Freeman v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on January 8, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
ALFORD A. FREEMAN

PLAINTIFF

v.

Civil No. 11-3064

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Alford Freeman, 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 a period of disability, disability insurance benefits (“DIB”), and supplemental security income
(“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:
Plaintiff filed his applications for DIB and SSI on August 23, 2007, alleging an onset date of

January 1, 2005, due to calcium oxalate (kidney stones, back and neck pain, borderline intellectual
functioning, substance abuse, anxiety disorder, mood disorder, and personality disorder. Tr. 106-117,
133, 151-152, 179, 189, 213-234. His applications were initially denied and that denial was upheld upon
reconsideration. Tr. 73-79, 82-85. An administrative hearing was held on June 4, 2008, and resulted in
an unfavorable decision on September 24, 2008. Tr. 1-37, 63-72, 637-675, 769-805. Ultimately, the case
was appealed to this Court, and remanded back to the agency on April 30, 2010. Tr. 753, 754-763, 764767. A second administrative hearing was held on December 8, 2010. Tr. 676-747. Plaintiff was
present and represented by counsel.

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At this time, Plaintiff was 28 years of age and possessed a tenth grade education. Tr. 6-7, 680681, 688. He had no past relevant work experience. Tr. 7, 71, 134, 141-148, 166-172, 194, 214-217,
628.
On May 16, 2011, the Administrative Law Judge (“ALJ”) found Plaintiff’s borderline
intellectual functioning; organic brain disorder, depression, anxiety, kidney stones, and disorder of the
back were severe impairments, but concluded they did not meet or medically equal one of the listed
impairments in Appendix 1, Subpart P, Regulation No. 4. Tr. 619-622. After partially discrediting
Plaintiff’s subjective complaints, he determined Plaintiff could perform sedentary work where the
interpersonal contact is incidental to the work performed, the complexity of the tasks is learned and
performed by rote with few variables and little judgment, and the supervision required is simple, direct,
and concrete. Tr. 622-628. With the assistance of a vocational expert, the ALJ concluded Plaintiff could
perform work as a machine tenderer, assembler, and inspector. Tr. 629-630.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied.
Subsequently, Plaintiff filed this action. ECF No. 1. Both parties have filed appeal briefs, and the case
is now ready for decision. ECF No. 8, 10.
The court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ appeal briefs and the ALJ’s decision and are repeated here only to the extent
necessary.
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

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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.
A.

The Evaluation Process:

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

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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 his 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’s appeal boils down to two main arguments. He contends that the ALJ erred in

concluding that he was not disabled because: 1) the RFC assessment is flawed and 2) the ALJ erred in
his step-three burden determination that Plaintiff’s impairments did not meet or equal a listed
impairment. More particularly, Plaintiff maintains that the RFC assessment is flawed because limiting
him to interpersonal contact that is incidental to the work performed does not address the frequency of
his contact with others, and because the assessment does not address the chronic pain he suffers due to
kidney stones. He also asserts that he meets the requirements for listing 12.02 dealing with organic
mental disorders. For the reasons enumerated below, we disagree.
First, we address Plaintiff’s argument that the term incidental contact does not address the
frequency of his contact with others. By definition, the term incidental means “being likely to ensue as
a

chance

or

minor

See

consequence.”

Miriam-Webster

Dictionary,

http://www.merriam-webster.com/dictionary/incidental (last assessed January 4, 2013).

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Legal

dictionaries define the term in a similar fashion: “depending upon or appertaining to something else as
primary; something necessary, appertaining to, or depending upon another which is termed principal.”
See BLACK’S LAW DICTIONARY 762 (6th ed. 1990). Given the evidence indicating that Plaintiff keeps
to himself, has only one or two close friends, does not socialize with his family, experiences anxiety in
crowds, and has either been fired from or quit previous jobs due to interpersonal conflict, we believe that
limiting him to only incidental or infrequent contact with co-workers and/or supervisors adequately
addresses his limitations in this area.
Plaintiff also seems to contend that he is incapable of performing the position of machine
tenderer, assembler, and inspector, as identified by the vocational expert, because each requires
significant interpersonal contact to ask questions or address inevitable problems that might arise with
the machines and assembly lines. While we do believe that some interpersonal contact would be
required, as is the case with any job, we find no merit in Plaintiff’s argument. A review of the Dictionary
of Occupational Titles description of each of these positions reveals that they require commonsense
understanding to carry out simple and/or detailed but uninvolved written or oral instructions and involve
problems with few concrete variables in or from standardized situations.

