Mans v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION Signed by Honorable Barry A. Bryant on July 24, 2014. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TERESA L. MANS
vs.

PLAINTIFF
Civil No. 2:13-cv-02103

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Teresa L. Mans (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying her application for
Supplemental Security Income (“SSI”) under Title XVI of the Act. The parties have consented to
the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including
conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment
proceedings. ECF No. 7.1 Pursuant to this authority, the Court issues this memorandum opinion and
orders the entry of a final judgment in this matter.
1. Background:
Plaintiff filed her application for SSI on May 26, 2010. (Tr. 13, 186-189). Plaintiff alleged
she was disabled due to depression, anxiety, post traumatic stress disorder (“PTSD”), panic disorder,
and lower back and neck problems. (Tr. 213). Plaintiff alleged an onset date of May 26, 2010. (Tr.
51). Plaintiff’s SSI application was denied initially and at the reconsideration levels. (Tr. 125-126).
Plaintiff then requested an administrative hearing on her application. (Tr. 132). This hearing
was held on January 6, 2012 in Fort Smith, Arkansas. (Tr. 48-67). Plaintiff was present and was
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The docket numbers for this case are referenced by the designation “ECF. No.” The transcript pages for
this case are referenced by the designation “Tr.”

represented by counsel, Abbie Rice, at this hearing. Id. Plaintiff testified at this hearing. Id. On
the date of this hearing, Plaintiff was thirty-five (35) years old, which is defined as a “younger
person” under 20 C.F.R. § 416.963(c)(2009). (Tr. 51). The Plaintiff testified she had obtained a
General Equivalency Diploma (“GED”). (Tr. 52).
On April 13, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI. (Tr. 10-22). In this decision, the ALJ determined Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since May 26, 2010, the application date. (Tr. 15, Finding 1). The ALJ
determined Plaintiff had the severe impairments of degenerative disc disease of the cervical spine,
hepatitis C, a major depressive disorder, and an anxiety disorder. (Tr. 15, Finding 2). The ALJ also
determined, however, the Plaintiff did not have an impairment or a combination of impairments that
met or medically equaled one of the listed impairments in the Listing of Impairments in Appendix
1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 15, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 17, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and found her claimed
limitations were not totally credible. Id. Second, the ALJ determined, based upon his review of
Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record, that Plaintiff
retained the RFC to perform the full range of light work except able to perform only simple tasks
with simple instructions and cannot tolerate more than incidental contact with public. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 20, Finding 5). The ALJ
determined Plaintiff was able to perform her PRW as a poultry eviscerator. Id. Alternatively, the
ALJ also determined there was other work existing in significant numbers in the national economy
Plaintiff could perform. (Tr. 20-21, Finding 5). The vocational expert (“VE”) testified at the
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administrative hearing regarding this issue. (Tr. 64-66). Based upon the VE’s testimony, the ALJ
determined Plaintiff retained the ability to perform other work such as machine tenders with 2,607
such jobs in Arkansas and 250,607 such jobs in the nation; production and assembly work with 1,231
such jobs in Arkansas and 79,877 such jobs in the nation; and inspectors, checkers, examiners, and
weighers with 167 such jobs in Arkansas and 13,190 such jobs in the nation. (Tr. 21, Finding 5).
The ALJ then used Medical-Vocational Guidelines Rule 202.20 to reach a conclusion of “not
disabled,” based on Plaintiff’s age, education, vocational background, and residual functional
capacity. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 202.20. (Tr. 21). The ALJ then determined
Plaintiff had not been under a “disability,” as defined by the Act, from May 26, 2010, through the
date of the decision. (Tr. 22, Finding 6).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 8). On
February 12, 2013, the Appeals Council declined to review this decision. (Tr. 1-3). On April 12,
2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this
Court on April 12, 2013. ECF No. 7. Both Parties have filed appeal briefs. ECF Nos. 10, 11. This
case is now ready for decision.
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as there is substantial evidence in the record supporting the Commissioner’s decision, the
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Court may not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome or because the Court would have decided the case differently. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the
findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the burden of
proving his or her disability by establishing a physical or mental disability that lasted at least one
year prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160
F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a
“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 or her
disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See
42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)
whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
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or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3. Discussion:
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 10, Pg. 1-15. Specifically, Plaintiff claims the ALJ
erred: (1) in failing to fully and fairly develop the record, (2) in failing to evaluate Plaintiff’s primary
impairment which was personality disorder, and (3) the ALJ erred in his residual functional capacity
determination. Id. In response, the Defendant argues the ALJ did not err in any of his findings. ECF
No. 11. The Court will address each of the arguments Plaintiff has raised.
