Peede v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 3, 2012. (rw)
N THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MIKEL R. PEEDE
Civil No. 3:11-cv-03026
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Mikel R. Peede (“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 applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and
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. 6.1 Pursuant to this authority, the Court
issues this memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed his disability applications on September 24, 2007. (Tr. 10, 118-
127). In his applications, Plaintiff alleged he was disabled due to problems with his knees and back.
(Tr. 140). At the administrative hearing in this matter, Plaintiff also alleged being disabled due to
depression. (Tr. 31, 35). Plaintiff alleged an onset date of August 1, 1995. (Tr. 10). These
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.”
applications were denied initially and again on reconsideration. (Tr. 70-73).
Thereafter, Plaintiff requested an administrative hearing on his applications, and this hearing
request was granted. (Tr. 86-87, 26-67). An administrative hearing was held on June 23, 2009 in
Harrison, Arkansas. (Tr. 26-67). At the administrative hearing, Plaintiff was present and was
represented by Frederick Spencer. Id. Only Plaintiff testified at this hearing. Id. On the date of this
hearing, Plaintiff was forty-eight (48) years old, which is defined as a “younger person” under 20
C.F.R. § 404.1563(c) (DIB) and 20 C.F.R. § 416.963(c) (SSI), and had completed the eighth grade
in school. (Tr. 30).
On March 17, 2010, subsequent to this hearing, the ALJ entered an unfavorable decision on
Plaintiff’s applications. (Tr. 10-21). In this decision, the ALJ determined Plaintiff met the insured
status requirements of the Act through June 30, 1997. (Tr. 12, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since August 1, 1995, his alleged
onset date. (Tr. 12-13, Finding 3). The ALJ determined Plaintiff had the following severe
impairments: osteoarthritis of the lumbar spine; osteoarthritis of the knees; depression; morbid
obesity; and alcohol abuse. (Tr. 13, Finding 3). The ALJ also determined, however, that Plaintiff did
not have an impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 13-14, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 14-19, Finding 5). First, the ALJ found Plaintiff’s subjective allegations were not supported by
the overall evidence and were not fully credible. Id. Second, the ALJ found Plaintiff retained the
RFC to perform the following:
After careful consideration of the entire record, I find that the claimant has the residual
functional capacity to perform less than the full range of unskilled sedentary work as
defined in 20 CFR 404.1567(a) and 416.967(a). The claimant should not climb
ladders, ropes and scaffolds. He can only occasionally climb ramps stairs, balance,
crouch, crawl, stoop and kneel.
(Tr. 14-19, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff had no PRW.
(Tr. 19, Finding 6). The ALJ then evaluated whether Plaintiff could perform other work existing in
significant numbers in the national economy. (Tr. 20-21, Finding 10). The ALJ based her findings
upon the responses of Vocational Expert (“VE”) Sarah Moore to post-hearing interrogatories. (Tr.
20). Specifically, the VE stated that given all the limitations the ALJ found credible, a hypothetical
person would be able to work as a machine tender (unskilled, sedentary) with 18,100 such jobs in the
national economy and 247 such jobs in the local economy and assembler (unskilled, sedentary) with
31,000 such jobs in the national economy and 400 such jobs in the local economy. Id. Based upon
this finding, the ALJ determined Plaintiff could perform other work and had not been under a
disability, as defined in the Act, from August 1, 1995 through the date of her decision or through
March 17, 2010. (Tr. 21, Finding 11).
On March 26, 2010, Plaintiff requested that the Appeals Council review the ALJ’s
unfavorable decision. (Tr. 116-117). See 20 C.F.R. § 404.968. On March 4, 2011, the Appeals
Council declined to review this disability determination. (Tr. 1-3). On March 31, 2011, Plaintiff filed
the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on July 8,
2011. ECF No. 6. Both Parties have filed appeal briefs. ECF Nos. 10-11. This case is now ready
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 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, 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).
In his appeal brief, Plaintiff raises the following two2 arguments: (1) the ALJ failed to fully
and fairly develop the record in his case and (2) the ALJ failed to properly identify and consider all
of his severe impairments. ECF No. 10 at 14-26.3 In response to these arguments, Defendant claims
substantial evidence supports the ALJ’s disability determination, the ALJ satisfied her duty to fully
and fairly develop the record, and substantial evidence supports the ALJ’s severe impairment
determination. ECF No. 11 at 5-20. This Court will address both Plaintiff’s arguments for reversal.
