Pettice v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on October 8, 2015. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
RICHARD E. PETTICE
V.

PLAINTIFF
CIVIL NO. 3:14-cv-03076-MEF

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Richard E. Pettice, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claim for a period of disability, disability insurance benefits (DIB), and
supplemental security income (SSI) under the provisions of Titles II and XVI of the Social Security
Act (Act). 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 April 19, 2012, alleging disability since
October 1, 20101, due to breathing problems, leg problems, walking problems, hernia, limbs going
numb, severe depression, and severe chest pains. (T. 150-156, 157-165, 184) His claims were denied
initially on August 17, 2012, and upon reconsideration on February 5, 2013. (T. 89-91, 92-95, 100101, 102-104) An administrative hearing was requested on February 11, 2013. (T. 99) The hearing
was held on March 20, 2013, in Harrison, Arkansas, before the Hon. Harold D. Davis,

1

The alleged date of onset was amended to October 3, 2010 during the administrative
hearing. (T. 52)
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Administrative Law Judge (“ALJ”). (T. 44) Plaintiff appeared and was represented by counsel. (T.
44, 46) Also present at the hearing was Jim Spraggins, a vocational expert (“VE”). (T. 46)
By a written Decision dated May 10, 2013, the ALJ found Plaintiff had the following severe
impairments: hypertension; non-insulin dependent diabetes mellitus; chronic obstructive pulmonary
disease; obesity; and, depression. (T. 25-26) The ALJ next determined that Plaintiff does not have
an impairment or combination of impairments that meets or medically equals the severity of any
impairment in the Listing of Impairments. (T. 26-27) After careful consideration of the entire record,
and partially discrediting Plaintiff’s subjective complaints, the ALJ found Plaintiff had the residual
functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and
416.967(a), except Plaintiff must avoid concentrated exposure to dust, fumes, and smoke, avoid
exposure to heights or dangerous machinery, and he would need to work at jobs which involve
simple tasks and simple instructions. (T. 27-31)
With the help of the VE, the ALJ determined Plaintiff could not perform his past relevant
work (“PRW”), but he could perform the requirements of the representative occupations of small
production (DOT 689.585-018), with 4,000 such jobs in Arkansas and 500,000 jobs in the national
economy; small product assembler (DOT 706.684-030), with 4,000 such jobs in Arkansas and
203,000 jobs in the national economy; and, small product inspector (DOT 669.687-014), with 1,100
such jobs in Arkansas and 68,000 jobs in the national economy. (T. 31-32) The ALJ then found
Plaintiff had not been under a disability as defined by the Act during the relevant time period. (T.
32)
On June 14, 2013, Plaintiff requested a review of the hearing decision by the Appeals
Council. (T. 16) On August 30, 2013, Plaintiff’s counsel supplied the Appeals Council with
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additional medical evidence consisting of a Diabetes Mellitus Assessment Questionnaire and
Physical Residual Functional Capacity Questionnaire, both by James Hawk, M.D., dated August 27,
20132. (T. 6-14) The Appeals Council, acknowledging consideration of the additional evidence,
denied Plaintiff’s request for review on June 30, 2014. (T. 1-4) Plaintiff filed this action on August
6, 2014. (Doc. 1) This case is before the undersigned pursuant to the consent of the parties. (Doc.
6) Both parties have filed appeal briefs (Docs. 12, 13), and the case is ready for decision.
II. Applicable Law
This Court’s role is to determine whether substantial evidence supports the Commissioner’s
findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial evidence is less than
a preponderance but it is enough that a reasonable mind would find it adequate to support the
Commissioner’s decision. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). The Court must
affirm the ALJ’s decision if the record contains substantial evidence to support it. Blackburn v.
Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). In other
words, if after reviewing the record it is possible to draw two inconsistent positions from the

2

Dr. Hawk is a one-time consulting physician who met with Plaintiff for 15 minutes and
completed a fill-in-the-blank assessment form. A conclusory checkbox form has little evidentiary
value. See Anderson v. Astrue, 696 F.3d 790 (8th Cir. 2012); Wildman v. Astrue, 596 F.3d 959,
964 (8th Cir. 2010); and, Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001). It is also
proper to discount Plaintiff’s encounter with a medical professional that is linked primarily to
obtain benefits, rather than to obtain medical treatment. See Shannon v. Chater, 54 F.3d 484,
486 (8th Cir. 1995).