A. Development of the Record
Plaintiff claims the ALJ failed to fully and fairly develop the record as to her severe
impairment of degenerative disc disease. ECF No. 10, Pg. 5-8. Plaintiff specifically claims the ALJ
should have ordered a physical Consultative Examination, either general or orthopaedic, because the
severe impairment required examining source medical development. Id. at 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,
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830 (8th Cir. 1994) (ALJ not required to function as claimant’s substitute counsel, but only to
develop a reasonably complete record); see also 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”).
It is incumbent upon the ALJ to establish by medical evidence that the claimant has the
requisite RFC. The ALJ in this case did not seek a Consultative Examination to determine the
Plaintiff’s physical limitations. An ALJ is not required to order a consultative evaluation; he “simply
has the authority to 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); see also Haley, 258 F.3d
at 749 (ALJ need not order additional examinations if there is substantial evidence in the record to
make an informed decision). The Court must determine if the lack of a physical Consultative
Examination is unfair or prejudicial.
The Court has reviewed the medical evidence in the record related to Plaintiff’s degenerative
disc disease. (Tr. 286-508). Submitted into the record was an MRI study of her cervical spine
conducted prior to the application date, and it revealed only small disc bulges at the C4-5 and C5-6
levels with a tiny disc protrusion at the C6-7 level. (Tr. 325, 345). During the relevant time period
which is from May 26, 2010, the application date, through April 13, 2012, the date of the decision,
Plaintiff went to the emergency room at Johnson Regional Medical Center (“JRMC”) twice. On July
4, 2010 she complained of fever and low back pain. (Tr. 436). An X-ray was ordered, and she was
ultimately diagnosed with only viral syndrome. (Tr. 437). Her treatment included rest, fluids, and
Tylenol or Ibuprofen. Id. Plaintiff returned to JRMC on September 7, 2010 and again complained
of low back pain. (Tr. 443). She was diagnosed with exacerbation of chronic back pain. (Tr. 444).
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The emergency room physician decided to treat her conservatively with Flexeril and Norco. Id.
The Court concurs with the ALJ’s determination that despite having degenerative disc
disease, she sought no further medical treatment for back pain for nearly nine months. (Tr. 18). In
addition, the Plaintiff sought treatment only twice during the relevant time period. (Tr. 436-437,
443-444). Without evidence she has been denied medical treatment due to financial constraints or
she attempted to obtain low cost or no cost treatment, an argument about lack of funds will not
succeed. See Clark , 28 F.3d at 831; Murphy v. Sullivan, 953 F.2d 383, 386 (8th Cir. 1992). There
is no evidence in the record she required a referral to a specialist or more extensive treatment such
as surgery for her degenerative disc disease. (Tr. 286-508). The ALJ considered Plaintiff’s activities
of daily living, and in her Function Report dated June 16, 2010, Plaintiff reported she is able to
prepare simple meals, mow the lawn, and wash dishes. (Tr. 246). She also attends appointments,
goes shopping, and watches television. (Tr. 247-248).
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, 45 (8th Cir. 1994). In this case, the Court finds any error in failing to develop the record
to obtain a physical Consultative Examination was harmless.
B. Steps Two and Three of the Analysis
Plaintiff claims the ALJ erred at Steps Two and Three of the sequential analysis by not
making a determination as to the severity of the Plaintiff’s personality disorder, not reviewing
whether it met or equaled a listing, specifically listing 12.08, and not performing the Psychiatric
Review Technique (“PRT”) in regards to the Plaintiff’s personality disorder. (Tr. 8). A “severe
impairment is defined as one which ‘significantly limits [the claimant’s] physical or mental ability
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to do basic work activities.’” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006) (quoting 20
C.F.R. § 416.920(c)). An impairment or combination of impairments is not severe when medical
and other evidence establish only a slight abnormality or a combination of slight abnormalities that
would have no more than a minimal effect on an individual’s ability to work. 20 C.F.R. § 416.921.
