintiff] [h]as been on steady amounts of Ativan and Xanax for anxiety. Was
initially on Morphine after accident then steadily kept on Oxycodone,
Hydrocodone, and other unknown pain meds. Discussed possibility of addiction
and denied and refused help. Discussed mechanis of action of narcotics and
Benzodiazepines and addictive nature versus medications in antihistamine family
for anxiety and Neurontin for pain. Refused either. Requested pain meds.
Frustrated with other meds and alternatives or lifestyle changes. Cautioned on use
of pain clinics/prescribers as previous prescriber lost license in a pill mill type
activity. Instructed on use of Oxycodone currently and need for greater and
greater amounts and soon addictions with remaining pain. Plaintiff not receptive.
Somewhat angry. Explained that I do not perform chronic pain therapy and
offered referral to trusted pain clinic to Dr. Fisher at River Valley Musculoskeletal
and patient disappointed and refuses me to make appointment.
Tr. 276-277. This was echoed by Dr. Williams a few weeks later, when he indicated that
Plaintiff’s narcotic suppliers had “dried up,” and that he continued to “experience the need for
these and/or other alternatives.” However, at this time, Plaintiff conceded that his discomfort
was more of a drawing and pulling sensation than actual pain. Tr. 284-285. Dr. Williams
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diagnosed him with generalized pain, burns, and drug dependence. He prescribed Tramadol and
Neurontin. And, in early May 2010, Plaintiff acknowledged some improvement in his discomfort,
and conceded that his discomfort was now more in the form of frustration. Tr. 283-284. Patrick
v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003) (holding if an impairment can be controlled by
treatment or medication, it cannot be considered disabling). However, a few weeks later, he
returned with flank pain he alleged was due to kidney stones. At this time, he was given Lortab
and instructed to strain his urine. Tr. 281-282.
On May 24, 2010, Dr. Rebecca Floyd conducted a general physical examination of
Plaintiff. Tr. 261-264. The examination was essentially normal, aside from the obvious scarring
and skin grafting, decreased sensation over the burn areas, and mild-to-moderate shoulder
abduction limitation due to his skin graft restriction. She assessed him with mild to moderate
limitation with excessive lifting overhead.
On June 17, 2010, Dr. William Payne, a non-examining physician reviewed Plaintiff’s
medical records and concluded that Plaintiff could perform light work with occasional overhead
work. Tr. 267-274. This was affirmed by Dr. Alice Davidson when she reviewed Plaintiff’s
medical records on September 7, 2010. Tr. 291-292.
The record does reveal that Plaintiff continued to seek out treatment from Dr. Williams
and his associates at River Valley Primary Care Services through May 11, 2011. However, these
services were for reasons other than his alleged residual burn pain.3 He was prescribed Lortab and
Ultracet on a short-term basis for the pain associated with his kidney stones and dental issues,

3

Plaintiff sought treatment for acute bronchitis, a pariapical alveolar abscess, kidney stones, dental
carries, anxiety, and back pain resulting from a fall off of a roof. Tr. 277-281, 322-329.