Plaintiff also raises a final argument: “If the ALJ’s decision denying benefits was not supported by
substantial evidence that case must be reversed or remanded.” ECF No. 10 at 23-24. Because this Court addresses
this issue when considering the first and second arguments Plaintiff raised, this issue will not be addressed
Plaintiff’s appeal brief was twenty-seven pages in length. ECF No. 10. Pursuant to the scheduling order
entered in this case, Plaintiff’s appeal brief was limited to twenty pages in length. Even though Plaintiff’s appeal
brief exceeded the page limitation for briefing, this Court declines to strike Plaintiff’s appeal brief from the record in
ALJ’s Development of the Record
Plaintiff claims the ALJ failed to develop the record in this case. ECF No. 10 at 14-19.
Plaintiff makes several arguments in support of his claim: (1) the ALJ erred by not using a Medical
Expert (“ME”) to evaluate whether he was disabled; (2) the ALJ erred by not ordering the additional
testing that was recommended by his physician, Dr. K. Simon Abraham; and (3) the ALJ erred by not
ordering an additional consultative examination. Id. Upon review, none of these arguments
demonstrate a remand is required.
First, Plaintiff claims a ME’s opinion was required for the record to be fully developed. ECF
No. 10 at 15. At the administrative hearing in this matter, the ALJ suggested that she may need to
use a ME to evaluate this case:
ALJ: And then I’ll take a look at them [medical records from Ozarks Counseling
Services]. I’ll see if I need to get an ME to look at all of this for me and then I may
have to send some interrogatories to Ms. Moore. I’ll be able to make a decision. I’m
not really clear.
(Tr. 61) (emphasis added).
However, as is apparent from the ALJ’s opinion in this case, she did not contact a ME to assist
her in evaluating this case. (Tr. 10-21). Despite this fact, there is no requirement a ME be used to
evaluate a case or to determine whether a claimant is disabled. Indeed, for an ALJ to fully develop
the record, that ALJ need only ensure the record contains sufficient evidence for him or her to make
an “informed decision.” See Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001).
In this case, the ALJ collected Plaintiff’s medical records dating all the way back to 1999. (Tr.
219-321). After reviewing the medical evidence, the SSA determined further record development was
necessary and ordered physical and mental consultative examinations. (Tr. 219-228, 291-305). The
record appears to be complete, and there has been no demonstration a ME was required for the ALJ
to make an “informed decision.”
Further, in this case, Plaintiff has not demonstrated unfairness or prejudice resulting from the
ALJ’s failure to further develop the record and contact a ME. ECF No. 10 at 14-19. Such a showing
is required in order for a case to be reversed and remanded. See Onstad v. Shalala, 999 F.2d 1232,
1234 (8th Cir. 1993) (holding that “absent unfairness or prejudice, we will not remand”).
Accordingly, even assuming the ALJ erred by failing to contact a ME, this case should still not be
reversed and remanded. See id.
Second, Plaintiff claims his examining physician, Dr. K. Simon Abraham, M.D.,
recommended additional testing be performed, and the ALJ erred by not ordering that testing. ECF
No. 10 at 16. Dr. K. Simon Abraham examined Plaintiff on October 29, 2007 as a part of a
consultative examination. (Tr. 219-228). During that examination, Dr. Abraham diagnosed Plaintiff
with several impairments, including “nicotine addiction.” (Tr. 226). Dr. Abraham also noted the
following in his report: “I would suggest he [Plaintiff] have an ECG & PF & possibly a stress test.”
Id. Plaintiff claims the ALJ erred by failing to order these tests.
Despite Plaintiff’s claim, a review of the record in this case demonstrates the SSA did order
a Pulmonary Functioning (PF) test as suggested by Dr. Abraham. This test was conducted on
November 26, 2007 by the Cardiopulmonary Department of Baxter Regional Medical Center. (Tr.
239-250). During this test, Plaintiff reported he smoked cigarettes. Id. Plaintiff’s pulmonary
functioning was then tested. Based upon the pulmonary testing, Plaintiff was found to have a
“[p]ossible EARLY OBSTRUCTIVE PULMONARY IMPAIRMENT.” (Tr. 240). As a part of this
examination, Plaintiff was then treated with bronchodilator therapy and his pulmonary functioning
was tested again. Id. Plaintiff improved after this brief treatment. Id. Plaintiff was directed to
continue bronchodilator therapy: “[T]his patient would most likely benefit from continued
bronchodilator therapy.” Id.
Despite this improvement and the suggestion Plaintiff further seek treatment, there is no
indication in the record Plaintiff continued to seek respiratory treatment. Such a failure to seek
treatment indicates Plaintiff’s condition is not disabling. See Shannon v. Chater, 54 F.3d 484, 486
(8th Cir. 1995) (a claimant’s “failure to seek medical treatment may be inconsistent with a finding
of disability”).4 There is also no indication Plaintiff even attempted to quit smoking in order to
improve his respiratory functioning. Based upon this PF report, it appears the record was sufficiently
developed for the ALJ to make an “informed decision.” Thus, the ALJ was not required to order a
stress test or an ECG. See Haley, 258 F.3d at 749. Also, as noted above, even if the ALJ erred by
failing to order a stress test or ECG, Plaintiff has not demonstrated this failure resulted in bias or
prejudice. Thus, no remand is required. See Onstad, 999 F.2d at 1234.
