Anderson v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on December 3, 2014. (lw)

THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
LEWIS D. ANDERSON

PLAINTIFF

v.

Civil No. 13-2249

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Lewis D. Anderson, 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 security income 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
Plaintiff applied for DIB and SSI on February 21, 2012. (Tr. 10.) Plaintiff alleged an onset date

of January 1, 2008 due to depression, anxiety, lower back problems, knee problems, cysts on chest,
psoriasis, and panic attacks. (Tr. 139.) Plaintiff’s applications were denied initially and on reconsideration.
Plaintiff requested an administrative hearing, which was held on November 5, 2012 in front of
Administrative Law Judge (“ALJ”) Ronald L. Burton. Plaintiff was present to testify and was represented
by counsel. The ALJ also heard testimony from Vocational Expert (“VE”) Debra Steele. (Tr. 24.) Plaintiff
amended his onset date to October 1, 2009 at the hearing. (Tr. 29.)

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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.

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At the time of the administrative hearing, Plaintiff was 48 years old, and possessed a GED. (Tr.
27.) The Plaintiff had past relevant work experience (“PRW”) as a general laborer and bricklayer
apprentice. (Tr. 18.)
On November 21, 2012, the ALJ concluded that Plaintiff suffered from the following severe
impairments: disorder of the back, disorder of the knees, depression, and anxiety. (Tr. 13.) The ALJ found
that Plaintiff maintained the residual functional capacity to perform medium work, “except that he can
perform work where interpersonal contact is routine but superficial, the complexity of tasks is learned by
experience and involves several variables and the use of judgment within limits and the supervision
required is little for routine tasks but detailed for nonroutine tasks.” (Tr. 15.) After eliciting testimony from
the VE regarding Plaintiff’s PRW, the ALJ determined that Plaintiff is capable of performing his PRW as
a general laborer and brick layer apprentice. (Tr. 18.)
Plaintiff requested a review by the Appeals Council on December 3, 2012. (Tr. 6.) The Appeals
Council declined review on October 9, 2013. (Tr. 1.) Plaintiff filed this appeal on November 21, 2013.
(ECF. No. 1.) Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 13,
14.)
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.

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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. 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: (1) whether the claimant has engaged in substantial gainful activity since
filing his 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 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
Plaintiff raises four issues on appeal: 1) the ALJ did not fully and fairly develop the record; 2) the

ALJ did not include all of Plaintiff’s severe impairments; 3) the ALJ’s RFC determination is inconsistent

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with the record; and 4) the ALJ failed to ask the VE if Plaintiff could perform his past relevant work. (ECF.
13 at 6-14.)
Because Plaintiff’s medical history is pertinent to each of these arguments, it will be summarized
here prior to addressing each argument in turn.
Plaintiff saw Dr. Terry Clark of Cooper Clinic on May 3, 2001 for treatment of depression due to
marital problems. Plaintiff reported using a family member’s Prozac and reporting that it helped. Dr. Clark
gave him some samples of Prozac and stated he would recheck him in two weeks. There are no further
records from Dr. Clark. (Tr. 209.)
Plaintiff saw Dr. Wendell Weed Jr. of North Hills Dermatology Clinic in October and November
of 2008 for psoriasis and acne. He was given prescriptions for both. (Tr. 213.) A cystic lesion was found
on his neck. (Tr. 216.)
Plaintiff saw Dr. Cyril Severns of The Dermatology Clinic on May 5, 2011 for psoriasis. He was
prescribed several ointments. (Tr. 218-19.)
Plaintiff was turned down for disability benefits initially on April 6, 2012, and on reconsideration
on April 23, 2012. (Tr. 44-47.)
Plaintiff was examined by consulting examining physician Dr. Chester Lawrence Carlson, D.O.
on March 12, 2011. Dr. Carlson’s notes indicate that Plaintiff reported his back problems started in 2008,
his knee pain started about six months prior, he noticed the cyst on his chest seven years ago, the psoriasis
was diagnosed in 1980, the depression was diagnosed in 2001, and the panic attacks started about eight
years ago. (Tr. 221.) Dr. Carlson diagnosed depression and anxiety by patient history, chronic low back
pain, knee pain, and small subcutaneous lipoma on the chest wall. (Tr. 225.) He ordered x-rays of the
knees and back. The knee x-rays were normal. The back x-ray showed mild anterior spurring at L3 and
L4, otherwise the back x-ray was normal. (Tr. 225.) In reference to the straight leg test, he stated that he
felt that the limitation was due to hamstring tightness, “not true back pain.” (Tr. 224.) His assessment