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evidence and one of those positions represents the findings of the ALJ, the Court must affirm the
ALJ’s decision. Id.
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), 1382c(a)(3)(D). A plaintiff must show that his disability, not
simply his impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require her 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 or her 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 or her age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Only if he reaches the final stage 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(a)(4)(v), 416.920(a)(4)(v).

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III. Discussion
The Court must determine whether substantial evidence, taking the record as a whole,
supports the Commissioner’s decision that Plaintiff was not disabled, as defined in the Social
Security Act, from the amended date of onset on October 3, 2010 through the date of the ALJ’s
Decision on May 10, 2013. Plaintiff raises three points on appeal, which can be summarized as
follows: (1) the ALJ erred in his RFC determination; (2) the ALJ erred in finding that Plaintiff’s back
pain was not severe; and, (3) a general argument that the ALJ’s decision denying benefits is not
supported by substantial evidence. (Doc. 12, pp. 8-13) Each issue is addressed in turn.
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs and the ALJ’s opinion, and they are repeated here only to the extent
necessary.
A. No Error in RFC Determination
The ALJ determined Plaintiff has the RFC to perform sedentary work, except Plaintiff must
avoid concentrated exposure to dust, fumes, and smoke, avoid exposure to heights or dangerous
machinery, and he would need to work at jobs which involve only simple tasks and simple
instructions. (T. 27-31) The Court finds substantial evidence supports the ALJ’s RFC determination.
It is well settled that the ALJ “bears the primary responsibility for assessing a claimant’s
residual functional capacity based on all relevant evidence.” Roberts v. Apfel, 222 F.3d 466, 469 (8th
Cir. 2000). RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
416.945(a)(1). A disability claimant has the burden of establishing his or her RFC. See Masterson
v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). “The ALJ determines a claimant’s RFC based on all
relevant evidence in the record, including medical records, observations of treating physicians and
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others, and the claimant’s own descriptions of his or her limitations.” Eichelberger v. Barnhart, 390
F.3d 584, 591 (8th Cir. 2004); Guilliam v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). Limitations
resulting from symptoms such as pain are also factored into the assessment. 20 C.F.R. §
416.945(a)(3). The Eighth Circuit has held that 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).
1. Medical Opinions
Plaintiff argues the ALJ’s RFC determination is unsupported by substantial evidence because
it is inconsistent with the medical opinions of a treating physician, Joseph Klag, M.D., and two
consultative examiners, Keith Cunningham, M.D. and Samuel Hester, Ph.D. (Doc. 12, pp. 8-11)
As the ALJ noted, there is a dearth of medical evidence to support Plaintiff’s allegations of
disabling impairments as of his amended onset date of October 3, 2010. (T. 28) In fact, there are no
treatment records in 2010, and none until Plaintiff’s chiropractic records beginning in October 2011.
(T. 383-426) Following that period of chiropractic care, there are no treatment records until
Plaintiff’s visit to Phoenix Baptist Hospital on May 19, 2012. (T. 273-290) Thereafter, Plaintiff only
sought treatment twice: on July 23, 2012 when he went to Phoenix Baptist Hospital for a laceration
to his forehead (T. 338-339), and on September 26, 2012 when he was seen at Banner Thunderbird
Medical Clinic for shortness of breath and chest pains (T. 324). In general, the failure to obtain
treatment indicates that a person’s condition may not be disabling or may not be as serious as
alleged. See Shannon v. Chater, 54 F.3d 484, 487 (8th Cir.1995) (holding “[g]iven his alleged pain,
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Shannon’s failure to seek medical treatment may be inconsistent with a finding of disability”);
Novotny v. Chater, 72 F.3d 669, 670 (8th Cir. 1995) (Plaintiff had not sought any regular or
sustained medical treatment).
