Clark v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 16, 2016. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BRECKEN CLARK
vs.

PLAINTIFF
Civil No. 2:15-cv-02100

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Brecken Clark (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying his 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. 5.1 Pursuant to this authority, the Court issues
this memorandum opinion and orders the entry of a final judgment in this matter.
1.

Background:
On July 20, 2012, Plaintiff filed his disability application. (Tr. 15, 131-135). In this

application, Plaintiff alleges being disabled due to bipolar disorder and a prior attempt at suicide.
(Tr. 158). Plaintiff’s application was denied initially and again upon reconsideration. (Tr. 74-76).
Thereafter, Plaintiff requested an administrative hearing on his application. (Tr. 93-97). This
hearing request was granted, and an administrative hearing was held on April 11, 2013 in Fort Smith,

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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.”

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Arkansas. (Tr. 31-73). At this hearing, Plaintiff was present and was represented by Jennifer
DeShawn. Id. Only Plaintiff testified at this hearing. Id. At this hearing, Plaintiff testified he was
thirty-two (32) years old, which qualifies as a “younger person” under 20 C.F.R. § 416.963(c)
(2008). (Tr. 34). As for his education level, Plaintiff also testified he had completed high school.
Id.
On November 12, 2013, the ALJ entered an unfavorable decision denying Plaintiff’s
application for SSI. (Tr. 12-26). In this decision, the ALJ found Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since July 20, 2012, his application date. (Tr. 17-18, Finding
1). The ALJ determined Plaintiff had the following severe impairments: affective disorder, mood
disorder, drug abuse, personality disorder, and anxiety disorder. (Tr. 18, Finding 2). The ALJ also
determined Plaintiff’s impairments did not meet or medically equal the requirements of any of the
Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 18-20,
Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his
Residual Functional Capacity (“RFC”). (Tr. 20-23, Finding 4). First, the ALJ evaluated Plaintiff’s
subjective complaints and found his claimed limitations were not entirely credible. Id. Second, the
ALJ determined Plaintiff retained the capacity to perform the following:
After careful consideration of the entire record, the undersigned finds that, based on
all of the impairments, including the substance use disorder, the claimant has the
residual functional capacity to perform a full range of work at all exertional levels but
that he has nonexertional limitations. The claimant has mild limitation in the ability
to understand, remember and carry out simple instructions and moderate limitation
in the ability to make judgments on simple work-related decisions and understand,
remember and carry out complex instructions. He has marked limitation in the
ability to make judgments on complex work-related decisions, interact appropriately
with the public, supervisors and coworkers and respond appropriately to usual work
situations and to changes in a routine work setting.
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Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff had no PRW.
(Tr. 23, Finding 5). The ALJ then considered whether Plaintiff retained the capacity to perform other
work existing in significant numbers in the national economy. (Tr. 23-26, Findings 9-15). The ALJ
first assessed whether Plaintiff could perform other work, considering his substance use disorder.
(Tr. 23-24, Finding 9). Considering his substance use disorder, the ALJ determined there were “no
jobs that exist in significant numbers in the national economy that the claimant can perform.” Id.
The ALJ then assessed whether Plaintiff could perform other work existing in significant
numbers in the national economy if he stopped his substance use. (Tr. 24-26, Finding 15). In
considering this issue, the ALJ sent post-hearing interrogatories to Vocational Expert (“VE”) Debra
Steele. (Tr. 235-239). Based upon her responses to these interrogatories, the ALJ determined
Plaintiff retained the capacity to perform many different occupations, including the following: (1)
bus person with 1,134 such jobs in Arkansas and 219,256 such jobs in the nation; (2) hand packer
with 1,517 such jobs in Arkansas and 163,170 such jobs in the nation; and (3) store laborer with
2,548 such jobs in Arkansas and 96,653 such jobs in the nation. (Tr. 25-26).
Because Plaintiff could perform this other work if he stopped his substance use, the ALJ
found Plaintiff’s substance use disorder was a contributing factor material to the determination of
disability. (Tr. 26, Finding 16). Further, because Plaintiff’s substance use disorder was a
contributing factor material to the determination of disability, the ALJ determined Plaintiff had not
been under a disability at any time from the date his application was filed through the date of the
ALJ’s decision or through November 12, 2013. (Tr. 26, Finding 16).
Thereafter, Plaintiff requested the review of the Appeals Council. (Tr. 7). On March 25,

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2015, the Appeals Council denied Plaintiff’s request for review. (Tr. 1-3). On May 21, 2015,
Plaintiff filed his Complaint in this matter. ECF No. 1. The Parties consented to the jurisdiction of
this Court on June 1, 2015. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 9, 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)
(2010); 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 that supports the Commissioner’s decision, the
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 and that 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,

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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
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 his appeal brief, Plaintiff raises three arguments for reversal: (A) he received inadequate

notice of his hearing which denied him Due Process under the 5th Amendment to the U.S.
Constitution; (B) he was prejudiced because the ALJ’s notice was deficient and “violated numerous
regulations and procedures within Social Security”; (C) the ALJ erred in finding his “alleged drug
abuse was a contributing factor material to disability”; and (D) the ALJ erred by failing to fully and

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fairly develop the record. ECF No. 9 at 8-19. In response, Defendant claims Plaintiff has supplied
no basis for reversal in this matter. ECF No. 10. The Court will consider each of these arguments
for reversal.2
A.