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stated that Plainitff was “mildly limited in his ability to bend, squat, lift secondary to back and knee pain.”
(Tr. 225.)
Plaintiff was seen for a psychological examination by consulting examiner Dr. Spray, PhD. He
diagnosed Dysthymia, Anxiety Disorder NOS, and Intermittent Explosive Disorder for Axis I, with
Antisocial Personality Disorder for Axis II. (Tr. 228.) As to Plaintiff’s adaptive functioning, Dr. Spray
noted only mild impairment in his capacity to cope with work-like tasks and his attention and
concentration. The most serious issue noted was Plaintiff’s ability to interact in a socially adequate manner.
Specifically, it was noted that “[i]n a job setting, he is likely to be avoidant and easily angered.” (Tr. 229.)
Other adaptive functioning categories were normal. (Tr. 229.)
Plaintiff was seen at the Good Samaritan Clinic for back pain and psoriasis on May 30, 2012 and
June 30, 2012. (Tr. 295-96.) A spinal x-ray taken on June 5, 2012 showed “mild degenerative disc
disease” at the L5-S1 level. Alignment and positioning were normal. (Tr. 297.) He had a followup
appointment on July 11, 2012. (Tr. 304.) He presented on October 3, 2012 for flu, blood pressure, and
depression. (Tr. 303.)
A. Record Was Fully and Fairly Developed
Plaintiff argues that the ALJ failed to fully develop the record because he did not request a medical
source statement from Dr. Spray, and denied Plaintiff’s request that he do so. (Pl.’s Br. at 6-8.)
The ALJ owes a duty to a claimant to develop the record fully and fairly to ensure her decision is
an informed decision based on sufficient facts. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
“However, the burden of persuasion to prove disability and demonstrate RFC remains on the claimant.”
Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010).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. Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001). A reversal for
failure to develop the record is “only warranted where such failure is unfair or prejudicial.” Id.

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In this case, the record shows that, prior to being denied benefits, Plaintiff made only one visit to
a physician complaining of depression. After he was denied benefits, only one of four visits to Good
Samaritan Clinic featured depression as the reason for coming to the clinic. This visit was one month prior
to his administrative hearing, and shortly after he received notice of his hearing from the Agency on
September 18, 2012. (Tr. 95.) Thus, the sparsity of treatment visits do not support his allegation of
disability due to depression. See Shannon v. Chater, 54 F.3d 484, 487 (8th Cir.1995) (failure to seek
medical treatment may be inconsistent with a finding of disability) Further, the timing of Plaintiff’s 2012
complaint of depression suggests that the visit was for the purpose of seeking benefits rather than for
legitimate treatment. Id. at 486. (“encounters with doctors [that] appear to be linked primarily to [a] quest
to obtain benefits, rather than to obtain medical treatment,” are inconsistent with a finding of disability.)
Nor does the record indicate that Plaintiff was ever turned away from treatment for lack of funds
prior to 2012. See Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992) (a lack of evidence that the
claimant attempted to find any low cost or no cost medical treatment for her alleged pain and disability is
inconsistent with a claim of disabling pain.) Further, as both Plaintiff’s son and wife are disabled, and his
son receives regular home health care, (Tr. 41-42), it is unlikely that Plaintiff was unaware of the low-cost
health care options prior to 2012, such as those from the Good Samaritan Clinic.
Despite the Plaintiff having only a single visit to a physician for depression prior to 2012, the ALJ
nonetheless ordered a consultative examination with Dr. Spray. This examination revealed either normal
functioning or mild impairment. The most serious comment was that Plaintiff could be “easily angered”
in a work setting. The Mental RFC provided by nonexamining Agency Physician Dr. Winston Brown
found that the Plaintiff was moderately limited in four of twenty categories. The remainder were not
significantly limited. (Tr. 278.) He also stated that he had “moderate limits in socialization.” (Tr. 279.)
Given Plaintiff’s failure to seek treatment for mental impairment, the results of the Mental CE, and
the results of the Mental RFC, it appears that the ALJ had sufficient evidence upon which to base his

