McKinney v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on August 9, 2011. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
MATTHEW L. MCKINNEY

PLAINTIFF

v.

Civil No. 10-5073

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Matthew McKinney, 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 supplemental security income (“SSI”) under Title 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:
The plaintiff filed his application for SSI on September 26, 2006, alleging an onset date

of October 10, 1985, due to a learning disability, borderline intellectual functioning (“BIF”),
personality disorder, shoulder pain, back pain, obesity, headaches, and poor memory. Tr. 137,
151. An administrative hearing was held on June 12, 2008. Tr.13-59. Plaintiff was present and
represented by counsel. At this time, plaintiff was 22 years of age and possessed the equivalent
of a high school education. Tr. 21. He had no past relevant work (“PRW”) experience. Tr. 21.
On September 18, 2008, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s shoulder pain, back disorder, obesity, BIF and personality disorder did not
meet or equal any Appendix 1 listing. Tr. 69-72. The ALJ determined that plaintiff maintained

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the residual functional capacity (“RFC”) to perform medium work that does not involve climbing
ladders, scaffolds, or ropes; exposure to unprotected heights or dangerous equipment/machines;
the operation of vehicles; or the performance of overhead work. Tr. 72-74. From a mental
standpoint, Plaintiff was also limited to work involving no more than simple math, writing, and
reading; simple and non-complex instructions; interpersonal contact with co-workers and the
public that is incidental to the work performed; the complexity of the tasks is learned and
performed by rote; the work is routine and repetitive; the work involves few variables and little
judgment; and, the supervision required is simple, direct, and concrete. With the assistance of
a vocational expert, the ALJ then found that plaintiff could perform work as a hand packager and
small products assembler. Tr. 75-76.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on April 2, 2010. Tr. 1-3. Subsequently, plaintiff filed this action. ECF No. 1. This
case is before the undersigned by consent of the parties. Both parties have filed appeal briefs,
and the case is now ready for decision.
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 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
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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:

The Commissioner’s regulations require him 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)3

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(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.

Evidence Presented:
On October 16, 1999, Plaintiff was involved in a motor vehicle accident, and sustained

a skull fracture and a hematoma. Tr. 160-162. A significant loss of consciousness was also
noted. Unfortunately, the records documenting his treatment for these injuries are illegible.
However, based on the summarization provided by Plaintiff’s counsel, it appears as though a CT
scan and other tests showed no significant abnormalities. Tr. 160-162.
On November 27, 2006, Plaintiff underwent a general physical exam with Dr. Neil
Mullins. Tr. 183-189. Plaintiff complained of a learning disability, pain in both shoulders, pain
in his lower thoracic spine and lumbosacral area, and frequent headaches. An examination
revealed a normal range of motion in all areas with no joint abnormalities or muscle atrophy
noted. Dr. Mullins diagnosed Plaintiff with a learning disability, right shoulder pain, chronic
lumbosacral pain, severe obesity, very diminished eye sight, and chronic headaches. Tr. 183189.
On December 6, 2006, Plaintiff underwent a mental status exam and intellectual
assessment with Dr. Mary Sonntag. Tr. 190-193. He reported being involved in an automobile
accident and sustaining a head injury resulting in a skull fracture and a blood clot on his brain.
After this accident, Plaintiff stated that his memory deteriorated as did his ability to read and
write. I. Q. testing revealed that Plaintiff was functioning within the borderline to mildly
mentally retarded range of intellect. The wide range between his subtest scaled scores strongly
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suggested the presence of learning disabilities. Dr. Sonntag noted that his mood and affect were
normal, but he gave up easily without even looking at or listening to the stimulus questions. Due
to his brain injury and the suggestion of organicity, she recommended that Plaintiff undergo
further evaluation by a neuropsychologist for a definitive diagnosis. However, Dr. Sonntag
diagnosed Plaintiff with mild mental retardation and dependent personality disorder and assessed
him with a global assessment of functioning (“GAF”) score of 55. She also noted a speech
impediment, an inability to drive because he could not pass the licensing exam, poor
concentration, extremely poor persistence, and slow pace. Plaintiff was able to shop for
groceries, clothing, and personal items with his parents; wash dishes; cook occasionally; and,
clean his room. Tr. 190-193.
On October 29, 2007, Dr. Sonntag completed a second mental diagnostic evaluation. Tr.
220-229. Again, Plaintiff tested within the borderline level of intellectual functioning and
exhibited a learning disability. However, this time, she was able to rule out mild mental
retardation as a diagnosis. Dr. Sonntag diagnosed him with dependent personality disorder and
assessed him with a GAF of 58. She noted that he had no difficulty communicating in a socially
adequate manner, had good capacity to communicate in an intelligible and effective manner,
good capacity to cope with the typical mental/cognitive demands of basic work-like tasks, fair
ability to attend and sustain concentration on basic tasks, good capacity to sustain persistence in
completing tasks, and good capacity to complete work-like tasks within an acceptable time
frame. Tr. 220-229.
Dr. Sonntag also completed an RFC assessment. She determined Plaintiff would have
moderate limitations understanding and remembering complex instructions. Dr. Sonntg stated
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he would probably have no problem with repetitive type tasks where memory or judgment would
be minimized. However, she did indicate that his shyness would be troublesome. Tr. 220-229.
IV.