Plaintiff says his failure to seek medical treatment, and to take prescribed medications, is due
to financial hardship. (T. 58, 63, 65) The ALJ noted, however, that no evidence of record exists to
show Plaintiff has been denied treatment due to a lack of funds or that he sought free medical care
or prescription assistance. (T. 28) This is consistent with Eighth Circuit precedent. See Murphy v.
Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992) (rejecting claim of financial hardship where there was
no evidence that claimant attempted to obtain low cost medical treatment or that claimant had been
denied care because of her poverty); Hutsell v. Sullivan, 892 F.2d 747, 750 n. 2 (8th Cir. 1989)
(noting that “lack of means to pay for medical services does not ipso facto preclude the Secretary
from considering the failure to seek medical attention in credibility determinations”) (internal
quotations omitted); Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005) (if the record does not
contain evidence showing that Plaintiff was denied treatment for financial reasons, the court should
reject Plaintiff’s claim of inability to afford treatment). Moreover, the record shows Plaintiff has
been able to afford to buy cigarettes, as he continues to smoke a pack of cigarettes per day. (T. 63).
See Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (despite the claim that he could not afford
medication, the fact that claimant chose to smoke rather than pay for medications was inconsistent
with disabling pain).
Plaintiff acknowledged he has been advised to quit smoking. (T. 56) Dr. Klag, upon whom
Plaintiff now relies, bluntly reported, “... clearly this gentleman needs ... [t]o take better care of
himself and pay attention to risk factor modification ... [h]e will need help to stop smoking and
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drinking3, but I did discuss with him in great detail the importance of such lifestyle modification ...
[h]e will need weight loss as well.” (T. 280) Despite this wise guidance, Plaintiff continues to smoke
a pack of cigarettes per day, and while he stated “I’m trying to quit ... I can’t seem to do it,” he also
admitted he has never used patches or other smoking cessation aids in an attempt to quit. (T. 57, 63)
Plaintiff’s continued smoking, despite medical recommendation to quit, was noted by the ALJ as
being “inconsistent with allegations of severe and disabling symptoms.” (T. 28) See Kisling v.
Chater, 105 F.3d 1255, 1257 (8th Cir. 1997) (impairments that are controllable or amenable to
treatment, including certain respiratory problems, do not support a finding of disability, and failure
to follow a prescribed course of remedial treatment, including the cessation of smoking, without
good reason is grounds for denying an application for benefits).
The ALJ commented that the evidence of record shows Plaintiff did not actively seek medical
treatment for his alleged impairments; his injuries and conditions were treated conservatively,
including medications, when he did seek treatment; he failed to comply with his physicians’
recommendations; and, none of his treating physicians placed restrictions on his activities that would
preclude all work activity. (T. 28) The records of Plaintiff’s treatment at Phoenix Baptist Hospital
from May 19-20, 2012 certainly support these conclusions. (T. 273-290) Upon his discharge from
the hospital, Plaintiff was diagnosed with COPD exacerbation; chest pain, felt to be non-cardiac in
nature; alcohol abuse and intoxication; hyperglycemia; fatty liver; elevated liver function tests
(perhaps related to alcohol abuse); tobacco abuse; and, obstructive sleep apnea. (T. 273) He was sent
home in stable condition with no restrictions of his activities other than “as tolerated.” Medications
3

Plaintiff advised Dr. Klag on May 19, 2012 that he smokes “more than a pack of
cigarettes a day” and “drinks at least a pint of liquor a day” (T. 279), but he denied at hearing
drinking daily and testified he only drinks alcohol occasionally (T. 57).
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prescribed included Albuterol metered-dose inhaler for shortness of breath, Tylenol #3 for pain, ZPak, and a Prednisone taper. He was instructed to follow up with his primary care physician and
cardiology within one to two weeks. (T. 274) He did not follow up as directed, further suggesting
that his symptoms were not as serious as alleged.
On July 11, 2012, Dr. Klag completed a cardiac assessment form stating Plaintiff had chest
tightness with minimal activity and brought on by dyspnea. Plaintiff’s most recent Echo, performed
on May 19, 2012, was noted to show an ejection fraction of 60%4. (T. 293-294) Dr. Klag’s cardiac
assessment did not recommend any functional restrictions. Thereafter, Plaintiff sought no further
treatment for his cardiac condition, took no medications, and he continued to smoke. (T. 295) See
Kisling v. Chater, supra.