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decision. Therefore, his refusal to obtain a medical source statement from Dr. Spray did not constitute
error.
B. ALJ Properly Determined Step Two Severe Impairments
Plaintiff argues that the ALJ erred in failing to find that his psoriasis and Dr. Spray’s diagnosis
of intermittent explosive disorder and antisocial personality disorder were severe impairments at Step Two.
The burden is upon the plaintiff to establish that an impairment is severe. Kirby v. Astrue, 500 F.3d
705, 707 (8th Cir. 2007). This burden is not a difficult one for the Plaintiff to meet. Id. However, it is also
not a “toothless standard” requiring the ALJ to simply rubber-stamp any impairment as severe. Id. A mere
diagnosis is not sufficient to prove disability, absent some evidence to establish a functional loss resulting
from that diagnosis. Trenary v. Bowen, 898F.2d 1361, 1364 (8th Cir. 1990). The Eighth Circuit has
repeatedly upheld the Commissioner in finding that a claimant did not provide sufficient evidence of
severity at Step Two. Id. See e.g. Id. at 708 (hand tremors not severe when there was evidence that
claimant exaggerated or invented ailments, medical exams proved normal, and any genuine impairment
was slight); Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir.1997) (claimant never followed a regular
regime of medical treatment for physical complaints and used no prescription medications for pain or for
other conditions; Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996.) (generalized osteoarthritis with
significant osteoarthritis in both knees which could be controlled with mild anti-inflammatories was not
severe).
The ALJ expressly found that Plaintiff’s’s psoriasis had not caused any functional loss.
Specifically, “the Plaintiff has had psoriasis since he was 17 years-old, and it has not prevented him from
performing substantial gainful activity or other worklike activities in the past.” (Tr. 13.) Nor does a review
of the record reveal that he complained of any loss of function to his physicians when he sought treatment
for his psoriasis. Finally, the CE evaluation by Dr. Carlson did not note any physical limitation due to the
psoriasis. (Tr. 221.) Therefore the ALJ did not err in finding his psoriasis to be a nonsevere impairment.

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The ALJ did not discuss why he did not include the diagnosis of intermittent explosive disorder
or antisocial personality disorder as a severe impairment in the Step Two section of his opinion. However,
he expressly noted the lack of treatment for mental impairments later in the opinion. (Tr. 17.) He also noted
that the Plaintiff “had not lost jobs due to his problems getting along with others.” (Tr. 17.)He also noted
Dr. Spray’s finding that Plaintiff would be “avoidant and easily angered,” but stated “that limitation is
accounted for with the finding that he could engage in routine, but superficial, interpersonal contact and
do tasks learned by experience and involving limited use of judgment.” Additionally, this Court notes that
Plaintiff did not allege either of these conditions in his disability application, either by name or by
symptom. See Dunahoo v. Apfel, 241 F.3d 1033, 1039 (the fact that claimant did not allege disabling
condition in his application is significant).
Thus, although it would have been preferable if the ALJ had discussed the intermittent explosive
disorder and antisocial personality disorder in the Step Two section of his decision as well as later in the
opinion, his failure to do so was merely a deficiency in opinion writing. Nor does it appear that repeating
the pertinent information in two sections of the opinion would have changed to outcome of the case. See
Reeder v. Apfel, 214 F.3d 984, 988 (8th Cir. 2000) ( “[A] deficiency in opinion-writing is not a sufficient
reason to set aside an ALJ's finding where the deficiency had no practical effect on the outcome of the
case.”).
C. RFC Assessment Supported By Substantial Evidence
Plaintiff argues that the ALJ erred in his assessment of Overall RFC because it is inconsistent with
the medical record and the ALJ erred in his credibility analysis. Specifically, he argues that an assessment
of medium work is inconsistent with Plaintiff’s knee and back pain, that the RFC is inconsistent with Dr.
Spray’s mental impairment findings, and that the ALJ placed too much emphasis on Plainitff’s failure to
seek treatment. (Pl’s Br. at 10-13.)