Notice of the Hearing

Plaintiff claims the ALJ “considered issues outside the scope of the Notice of Hearing” which
resulted in “effectively denying the Plaintiff the opportunity to object and be heard, and an
opportunity to adequately prepare for his hearing.” ECF No. 9 at 8-14. Plaintiff’s only argument
on this issue is that the ALJ did not include in the hearing notice that he would consider “whether
a substance abuse disorder was a contributing factor material to the determination of disability.” Id.
Plaintiff claims he first learned of this issue after the hearing itself, and the ALJ’s failure to notify
Plaintiff before the hearing in this matter amounted to deficient notice under the Fifth Amendment.
Id. Plaintiff also argues the ALJ’s failure to provide notice on this issue violates Social Security’s
internal regulations. Id.
Upon review, the Court finds this issue is entirely without merit. As Plaintiff himself notes,
the notice included a statement of the legal standard to be followed: “The ALJ will consider whether
you are disabled under section 1614(a)(3) of the act.” (emphasis added). This provision is codified
in 42 U.S.C. § 1382c (2004). Under 42 U.S.C. § 1382c(a)(3)(J), the Act clearly states that “an
individual shall not be considered to be disabled for purposes of this subchapter if alcoholism or
drug addiction would (but for this subparagraph) be a contributing factor material to the
Commissioner’s determination that the individual is disabled.” (emphasis added). This provision
clearly notifies Plaintiff of the issues to be addressed at this hearing, and there is no basis for reversal

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However, because Plaintiff’s first and second arguments both address the hearing notice, the
Court will address these arguments together under “A.”

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on this issue.3
B.

Disability Determination

Plaintiff claims the ALJ erred in finding his “drug use was a contributing factor material to
the determination of disability.” ECF No. 9 at 14-17. Plaintiff claims the ALJ had no clear basis
for making this determination but merely speculated that Plaintiff’s drug use was a contributing,
material factor. Id. In response, Defendant claims there was a sufficient basis for finding Plaintiff’s
drug use was a contributing factor material to the disability determination, and Plaintiff’s case should
be affirmed. ECF No. 11 at 6-8.
As an initial matter, the Court notes that the burden of proving that alcoholism or drug
addiction was not a contributing factor material to the disability determination falls on Plaintiff. See
Fastner v. Barnhart, 324 F.3d 981, 984 (8th Cir. 2003). In this case, Plaintiff admitted at the hearing
in this matter that he continued to abuse drugs. (Tr. 65-66). Plaintiff admitted during his
consultative examination on December 5, 2011 that he “smoked it [marijuana] on a daily basis” and
reported smoking it about “1-2 times per day.” (Tr. 282). Two years later, on May 22, 2013,
Plaintiff again admitted to smoking from 1 to 1 ½ “joints a day, depending on the quality.” (Tr.
379). As a part of this evaluation, the examining psychologist noted Plaintiff’s drug use likely
impacted his daily functioning. (Tr. 376).
Thus, clearly the ALJ’s decision that drug use impacted Plaintiff’s ability to work was
supported by the record. In his appeal brief, Plaintiff supplies no basis for his argument that his drug

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Furthermore, Plaintiff was the one who raised the issue of drug use at the hearing. (Tr. 65-66).
He testified as follows: “Now for you guys to understand that I’ve never done meth, I’m going to sit here.
And I’m going to say, I’ve done marijuana. I’ve done mushrooms. I have put a tiny line of cocaine on
my tongue. I have–I’ve done some drugs.” Id. When the ALJ asked Plaintiff if he still does drugs,
Plaintiff responded that the “only thing in the past two years or so that I’ve participated in is the
marijuana” because he does not “consider that to even be a drug.” (Tr. 66).

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use was not a contributing factor. ECF No. 9 at 14-17. Thus, Plaintiff has not met his burden of
proving it was not a contributing factor, and the Court finds no basis for reversal on this issue.4
C.

Record Development

Plaintiff claims the ALJ erred in developing the record in his case. ECF No. 9 at 17-18.
Upon review of Plaintiff’s claim and Defendant’s response, the Court finds the record in this case
was properly developed and no remand is necessary. Notably, the ALJ only has the obligation “to
develop a reasonably complete record.” Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994).
Here, the transcript in this case is nearly 400 pages long. This transcript includes Plaintiff’s
treatment records and consultative examination reports. (Tr. 251-383). Based upon this information,
the Court finds this is a “reasonably complete record.”
As a final point, a social security case should only be remanded for failure to develop the
record where there has been a showing of prejudice or unfair treatment. See Onstad v. Shalala, 999
F.2d 1232, 1234 (8th Cir. 1993) (holding “absent unfairness or prejudice, we will not remand”).
Here, apart from a bare claim on this matter, Plaintiff has made no showing of prejudice or unfair
treatment. ECF No. 9 at 17-18. Indeed, in this case, there is undisputed evidence of Plaintiff’s drug
use, Plaintiff’s lack of motivation to work, and the likelihood Plaintiff’s drug use would “likely”
impact his daily functioning.
After reviewing this evidence and all of the other evidence in the record, the ALJ reached the
conclusion that Plaintiff’s drug use was a contributing factor material to the disability determination.
Plaintiff has not demonstrated this drug use was not a contributing factor. Thus, the Court finds

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It is worth noting also, based upon the Court’s review of the transcript in this matter, Plaintiff
appears to have no desire to work, especially jobs that are beneath him. (Tr. 57-58). Plaintiff testified at
the administrative hearing in this matter that he would not have the pride to do a job at McDonald’s
because it is a “demeaning job.” Id.

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Plaintiff has not made the showing required for a remand in this action to further develop the record,
and there is no basis for reversal on this issue.
4.

Conclusion:
Based on the foregoing, the undersigned finds that 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 16th day of February 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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