Alleged impairments may not be considered severe when they are stabilized by treatment and
otherwise are generally unsupported by the medical record. Johnston v. Apfel, 210 F.3d 870, 875
(8th Cir. 2000); see also Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000) (Plaintiff bears the
burden to establish severe impairments at Step Two of the sequential evaluation).
In Finding 2, the ALJ ultimately determined only the Plaintiff’s impairments of degenerative
disc disease of the cervical spine, hepatitis C, major depressive disorder, and anxiety disorder were
severe because singly, and in combination, they significantly limit [her] ability to perform basic work
activities. (Tr. 15). The Court finds the ALJ did not fail to evaluate the Plaintiff’s personality
disorder at Step Two, but rather found it to be a nonsevere impairment.
There is evidence in the decision showing the ALJ considered her personality disorder. For
instance, the ALJ wrote, “Although [Dr. Peacock] found the [Plaintiff] might well be experiencing
symptoms of anxiety and depression as well as personality disorder, he noted these results were
invalid considering [her] apparent malingering on the cognitive portion of the evaluation.” (Tr. 19).
In addition, Dr. Peacock assigned a rule out diagnosis of major mood disorder and social phobia with
a strong indication of a personality disorder. Id. The ALJ assigned Dr. Peacock’s opinion as to the
rule out diagnosis significant weight, however, none of his findings would prevent the Plaintiff from
performing unskilled work. Id. The ALJ was specific in his analysis of Plaintiff’s mental
impairments, and even if Plaintiff had an additional severe mental impairment, the evidence of
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record does not suggest additional functional limitations beyond those the ALJ specified in his RFC
determination.
The ALJ continues to discuss the Plaintiff’s psychiatric treatment and details the evidence
supporting major depressive disorder and anxiety as the only severe mental impairments. (Tr. 1720). While acknowledging Dr. Reid diagnosed the Plaintiff with personality disorder, the Court
agrees with the ALJ’s assignment of little weight to Dr. Reid’s medical opinion because it is
inconsistent with therapy, medication management, and the opinions provided by Drs. Efird and
Peacock. (Tr. 19-20, 464). Based on the foregoing, the Court finds there is substantial evidence to
support the ALJ’s determination to make Plaintiff’s personality disorder a nonsevere impairment.
At Step 3, the Plaintiff has the burden of proof to establish her impairments meet or equal
a listing. Sullivan v. Zebley, 493 U.S. 521, 530-531 (1990) (superseded by statute on other grounds).
In order to meet a listing, the impairment must meet all of the listing specified criteria. Id. at 530.
“An impairment that manifests only some of these criteria, no matter how severely, does not
qualify.” Id. The claimant “must present medical findings equal in severity to all the criteria for the
one most similarly listed impairment.” Marciniak v. Shalala, 49 F.3d 1350, 1353 (8th Cir. 1995).
In Finding 3, the ALJ determined the Plaintiff did not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments. (Tr. 15).
The ALJ specifically found the severity of her mental impairments do not meet or medically equal
the criteria of listings 12.04 or 12.06. Id. The Court acknowledges the ALJ did not explicitly
evaluate listing 12.08, but it is unnecessary because the Plaintiff’s personality disorder was found
to be a nonsevere impairment in Finding 2. (Tr. 15).
Nevertheless, in the Eighth Circuit, while it is preferable an ALJ address a specific listing,
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the failure to do so is not reversible error if the record supports the overall conclusion. See Pepper
ex rel. Gardner v. Barnhart, 342 F.3d 853, 855 (8th Cir.2003). Therefore, as long as the record
supports the “overall conclusion” that Plaintiff does not meet the requirements of any of the listings,
the ALJ did not err by failing to provide his rationale. The ALJ specifically evaluated listings 12.04
and 12.06 and completed a PRT analysis. (Tr. 15-17). The PRT is required in evaluating “mental
impairments.” 20 C.F.R. § 416.920a(a). When mental impairments are present, the PRT is
mandatory. Id. (“[W]hen we evaluate the severity of mental impairments . . . we must follow a
special technique at each level in the administrative review process.”); Nicola v. Astrue, 480 F.3d
885, 887 (8th Cir. 2007). The PRT must be documented in the ALJ’s written decision, including the
findings and conclusions based on the PRT. 20 C.F.R. § 416.920a(e)(4). The technique involves
determination of whether there is a mental impairment followed by a rating of the degree of
functional limitation resulting from the mental impairment. Nicola, 480 F.3d at 887.
