Phillips v. Social Security Administration Commissioner
ORDER AFFIRMING THE DECISION OF THE COMMISSIONER and Plaintiffs case is dismissed with prejudice and adopting the Recommendation of the Magistrate Judge as set forth in the 9 Report and Recommendations. Signed by Honorable Susan O. Hickey on July 2, 2012. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MICHAEL J. ASTRUE,
Commissioner of Social Security
Before the Court is the Plaintiff’s Objection (ECF No. 12) to the Report and
Recommendations filed by the Honorable Judge Barry Bryant, United States Magistrate Judge for
the Western District of Arkansas.
(ECF No. 9).
Judge Bryant recommends affirming an
Administrative Law Judge’s decision denying Social Security disability benefits to the Plaintiff.
Plaintiff timely objects, arguing that the Commissioner’s decision was not supported by substantial
evidence and that an Administrative Law Judge (“ALJ”) did not follow a remand Order from the
Social Security Appellate Panel. (ECF No. 12). After reviewing the record de novo, the Court adopts
the Report and Recommendation in its entirety.
Plaintiff first’s objection is that the ALJ’s failure to order a consultative exam prejudiced his
case. (ECF No. 12). Judge Bryant concluded that the Plaintiff was not prejudiced by the lack of a
consultative exam on remand because the ALJ properly considered the other medical records that
were in the Court record. (ECF No. 9). Specifically, Judge Bryant found that “plaintiff has not
demonstrated he was prejudiced by this failure” to order a consultative exam. Onstad v. Shalala, 999
F.2d 1232, 1234 (8th Cir. 1993) (holding that a claimant must demonstrate he or she was “prejudiced
or treated unfairly” by the ALJ not fully developing the record). Judge Bryant further found that the
“ALJ thoroughly analyzed and discussed Plaintiff’s alleged mental impairment and his treatment
records from UAMS AHEC Southwest Family Practice Clinic and Southwest Arkansas Counseling
and Mental Health Center. There is absolutely no indication in the record that the ALJ dismissed
Plaintiff’s alleged mental impairment solely based upon the records of Dr. Holladay.” Judge Bryant
further noted that “the ALJ also thoroughly reviewed the record in assessing Plaintiff’s limitations.
(Tr. 14-27).” (ECF No. 9) Here, Plaintiff has not made a specific objection and has only repeated
the same argument used in Plaintiff’s appeal brief. The Court finds that Judge Bryant’s findings
were supported by the record as a whole and that Plaintiff has not made objections specific enough
to trigger further review. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
Plaintiff’s second objection is that the ALJ erred in finding illiteracy was the only argument
supporting a non-exertional limitation. (ECF No. 12). Related to this second objection, Plaintiff also
argues that Judge Bryant wrongly concluded that, under the rule from the governing case on point,
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) and from 20 C.F.R. § 404.1529 and 20 C.F.R. §
416.929, the ALJ committed no error in finding there were discrepancies in the record as to the
amount of pain and daily activities which support a much higher status of activities than testified to.
Judge Bryant concluded that the ALJ found the Plaintiff’s testimony contained many discrepancies
that discredited his testimony. (ECF No. 9).
Specific to this non-exertional limitation issue, Judge Bryant found that “the only such [nonexertional] limitation he has mentioned in his briefing is a limitation in his ability to read and write
the English language.” (ECF No. 9). However, Judge Bryant found that the Plaintiff checked a box
saying he was not illiterate, and that the record held no evidence that the Plaintiff was illiterate.
Judge Bryant also found that the briefing did not show any other such pleaded non-exertional
limitations. However, Plaintiff points out that he did plead in his complaint that “this claim should
be remanded for reconsideration of the evidence” that “Plaintiff’s...severe depression ha[s] on his
residual functional capacity.” (ECF No. 7, at 16) Plaintiff did not mention these limitations in his
briefs before the Court.
Even though Judge Bryant chose to leave unaddressed one line in the original complaint that
was not specifically mentioned in the Plaintiff’s brief, the Court finds that there is substantial
evidence on the record as a whole that the ALJ properly considered any purported non-exertional
limitations. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002) (holding that the appropriate
standard is “whether the Commissioner’s findings are supported by substantial evidence on the
record as a whole.”).
As to the record as a whole, the Social Security Commissioner uses a five-step sequential
evaluation in considering whether an adult claimant suffers from a disability. The Commissioner
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; (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, whether the Commissioner has met its burden to
prove that there are other jobs in the national economy that the claimant can perform. See 20 C.F.R.
§§ 404.1520(a)-(f) (2003). 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).
Here, there is substantial evidence in the record that the ALJ properly concluded that Plaintiff
did not have a severe impairment that significantly limited his physical or mental ability to perform
basic work activities, and that there are other jobs in the national economy that the claimant can
perform. (ECF No. 9) The ALJ had the doctor’s reports to consider at the hearing, as well as the
testimony of the Plaintiff that cast doubt on the credibility of his claim. Regardless of whether the
other evidence of purported depression and pain were considered by Judge Bryant in determining
whether any other non-exertional limitations should have been a part of the Plaintiff’s profile, any
such evidence was before the ALJ and was properly considered.
For the above reasons, as well as those contained in the Report and Recommendation, the
Court adopts the Judge Bryant’s Report and Recommendation (ECF No. 9) in its entirety.
Accordingly, Plaintiff’s Complaint (ECF No. 1) should be and hereby is DISMISSED.
IT IS SO ORDERED, this 2nd day of July, 2012.
/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge
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