Plaintiff saw Keith Cunningham, M.D. for a consultative examination on July 11, 2012.
Plaintiff stated “I am winded with anything,” and he reported difficulties walking a few hundred
yards, getting dressed, bending over, and carrying or lifting anything. He estimated that at most he
could walk 15 minutes before taking a break. (T. 295) Plaintiff acknowledged he was taking no
respiratory medications and did not require oxygen. He related that his recent cardiac work-up
showed normal testing; he had no history of coronary artery disease, congestive heart failure,
arrhythmias or valvular heart disease; and, he had no documented history of sleep apnea. (T. 295)
Dr. Cunningham noted that Plaintiff is independent with his activities of daily living and is able to
drive. (T. 295) While Dr. Cunningham observed that Plaintiff appeared short of breath with walking
to and from his exam room, he also noted upon examination Plaintiff could walk down the hall, turn
4

Within normal limits as an ejection fraction of 55% or higher is considered normal. See
http://www.mayoclinic.org/ejection-fraction/expert-answers/faq-20058286 (last accessed on
October 1, 2015).
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and walk back with the use of a cane; could stand on each leg independently on heels and toes; could
sit to a chair and stand; had normal coordination; had normal range of motion throughout; was able
to bend forward and stand up again (although reporting dizziness); and, he had normal motor and
sensory testing. (T. 296) Plaintiff coughed when asked to take a deep breath, but his breath sounds
were clear, and no wheeze or rhonchi were noted. (T. 296) Dr. Cunningham and his assistant
attempted pulmonary function testing numerous times, during which Plaintiff coughed and gagged,
and it was noted that he “will not give a consistent effort.” (T. 297) Dr. Cunningham’s assessment
was dyspnea demonstrating poor exercise tolerance; resting tachycardia consistent with deconditioning; sub-optimal pulmonary function testing; longstanding tobaccoism; obesity; query sleep
apnea; and, umbilical hernia. (T. 297)
Dr. Cunningham opined that Plaintiff could occasionally lift and/or carry 20 pounds,
frequently lift and/or carry 10 pounds, stand and/or walk six to eight hours in an eight hour day, use
of an assistive device (cane) was not medically necessary, and he could sit without limitation. (T.
298) Plaintiff had no limitations in reaching, handling, fingering or feeling, but he could only
occasionally climb (ramp/stairs), stoop, kneel, crouch, and he could never climb
(ladder/rope/scaffold) or crawl. (T. 299). Environmental restrictions included working around
heights, extremes in temperature, and around dust/fumes or gases based on Plaintiff’s obesity,
shortness of breath and safety. (T. 299) The Commissioner contends the ALJ’s RFC assessment of
sedentary work with environmental restrictions is consistent with Dr. Cunningham’s findings and
opinions. (T. 27) The Court agrees. Dr. Cunningham’s findings and opinions are substantial evidence
in support of the ALJ’s RFC finding. See Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir. 2004)

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(ALJ properly relief upon assessments of consultative physicians and a medical expert, which did
not conflict with the treating physician’s records).
The opinions of other non-examining medical consultants also support the ALJ’s physical
RFC determination. Upon a review of Plaintiff’s medical records, M. L. Rees, M.D., a state agency
medical consultant, found on August 15, 2012 that Plaintiff could occasionally lift and/or carry 20
pounds, frequently lift and/or carry 10 pounds, stand and/or walk about six hours in an eight-hour
workday, and push and/or pull without limitation. (T. 311) Dr. Rees opined that Plaintiff should
never climb (ladder/rope/scaffold), could only occasionally climb (ramp/stairs), stoop, kneel, crouch
or crawl, but could frequently engage in balancing. (T. 312) No manipulative, visual or
communicative limitations were noted. (T. 313-314) Environmental limitations included avoiding
concentrated exposure to extreme cold and heat, fumes, odors, dusts, gases, poor ventilation, etc.,
and hazards (machinery, heights, etc.). (T. 314) Dr. Rees also noted that Plaintiff’s “[c]ondition
expected to improve with medical management of COPD and if able to abstain from alcohol and
tobacco.” (T. 315) Dr. Rees’ findings were affirmed by Lucy Sauer, M.D. on February 3, 2013. (T.