The ALJ completed a PRT and determined her activities of daily living has only mild
restriction. (Tr. 16). The ALJ cited to the Plaintiff’s report to Dr. Peacock stating she feeds the dog,
does laundry, handles her own finances, and does her own shopping. Id. At the hearing, she testified
she sleeps a lot and showers once or twice a week. Id. In social functioning, the ALJ found she has
moderate difficulties due to her spending most of her time in her room, avoidance of social contact,
and leaving a recent job because of social discomfort. Id. At the hearing, she testified she lives with
her boyfriend, but avoids other social contact. Id. The ALJ decided she has moderate difficulties
with concentration, persistence, or pace. (Tr. 16). The ALJ cited to Dr. Peacock’s finding she was
at least in the low average range of intelligence, her reported memory problems, and her ability to
work in the past and handle her own finances. Id. The claimant testified she obtained her GED, she
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could read and write, make change, do simple math, and completed the disability forms with
assistance. Id.
The PRT analysis provided by the ALJ reveals the Plaintiff would not have met the
requirements of listings 12.04 and 12.06, and the Court concurs with his decision. Due to the fact
the B criteria sections of listings 12.04, 12.06, and 12.08 are identical and are required to meet or
medically equal either listing, the Court finds an evaluation of listing 12.08 would not change the
Step 3 determination. 20 C.F.R. Part 404, Subpart P, Appendix 1. Based on the foregoing, the
record supports the ALJ determination that the Plaintiff did not meet or medically equals any of the
listed impairments.
C. RFC Determination
Plaintiff claims the ALJ erred in his RFC determination because there is no substantial
evidence to support it with the primary focus upon the physical RFC. ECF No. 10, Pg. 11. The ALJ
determined the Plaintiff had the RFC to perform light work2 as defined in 20 C.F.R. 416.967(b)
except [she] is able to perform only simple tasks with simple instructions and cannot tolerate more
than incidental contact with the public. (Tr. 17). RFC is defined as the individual’s maximum
remaining ability to do sustained work activity in an ordinary work setting “on a regular and
continuing basis.” 20 C.F.R. § 416.945; Social Security Ruling (SSR) 96-8p (1996). It is assessed
using all relevant evidence in the record. Id. This includes medical records, observations of treating
2

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. If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long
periods of time. 20 C.F.R. § 416.967(b).

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physicians and others, and the claimant’s own descriptions of her limitations. Guilliams v. Barnhart,
393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004).
Limitations resulting from symptoms such as pain are also factored into the assessment. 20 C.F.R.
§ 416.945(a)(3). The United States Court of Appeals for the Eighth Circuit has held a “claimant’s
residual 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).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering medical
evidence exclusively. Cox v. Astrue, 495 F. 3d 614 at 619 citing Lauer, 245 F.3d at 704; Dykes v.
Apfel, 223 F.3d 865, 866 (8th Cir. 2000) (per curiam) (“To the extent [claimant] is arguing residual
functional capacity may be proved only by medical evidence, we disagree.”). Even though the RFC
assessment draws from medical sources for support, it is ultimately an administrative determination
reserved to the Commissioner. Cox, 495 F.3d at 620, 20 C.F.R. §§ 416.927(e)(2), 416.946 (2006).
Previously mentioned above, the Plaintiff received medical care for her physical impairments
during emergency room visits. (Tr. 436-437, 443-444). She required only conservative treatment
of prescription medications and a referral to a specialist was not found to be necessary. Id. Despite
having degenerative disc disease diagnosed by an MRI study of her cervical spine, she sought no
further medical treatment for back pain for nearly nine months. (Tr. 298-346). In addition, the
Plaintiff sought treatment only twice during the relevant time period. (Tr. 436-437, 443-444). The
Court finds the above records constitute substantial evidence to support the ALJ’s RFC of light
work. (Tr. 17-20). For the reasons stated above, an award of benefits is unwarranted.
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4. Conclusion:
Based on the foregoing, the undersigned finds the decision of the ALJ, denying benefits to
Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating
these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 24th day of July 2014.
/S/ Barry A. Bryant
HONORABLE BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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