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which appear to have responded well to treatment. Id. He was also prescribed Risperdal for his
anxiety. Tr. 325-326. However, on May 22, 2011, Plaintiff told Nurse Trotter that he was no
longer taking the Risperdal because he felt his anxiety was better “not taking it.” At that time,
he stated that he had fallen off of a roof while carrying shingles, injuring his back. Nurse Trotter
diagnosed him with lumbago after documenting no visible or palpable tenderness. She prescribed
Flexeril, and told him she would not give him any narcotic pain medications due to his history.
Tr. 322-323.
It is evident that the record was left open for Dr. Williams to provide a letter on the
Plaintiff’s behalf, but he declined to do so. Therefore, we find that the ALJ did not fail to develop
the record by not requesting an RFC assessment from Dr. Williams. It is clear that the limitations
imposed by Plaintiff’s scarring and skin grafts were taken into account by Drs. Floyd, Payne, and
Davidson.
In his second argument, Plaintiff asserts that the ALJ failed to properly evaluate his
subjective complaints by improperly focusing on his lack of treatment and medication, his
reported activities, and his alleged dependency on prescription pain medication. The ALJ's
credibility determinations are given deference “so long as such determinations are supported by
good reasons and substantial evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005).
“This court will not substitute its own opinion for the ALJ's, who is in a better position to gauge
credibility and resolve conflicts in evidence.” Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir.
2007) (citations omitted).
The ALJ provided several reasons for his credibility determination. One of the main
reasons for his determination is the fact that the objective medical record did not support
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Plaintiff’s subjective complaints. See Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004) (holding
that lack of objective medical evidence is a factor an ALJ may consider). However, this was not
the only reason. The record also makes clear that the Plaintiff worked odd jobs during the
relevant time period. See Naber v. Shalala, 22 F.3d 186, 188-89 (8th Cir.1994) (working
generally demonstrates an ability to perform substantial gainful activity). At the hearing, he
testified that he had worked for FEMA for eight hours per day, four days per week for a period
of time. In October 2010, he told Nurse Laura Henson at Dr. Williams’ office that he would be
starting a new job the following Monday, working with Franklin County. Tr. 328-329. In May
2011, he also indicated that he had fallen off a roof while helping a friend roof his house. Tr. 322323. His earnings records also show a number of part-time jobs that did not rise to the level of
substantial gainful activity, but did evidence his ability to work.
In addition, Dr. Williams’ treatment notes make clear that Plaintiff was dependent on
narcotics, which worsened his condition. And, contrary to Plaintiff’s contention that the ALJ’s
consideration of this factor was somehow improper, we disagree. A claimant's misuse of
medications is a valid factor in an ALJ's credibility determination. See Anderson v. Shalala, 51
F.3d 777, 780 (8th Cir. 1995) (observing that claimant's “drug-seeking behavior further discredits
her allegations of disabling pain”). Likewise, we can discern no obligation on the part of the ALJ
to make the Plaintiff aware of his consideration of the Plaintiff’s drug seeking behavior when that
factor is so clearly documented in the medical records. There is also no duty to conduct a DAA
analysis unless the ALJ determines that drugs and/or alcohol are a contributing factor to a
determination that Plaintiff is disabled. The record makes clear that the Plaintiff is not disabled,
therefore, a DAA analysis would have been of no benefit in this case.
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The evidence also makes clear that the pain and discomfort Plaintiff alleged to be severe
enough to warrant narcotic pain medication was not. And, said discomfort responded well to a
combination of Tramadol and Neurontin. See Patrick, 323 F.3d at 596. Further, Plaintiff sought
out no further treatment for this alleged discomfort after Dr. Williams refused to prescribe
narcotic pain medications. See Edwards v. Barnhart, 314 F.3d at 967 (holding that ALJ may
discount disability claimant’s subjective complaints of pain based on the claimant’s failure to
pursue regular medical treatment). And, although Plaintiff contends that his failure to do so is
excused by his financial inability to obtain treatment, we can find no evidence to support this.
The record documents nothing to suggest that Plaintiff was ever denied treatment due to his
inability to pay. Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (holding that the ALJ
correctly discounted the plaintiff’s subjective complaints when there was no evidence that the
plaintiff was ever denied medical treatment due to financial reasons). Further, we note that River
Valley Primary Care Services, the facility operated by his primary care physician Dr. Williams,
offers medical services to unisured patients and provides medication through their Prescription
Assistance

Program.