377) Such opinion evidence further supports the ALJ’s RFC determination. See 20 C.F.R. §
404.1527.
Plaintiff also asserts mental health symptoms support his disability claim. (Doc. 12, P. 11)
Plaintiff’s scant treatment records, however, evidence no mental health symptoms or treatment.
Plaintiff’s psychiatric exam at Phoenix Baptist Hospital on May 19, 2012 showed that he was alert
and oriented x 3, he had good concentration and insight, and he made no complaints of psychiatric
symptoms. (T. 277) Similarly, the emergency room record on July 23, 2012 contains no complaints
of any mental health symptoms, and the review of systems documents “negative” for any psychiatric
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issues. (T. 338-339) The one page record from Banner Thunderbird Medical Clinic contains no
reference to any mental health issues. (T. 324) See Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir.
2004) (lack of objective medical evidence is a factor an ALJ may consider).
Plaintiff relies upon the observations and opinions of Dr. Samuel Hester, a psychologist and
consultative examiner, who performed a mental diagnostic evaluation on December 20, 2012. (T.
330-337) Dr. Hester reported that Plaintiff had no history of mental health treatment, and he opined
that Plaintiff’s mental symptoms “sound mostly situational.” (T. 330-331) Plaintiff reported sadness
and worry about his health decline, but Dr. Hester commented that “all seems situational.” (T. 330)
See Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010) (medical record supported conclusion that
claimant’s depression was situational in nature). No job loss related to mental problems was noted,
nor were any problems getting along with others. (T. 331) Plaintiff’s mood was observed to be only
slightly depressed and anxious; his affect was appropriate; his thought process was logical; his
thought content was appropriate; no perceptual abnormalities were noted; and, cognitive testing was
normal. (T. 332-334) Dr. Hester found Plaintiff capable of communicating and interacting in a
socially adequate manner and in an intelligible and effective manner. (T. 336) He also found
Plaintiff had the ability to attend and sustain concentration on basic tasks and the ability to sustain
persistence in completing tasks. (T. 336) Despite these findings, Dr. Hester concluded that Plaintiff
cannot cope with the mental demands of basic work tasks, nor could he complete work tasks within
an acceptable time frame, due to being out of breath and focused on painful ambulation. These
issues, he noted, “appear to be more physical than mental.” (T. 336) This reference to primarily
physical, and not mental, problems was understood by the ALJ, and the ALJ pointed out that
limitations physical in nature were outside of Dr. Hester’s area of expertise. (T. 30) See Brown v.
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Astrue, 611 F.3d 941, 953 (8th Cir. 2010), quoting Thomas v. Barnhart, 130 Fed.Appx. 62, 64 (8th
Cir. 2005) (“[g]reater weight is generally given to the opinion of a specialist about medical issues
in the area of specialty, than to the opinion of a non-specialist.”). The ALJ gave some weight to Dr.
Hester’s opinions, as they related to Plaintiff’s mental limitations, and he found them consistent with
a capacity to perform simple tasks with simple instructions.
Susan Daugherty, Ph.D., an agency medical consultant, performed a mental residual
functional capacity assessment of Plaintiff on February 4, 2013. (T. 359-363) Dr. Daugherty found
Plaintiff had moderate difficulties in his ability to carry out detailed instructions and to maintain
concentration for extended periods; however, Plaintiff had no limitations in the area of understanding
and memory, and no limitation in the ability to carry out very short and simple instructions. (T. 361)
Dr. Daugherty’s opinions further support the ALJ’s mental RFC assessment that Plaintiff would need
to work at jobs which involve only simple tasks and simple instructions. (T. 27)
A review of the record shows the ALJ took into account the reports and opinions of
Plaintiff’s treating physicians, the opinions of consultative physicians, the allegations and testimony
of Plaintiff, a third-party function report from Plaintiff’s mother, and the ALJ considered the
combination of all the Plaintiff’s impairments in making his RFC determination. See Jones v. Astrue,
619 F.3d 963, 971 (8th Cir. 2010). In doing so, the ALJ concluded Plaintiff retained the residual
functional capacity to perform sedentary work, but with certain environmental and non-exertional
limitations. As discussed above, substantial evidence supports the ALJ’s RFC determination.

