Mosel v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 31, 2016. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
Plaintiff, Steven Mosel, 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 supplemental security income (SSI) under the
provisions of Title 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).
Plaintiff filed his current application for SSI on February 26, 2014, alleging an
inability to work since February 16, 2013, due to back and right leg injury, internal injuries
from a fall, and right shoulder injury. (Doc. 11, pp. 138-143, 157, 161). An administrative
hearing was held on March 26, 2015, at which Plaintiff appeared with counsel, and he and
his former employer testified. (Doc. 11, pp. 22-49). The relevant time period in this SSI
claim begins on the date the application was filed – February 26, 2014.
By written decision dated April 4, 2015, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe –
hepatitis; osteoarthritis of right shoulder; and low back pain syndrome. (Doc. 11, p. 14).
However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff’s
impairments did not meet or equal the level of severity of any impairment listed in the
Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Doc. 11, p. 14).
The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform the full
range of light work as defined in 20 C.F.R. §416.967(b). (Doc. 11, p. 15). With the help of
the vocational expert (VE), the ALJ determined that during the relevant time period, Plaintiff
would be able to perform the jobs or power screw operator, warehouse checker, and office
helper. (Doc. 11, p. 17).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on May 4, 2015. (Doc. 11, pp. 4-6). Subsequently, Plaintiff filed
this action. (Doc. 1). This case is before the undersigned pursuant to the consent of the
parties. (Doc. 6). Both parties have filed appeal briefs, and the case is now ready for decision.
(Docs. 9, 10).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
This Court’s role is to determine whether the Commissioner’s findings are supported
by substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583
(8th Cir. 2002). 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. The ALJ’s
decision must be affirmed if the record contains substantial evidence to support it. Edwards
v. Barnhart, 314 F. 3d 964, 966 (8th Cir. 2003). 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. Haley v. Massanari,
258 F.3d 742, 747 (8th Cir. 2001). In other words, 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. 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 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). 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). A Plaintiff must show that his disability, not simply his impairment, has
lasted for at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential
evaluation process to each claim for disability benefits: (1) whether the claimant had engaged
in substantial gainful activity since filing his claim; (2) whether the claimant had a severe
physical and/or mental impairment or combination of impairments; (3) whether the
impairment(s) met or equaled an impairment in the listings; (4) whether the impairment(s)
prevented the claimant from doing past relevant work; and (5) whether the claimant was able
to perform other work in the national economy given his age, education, and experience. See
20 C.F.R. §416.920 Only if the final stage is reached does the fact finder consider the
Plaintiff’s age, education, and work experience in light of his RFC.
See McCoy v.
Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §416.920, abrogated on other
grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. §416.920.
Plaintiff raises the following issues in this matter: 1) Whether the ALJ erred in his
RFC determination; and 2) Whether the ALJ failed to fully and fairly develop the record.
The ALJ was required to consider all the evidence relating to Plaintiff’s subjective
complaints including evidence presented by third parties that relates to: (1) Plaintiff’s daily
activities; (2) the duration, frequency, and intensity of his pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness, and side effects of his medication; and (5)
functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While
an ALJ may not discount a claimant’s subjective complaints solely because the medical
evidence fails to support them, an ALJ may discount those complaints where inconsistencies
appear in the record as a whole. Id. As the Eighth Circuit has observed, “Our touchstone is
that [a claimant’s] credibility is primarily a matter for the ALJ to decide.” Edwards v.
Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
After reviewing the record as a whole, the Court finds there is substantial evidence to
support the ALJ’s credibility analysis.
B. RFC Determination:
Plaintiff argues that the ALJ’s RFC determination is not supported by substantial
evidence, based upon the proper consideration of the evidence and findings of Dr. Shannon
Brownfield, a consultative examiner. Plaintiff also argues that given Plaintiff’s complaints
and evidence of record, he would be able to perform sedentary work, but not light work.
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. This includes
medical records, observations of treating physicians and others, and the claimant’s own
descriptions of his limitations. Gilliam’s v. Barnhart, 3 93 F.3d 798, 801 (8th Cir. 2005);
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from
symptoms such as pain are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3).
The United States Court of Appeals for 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). “[T]he ALJ is [also] required to set forth
specifically a claimant’s limitations and to determine how those limitations affect his RFC.”
Id. “The ALJ is permitted to base its RFC determination on ‘a non-examining physician’s
opinion and other medical evidence in the record.’” Barrows v. Colvin, No. C 13-4087MWB, 2015 WL 1510159 at *11 (N.D. Iowa Mar. 31, 2015)(quoting from Willms v. Colvin,
Civil No. 12-2871, 2013 WL 6230346 (D. Minn. Dec. 2, 2013).