Discussion:
We first evaluate Plaintiff’s subjective complaints. When evaluating the credibility of

plaintiff’s subjective complaints the ALJ is required to make an express credibility determination
detailing his reasons for discrediting the testimony. Caviness v. Massanari, 250 F.3d 603, 605
(8th Cir. 2001).
The standard of evaluation is not whether plaintiff experiences pain, but if the pain
alleged is intense enough to cause functional limitations. Gowell v. Apfel, 242 F.3d 793, 796 (8th
Cir. 2001) (holding that the real issue is not whether the plaintiff is experiencing pain, but how
severe and whether it prevents him from performing any kind of work).
An ALJ may not disregard a claimant’s subjective complaints solely because the
objective medical evidence does not fully support them. See Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984). The ALJ is required to take into account the following factors in
evaluating the credibility of a claimant's subjective complaints: (1) the claimant's daily activities;
(2) the duration, frequency, and intensity of the pain; (3) dosage, effectiveness, and side effects
of medication; (4) precipitating and aggravating factors; and (5) functional restrictions. See id.
The ALJ must make express credibility determinations and set forth the inconsistencies in the
record which cause him to reject the plaintiff's complaints. Masterson v. Barnhart, 363 F.3d
731, 738 (8th Cir.2004). However, the ALJ need not explicitly discuss each Polaski factor.
Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.2004). The ALJ only need acknowledge
and consider those factors before discounting a claimant's subjective complaints. Id. Even so,
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the ALJ may discount a claimant’s subjective complaints if there are inconsistencies between the
alleged impairments and the evidence as a whole. Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th
Cir. 2001); Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001).
1.

Mental Limitations:

As previously discussed, Plaintiff has alleged disability due borderline intellectual
functioning, mild mental retardation, and personality disorder. We note that Plaintiff failed to
seek out any mental health treatment for his condition during the relevant time period. See Kirby
v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (holding that the 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). The only evidence
concerning Plaintiff’s mental status is two consultative exams conducted by Dr. Sonntag. Dr.
Sonntag assessed Plaintiff with a GAF between 55 and 58, and ultimately determined that
Plaintiff had no more than moderate limitations in any area of functioning. Further, although he
alleges to have been enrolled in special education classes, Plaintiff was able to attend and
graduate high school. And, he reported having friends and the ability to get along with others.
The only job he held was at a sheltered workshop. He reported no difficulties there, rather quit
because they did not pay him enough to buy the gas to get to and from work each day. Therefore,
it does not appear that Plaintiff’s BIF or personality disorder has interfered with his ability to
perform work-related activities.
Although Dr. Sonntag’s initial exam revealed a possible diagnosis of mild mental
retardation, she was able to rule this out upon further testing. Plaintiff contends that the ALJ
erred by failing to develop the record with regard to Dr. Sonntag’s opinions. He contends that
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her two examinations are in direct conflict with one another. However, Dr. Sonntag indicated
that she did not feel Plaintiff had put forth adequate effort on the testing performed in December
2006. Tr. 224. As such, in October 2007, he was warned that if he did not put forth adequate
effort, testing would cease and he would be assigned to another examiner. Plaintiff then
completed testing with adequate effort noted. Accordingly, we believe the ALJ was correct in
relying on the October 2007 testing, rather than the December 2006 testing. No further
development of the record was required. See Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir.
2010) (holding that the ALJ is required to order medical examinations and tests only if the
medical records presented to him do not give sufficient medical evidence to determine whether
the claimant is disabled).
2.

Physical Limitations:

Plaintiff also alleges disability due to pain, obesity, and headaches. We note that Plaintiff
has not sought out treatment for any of these conditions. 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). The record
does contain illegible records documenting Plaintiff’s treatment following an automobile
accident in 1999 in which he sustained a head injury. However, Plaintiff’s counsel concedes that
all tests conducted were negative. And, there is no further objective evidence to indicate that
Plaintiff has residual physical limitations associated with the accident. The only physical exam
of record actually reveals no range of motion limitations, atrophy, weakness, or decreased
sensation. See Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004) (holding that lack of
objective medical evidence is a factor an ALJ may consider). Further, Plaintiff was taking only
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Ibuprofen to treat his pain. See Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993) (pain which
can be remedied or controlled with over-the-counter analgesics normally will not support a
finding of disability). As such, we can not say Plaintiff’s physical impairments were disabling.
3.