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2. GAF Scores
Plaintiff also argues the ALJ erred in not giving his global assessment of functioning
(“GAF”) scores more evidentiary weight. Plaintiff claims his GAF score of 45 evidences serious
symptoms that must be carefully considered in determining RFC. (Doc. 12, p. 11)
The GAF score is a subjective determination representing “the clinician’s judgment of an
individual’s overall level of functioning.” Jones v. Astrue, 619 F.3d 963, 973 (8th Cir. 2010). The
failure to reference a GAF score is not, standing alone, sufficient ground to reverse a disability
determination. Id., citing Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002).
Quoting from Kornecky v. Comm’r of Soc. Sec., 167 Fed.Appx. 496, 511 (6th Cir. 2006), the Court
in Jones stated, “[a]ccording to the [Diagnostic and Statistical Manual’s] explanation of the [Global
Assessment Functioning] scale, a score may have little or no bearing on the subject’s social and
occupational functioning . . . [W]e are not aware of any statutory, regulatory, or other authority
requiring the ALJ to put stock in a [Global Assessment Functioning] score in the first place.”
(Emphasis added.) The Court went on to state that the Commissioner “has declined to endorse the
[GAF] score for ‘use in the Social Security and [Supplemental Security Income] disability
programs,’ and has indicated that [GAF] scores have no ‘direct correlation to the severity
requirements of the mental disorders listings,’” and that denials of disability benefits where
applicants had GAF scores of 50 or lower have been affirmed. Jones, 619 F.3d at 974-75.
We recognize, as the Commissioner did (Doc. 13, p. 14), that the Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition (“DSM–V”) was released in 2013, replacing the
DSM–IV. The DSM–V has abolished the use of GAF scores to “rate an individual’s level of
functioning because of ‘its conceptual lack of clarity’ and ‘questionable psychometrics in routine
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practice.’” Alcott v. Colvin, No. 4:13–CV–01074–NKL, 2014 WL 4660364, at *6 (W.D. Mo. Sept.
17, 2014) (citing Rayford v. Shinseki, 2013 WL 3153981, at *1 n. 2 (Vet.App.2013) (quoting the
DSM–V)). However, because the DSM–IV was in use at the time the medical assessments were
conducted in this case, the GAF scores remain relevant for consideration in this appeal. Rayford,
2013 WL 3153981, at *1 n. 2. Even so, the Court agrees with the Commissioner that Plaintiff’s
reliance on only one GAF score assessed by a one-time examiner as a basis for remand is misplaced.
Examples given in the DSM-IV, p. 34, of “serious symptoms” include suicidal ideation,
severe obsessive rituals, or frequent shoplifting, while examples of “serious impairment in social,
occupational, or school functioning” include having no friends and an inability to keep a job. There
is no evidence of any such “serious symptoms” in the present case. Plaintiff has no history of suicidal
ideation, no perceptual abnormalities or severe obsessive rituals were noted, and Plaintiff has had
no problems with the law. (T. 51, 333) Further, Plaintiff lives with his mother and a friend, gets out
on his own, shops, spends time with others, attends church, and has no problems getting along with
family, friends, neighbors and others. (T. 204-211, 235-242) The ALJ did not err by discounting the
Plaintiff’s GAF score in considering his functional ability. See Wright v. Colvin, 789 F.3d 847, 855
(8th Cir. 2015), in which the Court upheld the ALJ’s failure to give weight to the GAF score, citing
65 Fed. Reg. 50746, 50764-65 (GAF scores have no direct correlation to the severity requirements
in our mental disorders listings).
3. Additional Pulmonary Testing Not Necessary
Plaintiff next argues the ALJ erred in his RFC assessment by not ordering additional testing
to determine whether Plaintiff meets listing 3.02 for COPD, stating merely that “[t]here clearly exists
the distinct possibility that this is indeed the case.” (Doc. 12, p. 11) The argument lacks merit.