See

River

Valley

Primary

Care

Services,

About

Us,

http://www.rvpcs.org/AboutUs/tabid/13339/Default.aspx (Last accessed July 9, 2014).
Accordingly, the ALJ provided good reasons for his credibility finding, and those reasons
are supported by the record and are consistent with controlling law.
We also reject Plaintiff’s assertion that the ALJ erred in failing sufficiently to explain his
determination that his grandfather was not credible. As detailed above, the ALJ gave multiple
valid reasons for finding Plaintiff’s alleged limitations not entirely credible. See Hogan v. Apfel,
239 F.3d 958, 962 (8th Cir.2001) (deference to ALJ is appropriate when he explicitly discredits
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claimant and gives good reasons for doing so). Although he did not specifically address the
credibility of Plaintiff’s grandfather, the reasons the ALJ gave for discrediting Plaintiff would
have served as bases for discrediting his grandfather. See Young v. Apfel, 221 F.3d 1065, 1068
(8th Cir.2000) (ALJ's failure to give specific reasons for disregarding testimony of claimant's
husband was inconsequential, as same reasons ALJ gave to discredit claimant could serve as basis
for discrediting husband). Accordingly, we find that the examples cited by the ALJ constitute
good reasons for his credibility determination, which is supported by substantial evidence and will
be affirmed.
Lastly, Plaintiff contends that the ALJ erred in his RFC determination by relying on the
assessment of a non-treating medical consultant. Again, we disagree. While we do note that the
only physical RFC assessments contained in the record were completed by one time (Dr. Floyd)
or non-examining consultants (Drs. Payne and Davidson), we find that these assessments are
supported by the overall record, and therefore constitute substantial evidence. See, e.g., 20 C.F.R.
§ 416.927(d)(3) ("[B]ecause nonexamining sources have no examining or treating relationship
with you, the weight we will give their opinions will depend on the degree to which they provide
supporting explanations for their opinions.”). And, given Dr. Williams refusal to submit a letter
on Plaintiff’s behalf, we do not feel that remanding this matter for the ALJ to obtain an RFC
assessment from him is warranted.
The record also contains two mental RFC assessments. While we note that the Plaintiff
has alleged a great degree of limitation due to anxiety and depression, this is simply not supported
by the record. As documented above, Plaintiff has sought out limited treatment for his mental
impairments, and has never sought out professional mental health treatment. See Kirby v. Astrue,
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500 F.3d 705, 709 (8th Cir. 2007) (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). Instead, he obtained medication only from
his primary care doctor.
On October 18, 2010, Dr. Terry Efird conducted a mental evaluation of Plaintiff. Tr. 293297. He was vague in his responses, reporting dreams about the car accident in which he
sustained his burns, intrusive thoughts on a weekly basis, and distressing dreams.

He also

reported sleep difficulties, irritability (sometimes), difficulty concentrating, hypervigilance, and
an exaggerated startle response. Dr. Effird noted that his mood was generally dysphoric, and his
affect a bit restricted in range. He diagnosed Plaintiff with PTSD and depressive disorder NOS.
In noting that Plaintiff’s global assessment of functioning score was difficult to assess, he
assigned him a GAF of 50-60. Dr. Effird found that the Plaintiff had the capacity to perform the
basic cognitive tasks required for basic work-like activities, appeared able to tack and respond
adequately for purposes of the evaluation,

had no

remarkable problems with

attention/concentration, generally completed most tasks during this evaluation, had no remarkable
problems with persistence, appeared to have the mental capacity to persist with tasks if desired,
completed most tasks within an adequate time frame, and had no problems with mental pace of
performance.
On October 25, 2010, Dr. Cheryl Woodson-Johnson, a non-examining, consultative
psychologist completed a psychiatric review technique form and a mental RFC. Tr. 302-318.
After reviewing Plaintiff’s medical records, she concluded he would have moderate limitations
in his ability to carry out detailed instructions, maintain attention and concentration for extended
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periods, sustain an ordinary routine without special supervision and without being distracted,
complete a normal work-day and work week without interruptions from psychologically based
symptoms, perform at a consistent pace without an unreasonable number and length of rest
periods, accept instructions and respond appropriately to criticism from supervisors, respond
appropriately to changes in the work setting, and set realistic goals or make plans independently
of others. Dr. Woodson-Johnson also opined that the Plaintiff could perform work where the
interpersonal contact was incidental to the work performed, the complexity of the tasks was
learned and performed by rote with few variables and little judgment involved, and the
supervision required was simple, direct, and concrete.
We also note that the Plaintiff reported discontinuing Risperdal in May 2011, stating that
he felt his anxiety was better without medication. To the undersigned, this clearly evidences
improvement in the Plaintiff’s level of anxiety and the symptoms associated therewith. And,
given the fact that the assessments of Drs. Woodson-Johnson and Effird are basically in
concurrence as to the Plaintiff’s mental limitations, we find that the ALJ’s RFC determination is
supported by substantial evidence.
V.

Conclusion:
Accordingly, having carefully reviewed the record, the undersigned finds substantial

evidence supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision
should be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be
dismissed with prejudice.

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DATED this 16th day of July 2014.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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