Dr. Brownfield is neither a treating source nor a non-examining source, but is a
consultative examiner, meaning that he has examined the claimant on at least one occasion.
The weight to be given to his opinion is determined by the factors listed under 20 C.F.R.
§404.1527(c). Comstock v. Astrue, 923 F.Supp. 2d 1142, 1156 (N.D. Iowa 2013). The ALJ
is not required to give reasons for the weight given to Dr. Brownfield’s opinion, because he
is not a treating source. Id.
On or around December 18, 2013, Plaintiff was admitted to Baxter Regional Medical
Center, stating he fell the night before from a chair and landed on his buttocks. (Doc. 10, p.
343). At the time of the fall, it was reported that he basically rolled over and stayed on the
floor for several hours and continued to complain of buttock pain, and was then brought to
the emergency room, where he was evaluated. (Doc. 11, p. 349). It was also reported that
Plaintiff had a significant alcohol history and that he drank a half a pint to a fifth of bourbon
daily. (Doc. 11, p. 349). The impression given was recent fall, probably related to alcohol
intoxication, buttock trauma, history of methicillin-resistant staphylococcus aureaus cellulitis
in the past, acute renal failure, rhabdomyolysis, alcohol-related hepatitis and fatty liver
infiltration, and B12 deficiency. (Doc. 11, p. 350). X-rays of his spine revealed degenerative
changes, but no compression fractures of the lower thoracic or lumbar spine. There was also
some mild thickening of the urinary bladder wall reported. (Doc. 11, p. 377). A CT of
Plaintiff’s cervical spine revealed reversal of normal curvature consistent with some muscle
spasm with rather pronounced degenerative bony spurs, but no acute fractures were seen. The
apices of the lungs appeared clear. (Doc. 11, p. 378). In the discharge diagnosis, dated
December 23, 2013, Dr. Lonnie Robinson reported that Plaintiff had a history of alcohol
abuse and that apparently he fell in the bedroom and struck his buttocks on the floor, stayed
down for quite some time, and was found to have a significant cellulitis involving the
buttocks. (Doc. 11, p. 242). His liver function tests were elevated and his renal function was
very bad, and he was felt to be in renal failure from rhabdomyolysis. (Doc. 11, p. 242). Dr.
Robinson reported that he had an extensive discussion with Plaintiff regarding his alcoholism
and advised him that the most appropriate response would be total abstinence from alcohol.
(Doc. 11, p. 242). He further stated that they discussed community resources for alcohol
treatment, but Dr. Robinson was not optimistic that Plaintiff would follow up with any of the
services or pursue abstinence. (Doc. 11, p. 243).
Plaintiff saw Dr. Robinson again on January 20, 2014, for follow up, and Dr.
Robinson reported that Plaintiff’s alcohol abuse was diagnosed more than five years ago, and
that Plaintiff states that he was “cutting back,” was now drinking one pint per week rather
than per day, but was not enrolled in formal treatment. (Doc. 11, p. 237). Dr. Robinson
continued to recommend complete abstinence from alcohol and to seek professional help,
counseling and support. Plaintiff saw Dr. K. Simon Abraham on January 29, 2014, who
noted that Plaintiff walked with a limp and a cane. (Doc. 11, p. 403).
On April 18, 2014, Dr. Shannon Brownfield conducted a General Physical
Examination. (Doc. 11, p. 406). Dr. Brownfield reported that Plaintiff limped to the right and
could perform all limb functions, including standing/walking without assistive devices. Dr.
Brownfield found Plaintiff could bend over to pick up a coin and could squat and arise from
a squatting position. (Doc. 11, p. 406). Dr. Brownfield also reported Plaintiff had normal
grip strength, no muscle atrophy or weakness, and no range of motion deficits in the elbows,
wrists, hands, hips, knees or ankles. Dr. Brownfield also noted that Plaintiff’s range of
motion of his shoulder in forward elevation was 90 degrees with pain, and the range of
motion of his lumbar spine flexion was 0-75 degrees with pain. (Doc. 11, p. 408). Dr.
Brownfield concluded that Plaintiff had moderate to severe limits in lifting, stooping, and
prolonged positions, and had moderate to severe limits in his right shoulder. He also noted
that Plaintiff had moderate degenerative disc disease in his lumbar spine at L4-5-S3, and
moderate osteoarthritis with spurring. (Doc. 11, p. 411).