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The ALJ has a duty to fully and fairly develop the record. 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 exists “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, however, is not required to act as Plaintiff’s counsel. Clark v. Shalala, 28 F.3d 828, 830
(8th Cir. 1994) (ALJ not required to function as claimant’s substitute counsel, but only to develop
a “reasonably complete” record); 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). 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 determining whether an ALJ has fully and fairly developed the record, the
proper inquiry is whether the record contained sufficient evidence for him to make an informed
decision. See Payton v. Shalala, 25 F.3d 684, 686 (8th Cir. 1994).
The need for medical evidence does not necessarily require the Commissioner to produce
additional evidence not already within the record. An ALJ is permitted to issue a decision without
obtaining additional medical evidence so long as other evidence in the record provides a sufficient
basis for the ALJ’s decision. Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001). Providing
specific medical evidence to support his disability claim is, of course, the Plaintiff’s responsibility,
and that burden of proof remains on him at all times to prove up his disability and present the
strongest case possible. Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991); 20 C.F.R. §
416.912(a) and (c).

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Considering the evidence as a whole, the Court concludes the ALJ was not required to further
develop the record because it was already reasonably complete, and it contained sufficient evidence
from which the ALJ could make an informed decision. There is no ambiguity in the medical
evidence of record that must be resolved. The medical evidence contains all the necessary
information about Plaintiff’s pulmonary condition, including, the paucity of treatment for the
condition, Plaintiff’s non-compliance with taking medications for the condition, and his continued
smoking despite physician instructions to quit. Moreover, pulmonary function testing was performed,
and sub-optimal results were obtained because Plaintiff would not give a consistent effort. (T. 297)
The mere possibility that additional testing might show that Plaintiff meets the 3.02A listing for
COPD is insufficient to require the ALJ to order another pulmonary function test. See 20 C.F.R. §
416.912(e).
The evidence fully and fairly documents Plaintiff’s pulmonary impairment during the
relevant period, and it provides a sufficient basis for the ALJ’s decision. Accordingly, the Court finds
the ALJ was not obligated to order further testing to develop the record further. If Plaintiff wanted
to present more specific information in addition to the medical evidence of record, he had the
opportunity and should have done so. Onstad, 999 F.2d at 1234. Reversal for failure to fully and
fairly develop the record is warranted only where such failure is unfair or prejudicial. Haley, 258
F.3d at 748. Plaintiff has not shown the ALJ failed to develop the record in an unfair or prejudicial
manner.
B. No Error in Step Two Analysis
The ALJ did not find Plaintiff’s reported back pain was a severe impairment. (T. 25-26)
Plaintiff contends this was prejudicial error under the de minimus standard established by the law.
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(Doc. 12, p. 12) Plaintiff relies on his testimony that he suffers back pain “all the time,” that he was
treated for it in late 2011 when it was “unquestionably severe following his motor vehicle accident,”
and that back pain was noted again in May 2012. (Doc. 11, pp. 11-12) The ALJ’s determination that
Plaintiff’s back pain is not severe is supported by substantial evidence.
An impairment is not severe if it amounts only to a slight abnormality that would not
significantly limit the claimant’s physical or mental ability to do basic work activities. Bowen v.
Yuckert, 482 U.S. 137, 153 (1987). If the impairment would have no more than a minimal effect on
the claimant’s ability to work, then it does not satisfy the requirement of step two. Page v. Astrue,
484 F.3d 1040, 1043 (8th Cir. 2007). It is the claimant’s burden to establish that her impairment or
combination of impairments are severe. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000).
While severity is not an onerous requirement for the claimant to meet, see Hudson v. Bowen, 870
F.2d 1392, 1395 (8th Cir. 1989), it is also not a toothless standard, and the Eighth Circuit Court of
Appeals has upheld on numerous occasions the Commissioner’s finding that a claimant failed to
make this showing. See, e.g., Kirby v. Astrue, 500 F.3d 705, 708 (8th Cir. 2007); Page, 484 F.3d at
1043-44; Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003); Simmons, 264 F.3d at 755;
Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997); and, Nguyen v. Chater, 75 F.3d 429, 431
(8th Cir. 1996).
