Bohanon v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 17, 2012. (cap)

N THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JASON D. BOHANON
vs.

PLAINTIFF
Civil No. 4:11-cv-04004

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Jason D. Bohanon (“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. 5.1 Pursuant to this authority, the Court
issues this memorandum opinion and orders the entry of a final judgment in this matter.
1.

Background:
Plaintiff protectively filed his disability applications on February 2, 2007. (Tr. 14, 102-111).

In his applications, Plaintiff alleged he was disabled due to the following: “Reading, written
expression disorder, learning disability. I have problems with my sight and mental problems and
mood swings. I have depression. I feel anxiety and panic attacks frequently. I feel frustrated. I feel

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The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript pages
for this case are referenced by the designation “Tr.”

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that I am going to lose control of myself.” (Tr. 143). Plaintiff alleged an onset date of December 18,
2006. (Tr. 102, 107). These applications were denied initially and again on reconsideration. (Tr. 4750).
Thereafter, Plaintiff requested an administrative hearing on his applications, and this hearing
request was granted. (Tr. 23-46, 63-68). An administrative hearing was held on October 27, 2008
in Texarkana, Arkansas. (Tr. 23-46). At this administrative hearing, Plaintiff was present and was
represented by Melynda Pearson. Id. Plaintiff and Vocational Expert (“VE”) Dr. Tyra A. BernardWatts testified at this hearing. (Tr. 23-46, 94-101). On the date of this hearing, Plaintiff was thirtyfive (35) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c) (2008), and
had completed the ninth grade in school. (Tr. 27-29).
On January 29, 2009, subsequent to this hearing, the ALJ entered an unfavorable decision on
Plaintiff’s applications. (Tr. 14-22). In this decision, the ALJ determined Plaintiff met the insured
status requirements of the Act through December 31, 2010. (Tr. 16, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since December 18, 2006, his
alleged onset date. (Tr. 16, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: anxiety disorder, depression, and mood disorder. (Tr. 16, 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. 16-18, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 18-21, Finding 5). First, the ALJ found Plaintiff’s subjective allegations were not supported by
the overall evidence and were not fully credible. (Tr. 18-21, Finding 5). Second, the ALJ found
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Plaintiff retained the RFC to perform “medium” work as defined in 20 C.F.R. §§ 404.1567(c) and
416.967(c) except “non-exertionally [he] is limited to unskilled or rote activity, can understand,
follow, remember concrete instructions and contact with supervisors and co-workers is superficial,
with limited or no contact with the public.” Id. Such “medium” work includes the following:
“Medium Work. Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we
determine that he or she can also do sedentary and light work.” See 20 C.F.R. §§ 404.1567(c) and
416.967(c).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”) and found Plaintiff’s PRW
included work as a poultry eviscerator (unskilled, light). (Tr. 21-22, Finding 6). The VE testified at
the administrative hearing on this issue. (Tr. 41-43). Based upon that testimony, the ALJ determined
Plaintiff retained the capacity to perform this PRW. (Tr. 21-22, Finding 6). Because Plaintiff
retained the capacity to perform this PRW, the ALJ determined Plaintiff had not been under a
disability, as defined by the Act, from December 18, 2006 through the date of his decision or through
January 29, 2009.2 (Tr. 22, Finding 7).
On February 3, 2009, Plaintiff requested that the Appeals Council review the ALJ’s
unfavorable decision. (Tr. 10). See 20 C.F.R. § 404.968. On December 16, 2010, the Appeals
Council declined to review this disability determination. (Tr. 1-3). On January 12, 2011, Plaintiff
filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on

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It appears the ALJ also found that even if Plaintiff did not retain the capacity to perform his PRW, he
could work as a floor worker (unskilled, light) with 4,920 such jobs in Arkansas, 8,760 such jobs in Texas, and
524,000 such jobs in the nation or as a bag loader (unskilled, light) with 1,850 such jobs in Arkansas, 4,440 such
jobs in Texas, and 700,000 such jobs in the national economy. (Tr. 21).

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January 28, 2011. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 8-9. This case is now
ready for decision.
2.

Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s

findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(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
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disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See
42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses the
familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged
in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly
limits the claimant’s physical or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is disabled without regard to age, education, and work experience);
(4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past
relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3.

Discussion:
In his appeal brief, Plaintiff raises the following three arguments: (A) the ALJ erred in

assessing his alleged substance abuse3; (B) the ALJ erred by finding his impairments did not meet the
requirements of Listings 12.03, 12.04, 12.06, and 12.08; and (C) the ALJ improperly developed the

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Plaintiff’s actual argument header is that the ALJ’s disability determination is not supported by substantial
evidence in the record. ECF No. 8 at 9-13. After reviewing his argument, however, it appears he is only arguing that
the ALJ improperly considered his alleged substance abuse. Thus, this Court will only address that issue.

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record.4 ECF No. 8 at 8-20. In response, Defendant argues that substantial evidence supports the
ALJ’s disability determination, and this case should not be reversed and remanded. ECF No. 9 at 512. Specifically, Defendant argues that the ALJ properly evaluated the Listings, properly considered
Plaintiff’s GAF score, and properly posed his hypothetical question to the VE. Id. This Court will
address each of Plaintiff’s arguments for reversal.
A.