On May 13, 2014, non-examining consultant, Dr. William Harrison, completed a
Physical RFC Assessment, finding that Plaintiff could perform light work with certain
postural limitations. (Doc. 11, p. 58). On July 28, 2014, non-examining consultant, Dr. Janet
Cathy, also found Plaintiff could perform light work with certain postural limitations. (Doc.
11, p. 69).
In his decision, the ALJ addressed and considered Dr. Brownfield’s findings. The
Court believes the ALJ accounted for Dr. Brownfield’s findings by limiting Plaintiff’s lifting
to no more than 20 pounds occasionally and 10 pounds frequently. In addition, the ALJ gave
the opinions of the state agency physicians some weight, as they were consistent with the
medical findings. (Doc. 11, p. 13).
The Court also finds it noteworthy that at the time of the hearing, Plaintiff was not
taking any medications. (Doc. 11, p. 33). Plaintiff contends that he was not going to more
doctors because he did not have the money. (Doc. 11, p. 35). He testified that he just heard
about Obamacare and stated that it was hard for him to drive back and forth because he had a
stick shift vehicle. (Doc. 11, p. 36). He also testified that he had gone to apply at the
Christian Clinic, but did not have the gas money to get back and forth. (Doc. 11, p. 36).
However, Plaintiff somehow was able to afford alcohol, and when the ALJ asked him how he
was able to afford if, Plaintiff stated “I don’t drink that much and a friend comes over….I
just maybe have one drink a week and my dad drinks, so I know I have a drink with him at
his house.” (Doc. 11, pp. 40-41). Furthermore, the record does not reflect Plaintiff was ever
refused treatment due to insufficient funds.
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s RFC determination.
C. Failure to Fully and Fairly Develop the Record:
Plaintiff argues that the ALJ erred in failing to develop the record by not sending him
for a consultative psychological examination. “Plaintiff bears a heavy burden in showing the
record has been inadequately developed.” Chapman v. Colvin, No. 4:15-CV-00522-JLH-JJV,
2016 WL 2585652 at *4 (E.D. Ark. Apr. 11, 2016). The ALJ has a duty to fully and fairly
develop the record. See Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995); Freeman v.
Apfel, 208 F.3d 687, 692 (8th Cir. 2000). This is particularly true when Plaintiff is not
represented by counsel. Payton v. Shalala, 25 FG.3d 684, 686 (8th Cir. 1994). This can be
done by re-contacting medical sources and by ordering additional consultative examinations,
if necessary. See 20 C.F.R. § 404.1512. The ALJ’s duty to fully and fairly develop the
record is independent of Plaintiff’s burden to press his case. Vossen v. Astrue, 612 F.3d
1011, 1016 (8th Cir. 2010). However, the ALJ is not required to function as Plaintiff’s
substitute counsel, but only to develop a reasonably complete record. See 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”). “The regulations do not require the
Secretary or the ALJ to order a consultative evaluation of every alleged impairment. They
simply grant the ALJ the authority to do so if the existing medical sources do not contain
sufficient evidence to make a determination.” Matthews v. Bowen, 879 F.2d 423, 424 (8th
Cir. 1989). “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.” Mans v. Colvin, No. 13-CV-2103, 2014 WL 3689797 at *4 (W.D. Ark., July 24,
2014)(quoting Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994).
Plaintiff had no history of hospitalization or outpatient treatment for any psychiatric
problems. (Doc. 11, p. 407). During Dr. Brownfield’s examination, Plaintiff was reported as
being oriented to time, person, and place, and there was no evidence of psychosis. (Doc. 11,
p. 410). Nor is there any evidence that Plaintiff was ever diagnosed with depression.
The Court finds that Plaintiff has failed to meet his burden of showing that the record
has been inadequately developed relating to Plaintiff’s depression.
D. Hypothetical Question to the VE:
After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical questions the ALJ posed to the VE fully set forth
the impairments which the ALJ accepted as true and which were supported by the record as a
whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds that
the VE’s opinion constitutes substantial evidence supporting the ALJ's conclusion that
Plaintiff would be able to perform the jobs of power screw operator; warehouse checker; and
office helper. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from vocational
expert based on properly phrased hypothetical question constitutes substantial evidence).
Accordingly, having carefully reviewed the record, the Court finds substantial
evidence supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision
is hereby affirmed. The Plaintiff’s Complaint should be, and is hereby, dismissed with
IT IS SO ORDERED this 31st day of August, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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