Third, Plaintiff claims the ALJ did not properly develop the record because the ALJ did not
order an additional consultative examination. The record reflects that the ALJ ordered two
consultative examinations. (Tr. 219-228, 291-305). As noted above, the physical examination was
performed by Dr. K. Simon Abraham (Tr. 219-228) while the mental examination was performed by
Stephen R. Harris, Ph.D. (Tr. 291-305). Plaintiff has not demonstrated these examinations are
inadequate for the ALJ to make an “informed decision.” Further, there has been no demonstration
that this alleged failure to request an additional consultative examination has resulted in bias or
prejudice. Accordingly, because Plaintiff has not demonstrated bias or prejudice, no remand is
required. See Onstad, 999 F.2d at 1234.
Plaintiff seeks to excuse his failure to seek treatment by claiming he was unable to afford such treatment.
Plaintiff’s father, however, had sufficient funds to provide him the money to support a 2-pack-a-day of cigarettes
habit and nightly six-pack-of-beer habit. (Tr. 57-58). Thus, he presumably had sufficient funding to provide Plaintiff
with some medical treatment.
Severe Impairment Determination
Plaintiff claims the ALJ improperly evaluated his severe impairments. ECF No. 10 at 19-27.
Specifically, Plaintiff claims the ALJ improperly evaluated his mental impairments, including his
depression, “tactile hallucinations,” bipolar disorder II (psychotic/severe), and pain disorder. Id. at
23. As an initial matter, the ALJ did find Plaintiff’s depression was a severe impairment. (Tr. 13,
Finding 3). Because the ALJ found his depression was a severe impairment, Plaintiff’s claim
regarding his depression is without merit.
As for Plaintiff’s other allegedly “severe impairments” (tactile hallucinations, bipolar disorder,
and pain disorder), he did not specifically allege any of these impairments in his applications or at the
administrative hearing in this matter. In his applications, he alleged being disabled due to problems
with his knees and back. (Tr. 140). At the hearing in this matter, he included depression in that list
of disabling impairments. (Tr. 31). During the administrative hearing, he also described his
depression, indicating he had concentration problems, suicidal thoughts, and auditory hallucinations.
(Tr. 44). Because he indicated all of these symptoms were a part of his depression and because he
did not specifically allege any of these impairments were disabling in his application or at the hearing
in this matter, the ALJ was under no duty to separately investigate these allegedly disabling
impairments. See Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996) (holding the ALJ is “under no
‘obligation to investigate a claim not presented at the time of the application for benefits and not
offered at the hearing as a basis for disability.’”) (citation omitted).
Further, even if he had properly alleged these impairments were disabling, Plaintiff has not
presented any evidence demonstrating these alleged impairments are severe.
hallucinations,” Plaintiff has presented no evidence he suffers from this impairment or that it is
severe.5 For bipolar disorder, the only evidence Plaintiff has presented indicating he was even
diagnosed with this impairment is from a Licensed Master Social Worker (“LMSW”). (Tr. 312).
Such a person is not an “acceptable source” for determining disability. See 20 C.F.R. § 404.1513.
Thus, this counseling record does not establish Plaintiff’s alleged bipolar disorder was a severe
Finally, for “pain disorder,” Plaintiff has provided the results from the mental evaluation
performed by Dr. Stephen R. Harris, Ph.D. (Tr. 296). Dr. Harris found Plaintiff would have
limitations in his ability to cope with basic work-like tasks and limitations in his ability to perform
work-like tasks in an acceptable time frame due to his “perception of pain.” Id. While this Court
acknowledges the concept of “pain” may have both a physical and mental component, the ALJ fully
considered Plaintiff’s allegedly disabling pain when considering his physical impairments. Indeed,
the ALJ determined Plaintiff had the severe impairments of osteoarthritis of the lumbar spine and
osteoarthritis of the knees and fully evaluated those impairments in determining Plaintiff’s RFC. (Tr.
13). Thus, this Court finds Plaintiff’s claim on this issue is also meritless.
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 3rd day of May, 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
It appears that at the hearing in this matter, Plaintiff alleged auditory, not tactile, hallucinations. (Tr. 44).
During counseling, Plaintiff indicated he suffered from tactile hallucinations. (Tr. 307). Plaintiff, however, never
addressed this issue at the administrative hearing in this matter. (Tr. 26-67).
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