See DICTIONARY OF

OCCUPATIONAL TITLES §§ 673.685-042, 713.687-026, 726.684.050, www.westlaw.com (Last accessed
January 7, 2013). Further, the descriptions indicate that the positions do not require a significant amount
of personal interaction or talking. Id.
Plaintiff further asserts that the RFC assessment is flawed because it does not include chronic
pain related limitations resulting from his kidney stones. He argues that the ALJ relied heavily upon the
consultative evaluation of Dr. John Nelson, who he asserts failed to consider Plaintiff’s kidney stones.
However, a review of Dr. Nelson’s evaluation suggests otherwise. On January 29, 2011, Dr. Nelson
conducted a physical evaluation of Plaintiff. Tr. 924-927. Plaintiff reported a history of lower back pain,
neck pain, head trauma, and excessive kidney stones. And, Dr. Nelson noted that Plaintiff had passed

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27 stones since he began experiencing problems with kidney stones in the seventh grade, with the last
episode occurring in 2007. Tr. 924. After examining Plaintiff and reviewing his medical records, Dr.
Nelson diagnosed him with tobacco abuse, chronic cervical and lower back pain, a history of
nephrolithiasis, bipolar disorder, and a history of depression.
The remaining evidence also supports Dr. Nelson’s statement that Plaintiff had last experienced
a flare up of kidney stones in February 2007, which was approximately four years prior to his
examination. Tr. 258-266, 589-595. See Moad v. Massanari, 260 F.3d 887, 892 (8th Cir. 2001) (in
assessing credibility, the court noted that plaintiff had not sought treatment from any physician in the
seven months prior to administrative hearing). And, we note that he was able to work in 2005, 2006, and
2007, albeit sporadically, while he claimed to be suffering from kidney stones. Gowell v. Apfel, 242 F.3d
793, 798 (8th Cir. 2001) (claimant worked with her impairments for years); See 20 C.F.R. § 404.1571
(“Even if the work you have done was not substantial gainful activity, it may show that you are able to
do more work than you actually did.”). He was also able to perform work that rose to the level of
substantial gainful activity in 2009 and 2010, with no reported flare-ups of his kidney stones. Tr. 628,
834-848. Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir.2005) (working after the onset of an impairment
is some evidence of an ability to work). Therefore, we find substantial evidence to support the ALJ’s
determination that Plaintiff’s kidney stones were episodic and did not limit his ability to perform basic
work activities. Tr. 628.
We also disagree with Plaintiff’s contention that a treating physician should have conducted his
general examination. For the reasons outlined in the previous paragraph, we fail to see how an
assessment from a treating physician would have differed from Dr. Nelson’s. It seems clear that
Plaintiff’s nephrolithiasis was chronic, but episodic in nature. It had been four years since his last
treatment for kidney stones. And, we can discern no evidence to indicate that it limited his ability to
perform sedentary work.

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Plaintiff’s final argument centers around the requirements of listing 12.02 for organic mental
disorders. “For a claimant to show that his impairment matches a listing, it must meet all of the specified
medical criteria.” Brown ex rel. Williams v. Barnhart, 388 F.3d 1150, 1152 (8th Cir. 2004) (internal
quotations and citation omitted). The regulations state that a diagnosis alone is not enough to satisfy a
listed impairment. See 20 C.F.R. §§ 404.1525(d), 416.925(d).
The question is whether the ALJ “consider[ed] evidence of a listed impairment and concluded
that there was no showing on th[e] record that the claimant's impairments . . . m[et] or are equivalent to
any of the listed impairments.” Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006) (internal
quotations omitted). “The fact that the ALJ d[oes] not elaborate on this conclusion does not require
reversal [where] the record supports h[is] overall conclusion.” Id.
Listing 12.02 requires that Plaintiff meet the requirements of subparagraphs A and B or
the requirements of subparagraph C. The pertinent portions of subparagraph A requires a demonstration
of a loss of specific cognitive abilities or affective changes and medically documented persistence of at
least one of the following: disturbance in mood or emotional lability (e.g. explosive temper outbursts,
sudden crying, etc.) and an impairment of impulse control. Subparagraph B, requires at least two of the
following: marked restrictions in activities of daily living, marked difficulties in maintaining social
functioning, marked difficulties in maintaining concentration persistence or pace, or repeated episodes
of decompensation, each of extended duration. See 20 C.F.R. pt. 404, subpt. P, app. 1, listing 12.02B.
Plaintiff contends that he meets the requirements of subsections A and B. We disagree. While
we would agree that he meets the requirements of subsection A, his impairment does not fulfill the
requirements of subsection B. The ALJ correctly concluded that Plaintiff had mild restrictions of
activities of daily living. In January 2011, Plaintiff advised Dr. Hester that he could drive unfamiliar
routes and perform activities of daily living autonomously. Tr. 920. The record also reveals that
Plaintiff has reported paying his own bills, shopping for he and his son, caring for his son, caring for his