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Plaintiff’s failure to seek treatment for mental health impairments has already been addressed
above.
Regarding Plaintiff’s allegations of knee and back pain, the ALJ expressly noted that Plaintiff’s
allegations of knee and back pain were not supported by the objective medical evidence. He correctly noted
that the x-rays taken in June 2012 showed only mild degenerative disc disease. He specifically referenced
the Physical RFC completed by nonexamining Agency Physician Dr. Ramona Bates on April 4, 2012. She
expressly noted the normal knee x-rays and the mild disc disease on the back x-ray from Plaintiff’s CE
with Dr. Carlson. She noted the lack of care for back and knees. She assessed a medium exertional RFC
with no additional limitations. (Tr. 237-243.)
The ALJ also noted that, although Plaintiff alleged that his back pain started in 2008, he did not
seek treatment for it until 2012. Finally, the ALJ noted that the Plaintiff’s own pain report conflicted with
the function reports provided by Plaintiff’s and his wife. (Tr. 16.) This Court additionally notes that
Plaintiff did not seek treatment for his knees and back until after he had been turned down for disability
benefits.
Thus, the ALJ has provided several good reasons for discrediting Plaintiff’s allegations regarding
his knees, back, and mental impairments, including a failure to seek treatment, and lack of objective
medical evidence to support Plaintiff’s allegations. These are well-established reasons for discrediting a
Plaintiff’s allegations in the Eighth Circuit. 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); Shannon, 54 F.3d at 487
(failure to seek medical treatment may be inconsistent with a finding of disability")
Because the ALJ has provided good reasons for discrediting Plaintiff’s allegations of subjective
pain, this Court will defer to the ALJ's credibility determination. See Finch v. Astrue, 547 F.3d 933, 935-36
(8th Cir. 2008)(we defer to the ALJ’s credibility determination, because it was based on multiple valid
reasons.) Further, this Court finds that ALJ’s RFC findings are consistent with the evidence in the record

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and are therefore supported by substantial evidence. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir.
2005) (disability claimant has burden to establish RFC).
D. Step Four Evaluation Did Not Require Hypothetical to VE
Plaintiff argues that the ALJ erred in determining that he could perform past relevant work because
the ALJ did not present a hypothetical question to the VE inquiring if Plaintiff could perform past work.
The Eighth Circuit has clearly stated that VE testimony is not required until Step Five of the
analysis. Banks v. Massanari, 258 F.3d 820, 827 (8th Cir. 2001) This holds true for both exertional and
nonexertional impairments. Id. “Vocational expert testimony is not required until step five when the
burden shifts to the Commissioner, and then only when the claimant has nonexertional impairments, which
make use of the medical-vocational guidelines, or ‘grids,’ inappropriate.” Id.
In this case, the ALJ questioned the VE about the requirements of Plaintiff’s past work. (Tr. 3132.) He was not required to pose a hypothetical to the VE in order to determine that Plaintiff could perform
past work, and therefore did not err when he did not ask. Plaintiff’s reliance on SSR 82-62 for this issue
is misplaced.
IV.

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

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

DATED this 3rd day of December 2014.

J. Marschewski

/s/

HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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