Evaluation of Substance Abuse

Plaintiff claims the ALJ improperly evaluated his alleged substance abuse. ECF No. 8 at 9-13.
Specifically, Plaintiff claims the ALJ was required to consider whether his substance abuse was a
“contributing factor” to a determination of disability, and the ALJ did not consider this issue in his
opinion. See 42 U.S.C. § 423(d)(2)(c).
Despite Plaintiff’s claim, the ALJ only considered Plaintiff’s substance abuse when assessing
whether Plaintiff’s allegations were credible. (Tr. 21).

In his opinion, the ALJ notes the following

regarding Plaintiff’s substance abuse: “. . . the claimant when medically compliant and avoiding
substance abuse has shown significant reduction in symptoms.” (Tr. 21) (emphasis added). Clearly,
Plaintiff’s reported substance abuse may impact his credibility. This is especially true since he
reported “sporadic” cocaine use to his mental health counselor and then claimed at the administrative
hearing that he only used cocaine one time. (Tr. 32-33).
Further, and more importantly, the ALJ is not required to follow the requirements of 42 U.S.C.
§ 423(d)(2)(c) when the ALJ does not find the substance abuse is a “contributing factor.” Thus,
Plaintiff’s allegation that the ALJ was required to follow this statute in evaluating his substance abuse

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Plaintiff’s argument header is that “The Administrative Law Judge erred in discrediting Plaintiff’s
testimony.” ECF No. 8 at 19-20. Upon review, Plaintiff’s argument is actually that the ALJ failed to fully and fairly
develop the record. Thus, this Court will only address that issue.

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is entirely meritless.
B.

Requirements of the Listings

Plaintiff claims his mental impairments meet the requirements of Listings 12.03, 12.04, 12.06,
and 12.08. ECF No. 8 at 13-19. Each of these four listings requires a demonstration of at least two
of the following: (1) marked restriction in activities of daily living; (2) marked difficulty in
maintaining social functioning; (3) marked difficulty in maintaining concentration, persistence, or
pace; and (4) repeated episodes of decompensation, each of extended duration. This Court will
evaluate these categories.
First, Plaintiff claims he has a marked restriction in activities of daily living. Plaintiff argues
that he “is totally dependent on his partner and father for activities such as driving and reminding him
to take his medication, bathe and even to eat at times.” ECF No. 8 at 17-18. However, the record
also demonstrates Plaintiff lives alone in a house, drives an automobile without restriction, prepares
his meals, shops for groceries, cleans his house, washes laundry, and takes care of his personal
hygiene needs. (Tr. 28-29, 35, 164, 166). Also, on June 15, 2006, Dr. Rafeal Otero, Ph.D. examined
Plaintiff and described his routine daily activities. (Tr. 216-218). He stated Plaintiff’s routine daily
activities included being able to care for his personal needs without supervision, shop, perform daily
chores, set daily goals and carry them out without supervision, and be aware of normal dangers. Id.
Based upon this information, this Court finds the ALJ properly determined Plaintiff’s daily activities
were, at most, only mildly restricted. (Tr. 17).
Second, Plaintiff claims he has a marked difficulty in maintaining social functioning. Plaintiff
claims he has been diagnosed with severe panic attacks, anxiety attacks, post-traumatic stress
disorder, social anxiety, and agoraphobia that cause this marked difficulty. ECF No. 8 at 18. This
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Court has reviewed the records Plaintiff cited in support of his claim. Despite these diagnoses, his
medical records indicate he is stable when he takes his medications. (Tr. 237, 326). Further, these
medical records demonstrate fairly isolated instances of social impairment, and none of these records
indicate Plaintiff has suffered from a marked restriction in this domain for at least a year. (Tr. 254,
317, 326, 331). Thus, the ALJ properly found Plaintiff had only moderate difficulties in maintaining
social functioning. (Tr. 17).
Third, Plaintiff claims he has a marked difficulty in maintaining concentration, persistence,
or pace. ECF No. 8 at 17-18. Plaintiff claims his GAF score of 30 from January 5, 2007 (Tr. 244)
establishes such a marked restriction in this domain. Id. This one-time GAF score does not, however,
necessarily establish a marked restriction in this domain. See Juszczyk v. Astrue, 542 F.3d 626, 632
(8th Cir. 2008) (disregarding a one-time GAF score of 35 to 40 because it was extreme considering
the remainder of the medical records). Plaintiff’s other medical records also indicate he does not have
a marked limitation in this domain. For instance, Dr. Otero found Plaintiff’s IQ scores were only on
the borderline to low average range. (Tr. 217). Thus, this Court finds the ALJ properly determined
Plaintiff only had moderate difficulties in this domain.5
C.

Record Development

Plaintiff claims the ALJ erred by failing to fully and fairly develop the record. ECF No. 8 at
19-20. Specifically, Plaintiff claims the following: “The Administrative Law Judge should have
sought an opinion from Plaintiff’s treating physicians, or in the alternative, ordered consultative
examinations, including psychiatric and/or psychological evaluations, to assess Plaintiff’s mental and

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Because Plaintiff did not have a marked limitation in any of the first three domains, this Court does not
need to address the final domain of whether Plaintiff had repeated episodes of decompensation (each of extended
duration).

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physical residual functional capacity.” Id.
While Plaintiff is correct that the ALJ does have a duty to fully and fairly develop the record,
the ALJ in this case developed a record of over eight hundred pages. The record includes notes from
Plaintiff’s treating physicians as well as reports from consultative examinations. Plaintiff has
provided no indication in his argument or briefing as to how he was prejudiced by the ALJ’s alleged
failure to develop the record. Thus, this case should not be reversed and remanded on this basis. See
Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993) (holding that “absent unfairness or prejudice,
we will not remand”).
4.

Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits

to Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating
these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 17th day of January, 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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