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own personal hygiene, doing the laundry twice per week, mowing the yard once a week, going outside
once or twice per day, walking, shopping for clothes and food in stores, playing games with his son, and
taking his son to the park. Tr. 153-157, 323-328. He was also able to maintain employment for several
months at a time, quitting or losing his job primarily due to conflict with his co-workers/supervisors.
Plaintiff was also found to have only moderate difficulties in social functioning. Although he
and his family reported that he was withdrawn and often stayed in his room to avoid conflict, Plaintiff
reported having one or two close friends.1 And, he indicated that he visited with his friends weekly, and
often took his son along to play with his friends’ children. Tr. 720, 869-870. Therefore, while we do
note his history of reported interpersonal conflict and strife with family and employers, it appears as
though Plaintiff is capable of interacting socially, when he wants to do so.
The evidence also reveals that Plaintiff had only moderate difficulties with regard to
concentration, persistence, and pace. In 2007, Plaintiff presented for a psychological evaluation with
Dr. Nancy Bunting, high on marijuana. Dr. Bunting concluded that Plaintiff would have difficulty
learning tasks at work if he were high. Likewise, in 2011, Dr. Hester indicated that Plaintiff “might”
have difficulty coping with the mental demands of basic work tasks, without treatment. Tr. 920.
However, Dr. Hester also indicated that Plaintiff could attend and sustain concentration on basic tasks
and sustain persistence in completing tasks. And, Plaintiff’s work record also lends some credence to
the idea that his ability to concentrate and persist is only moderately limited, as he has been capable of
working for months at a time, quitting or being fired due to his own anger management issues.
As for periods of decompensation, the ALJ correctly concluded that Plaintiff had experienced
two such episodes. At age 23, Plaintiff was hospitalized at the state hospital for seven days, and in 2006,
he attempted suicide by overdosing on Xanax. Tr. 915, 919.

1

We do note his report to Dr. Bunting in 2007 that he had no friends and was not involved in any social groups.
Tr. 323, 325.

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Therefore, after reviewing all of the evidence, we can not say that Plaintiff meets the
requirements of listing 12.02. And, we find substantial evidence supporting the ALJ’s conclusion
otherwise.
The evidence does make clear that Plaintiff was easily angered or upset when things did not go
his way, and that he had some significant anger management issues. However, his failure to receive
consistent mental health treatment over the course of the relevant time period is a major impediment to
his claim for disability. Tr. 204-207, 298-316. See Kirby v. Astrue, 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). He even testified that he had neither been consistent with his treatment nor 100 percent
honest with the therapists regarding his problems because he enjoyed his freedom and did not want to
be institutionalized. Tr. 699. However, we are expected to believe that he would be both honest and
consistent with treatment if he were granted benefits.2 Tr. 701-702.
And, while we are sympathetic to his parents’ testimony regarding the cost of his medical
treatment and medications and the burden it has placed on their budget, we also note that Plaintiff has
continued to smoke cigarettes and has tested positive for both marijuana and amphetamine use during
the relevant time period. Tr. 278-283, 305-308, 310, 311-313, 315, 589-595. Riggins v. Apfel, 177 F.3d
689, 693 (8th Cir. 1999). Money that could have been spent on treatment and/or medication. Further,
we can discern no indication that he has been refused medical treatment due to his inability to pay or has
consistently availed himself of the medical services offered to indigent and/or low income individuals.
Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992). Accordingly, we can not excuse his failure
to obtain consistent treatment.

2

Specifically, Plaintiff stated, “”If I had somebody I could trust and had a way to pay my bills so I
could get the help I needed, yes, I would definitely go and try to get my life and my head straight.” Tr. 702.

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IV.

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.
DATED this 8th day of January 2013.

/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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