In describing his back pain, Plaintiff testified “[i]t’s like pressure in the small of my back,
and it radiates up,” “[i]t just hurts.” (T. 65) He stated the condition has troubled him “quite a while,”
“a few years,” and that it has progressively gotten worse. He thinks it resulted from heavy lifting with
the construction work he has done, but he acknowledged no back injury has been diagnosed by
anyone other than the chiropractor. (T. 65)
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The ALJ found the medical evidence showed Plaintiff’s positive response to chiropractic
treatment from October 7, 2011 to December 29, 2011 for moderate pain and inflammation in the
neck and back following an automobile accident. (T. 25) That finding accurately assessed the
medical evidence regarding Plaintiff’s back pain. The chiropractic exam reports show that on
October 21, 2011, “[h]e is responding to Tx [treatment] and is ready for the sub-acute stage of care”
(T. 415); on November 14, 2011, he was noted to be “in the strengthening stage of care,” and “is
responding to care as expected” (T. 412); on December 8, 2011, he was “in the restoration at home
stage of care,” and was “responding to treatment as expected” (T. 409); and, he was released from
care on December 29, 2011, having “80 to 90% improvement from injuries sustained in the MVC
on 10/7/11” (T. 406). Upon his release from care, Plaintiff was instructed to continue home exercises
as prescribed for another eight weeks, and he was told to return if problems arose. (T. 406) Plaintiff
did not return for any further chiropractic care for his back pain, suggesting that his back injury had
fully resolved. When Plaintiff presented to the Phoenix Baptist Hospital on May 19, 2012, he made
no complaints of any musculoskeletal back pain. (T. 276-277) Moreover, Plaintiff made no
complaints of back pain in his emergency room visit to Phoenix Baptist Hospital on July 23, 2012
(T. 338-339), nor at his office visit to Banner Thunderbird Medical Clinic on September 26, 2012
(T. 324). As noted by the ALJ, there is no evidence in the record of any current medical evaluation,
treatment, or prescribed medications by any physician for complaints of back pain. (T. 25)
The ALJ considered the minimal and conservative treatment Plaintiff received for his
complaints of back pain, and he correctly determined the medical evidence of record did not support
Plaintiff’s claim of disabling back pain. (T. 25) If an impairment can be controlled by treatment or
medication, it cannot be considered disabling. See Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir.
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2004); Brace v. Astrue, 578 F.3d 882, 885 (8th Cir. 2009); and, see also Smith v. Shalala, 987 F.2d
1371, 1374 (8th Cir. 1993) (treating physician’s conservative treatment was inconsistent with
plaintiff’s allegations of disabling pain). A mere diagnosis is not sufficient to prove disability, absent
some evidence to establish a functional loss resulting from that diagnosis. See Trenary v. Bowen,
898F.2d 1361, 1364 (8th Cir. 1990). There is simply no medical evidence in the record to establish
more than a minimal functional loss resulting from Plaintiff’s alleged back pain.
Considering the evidence as a whole, the Court finds the ALJ’s step two determination is
supported by substantial evidence and should be affirmed.
C. Sufficient Evidence Supports the ALJ’s Denial of Benefits
Plaintiff’s final point on appeal is a generic argument that if the ALJ’s decision denying
benefits was not supported by substantial evidence, then the case must be reversed or remanded.
Plaintiff asserts only that “[a]ny objective consideration of the evidence in this case provides
persuasive evidence detracting from the ALJ’s decision.”(Doc. 12, p. 13) For the reasons discussed
above, the Court finds substantial evidence does support the ALJ’s denial of benefits in this case.
IV. Conclusion
Having carefully reviewed and considered the entire record, the Court finds that substantial
evidence supports the ALJ’s Decision denying Plaintiff DIB and SSI benefits. The ALJ’s Decision
should be, and it hereby is, affirmed. Plaintiff’s Complaint should be dismissed with prejudice.
DATED this 8th day of October, 2015.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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