Activities of Daily Living:

Plaintiff’s own reports concerning his daily activities also undermine his claim of
disability. Plaintiff told Dr. Sonntag that he could shop for groceries, clothing, and personal
items with his parents; wash dishes; cook; and, clean his room.

His testimony at the

administrative hearing also reveals that he was able to assist with the care of his disabled father,
with whom he resided; vacuum; clean the bathroom; count change; play the guitar; and, associate
with friends. Tr. 24, 27-31. See Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996) (ability to care
for one child, occasionally drive, and sometimes go to the store); Nguyen v. Chater, 75 F.3d 429,
430-31 (8th Cir. 1996) (ability to visit neighbors, cook, do laundry, and attend church); Novotny
v. Chater, 72 F.3d at 671 (ability to carry out garbage, carry grocery bags, and drive); Johnston
v. Shalala, 42 F.3d 448, 451 (8th Cir. 1994) (claimant’s ability to read, watch television, and
drive indicated his pain did not interfere with his ability to concentrate); Woolf v. Shalala, 3 F.3d
1210, 1213-1214 (8th Cir. 1993) (ability to live alone, drive, grocery shop, and perform
housework with some help from a neighbor). We find these activities to be inconsistent with a
finding of disability.
4.

Witness Testimony:

Plaintiff’s mother and father both testified regarding Plaintiff’s impairments. We note,
however, an ALJ is not required to accept a statement from a witness who will benefit financially
from a determination of disability, Buckner v. Apfel, 213 F.3d 1006, 1013 (8th Cir.2000). This
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determination was clearly within the ALJ's province. See Siemers v. Shalala, 47 F.3d 299, 302
(8th Cir. 1995); Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993).
B.

The ALJ’s RFC Assessment:

We next examine the ALJ’s RFC assessment. RFC is the most a person can do despite
that person’s limitations. 20 C.F.R. § 404.1545(a)(1). A disability claimant has the burden of
establishing his or his 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 others, and the claimant’s own descriptions of
his or his limitations.” Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); Guilliams
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. § 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).
The ALJ properly considered plaintiff’s subjective complaints, the objective medical
evidence, and the RFC assessments of the non-examining, consultative doctors. On January 8,
2007, Dr. Brad Williams completed a mental RFC assessment. Tr. 194-211. After reviewing
Plaintiff’s medical records, he concluded Plaintiff would be moderately limited with regard to
understanding, remembering, and carrying out detailed instructions; maintaining attention and
concentration for extended periods; making simple work-related decisions; completing a normal
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workday or workweek without interruptions from psychologically based symptoms; performing
at a consistent pace without an unreasonable number and length of rest periods; accepting
instructions and responding appropriately to criticism from supervisors; setting realistic goals;
and, making plans independently of others. Tr. 194-211.
On January 12, 2007, Dr Christine Slocomb reviewed Plaintiff’s medical records and
concluded Plaintiff’s physical impairment was non-severe.
After reviewing the entire medical record, we conclude that substantial evidence supports
the ALJ’s RFC assessment. As previously noted, Plaintiff did not seek out consistent medical
treatment for his mental or physical impairments during the relevant time period. The only
examination of record revealed no range of motion limitations or restrictions. As we can find
no indication in the record that any of his treating doctors limited his physical activities or found
his impairments to be disabling, the ALJ’s RFC will stand. See Raney v. Barnhart, 396 F.3d
1007, 1010 (8th Cir. 2005) (none of the claimant’s treating physicians opined the claimant was
so impaired or disabled that the claimant could not work at any job). Substantial evidence
supports the ALJ’s determination that Plaintiff maintained the residual functional capacity
(“RFC”) to perform medium work that does not involve climbing ladders, scaffolds, or ropes;
exposure to unprotected heights or dangerous equipment/machines; the operation of vehicles;
or the performance of overhead work. From a mental standpoint, Plaintiff is also limited to work
involving no more than simple math, writing, and reading; simple and non-complex instructions;
interpersonal contact with co-workers and the public that is incidental to the work performed;
the complexity of the tasks is learned and performed by rote; the work is routine and repetitive;

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the work involves few variables and little judgment; and, the supervision required is simple,
direct, and concrete.
C.

Vocational Expert’s Testimony:

Testimony from a vocational expert based on a properly-phrased hypothetical question
constitutes substantial evidence. See Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996); cf.
Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994) (when hypothetical question does not
encompass all relevant impairments, VE’s testimony does not constitute substantial evidence to
support the ALJ's decision). The ALJ’s hypothetical question needs to “include only those
impairments that the ALJ finds are substantially supported by the record as a whole.” Id. (citing
Stout v. Shalala, 988 F.2d 853, 855 (8th Cir.1993)); see also Morse v. Shalala, 32 F.3d 1228,
1230 (8th Cir.1994).
The vocational expert testified that a person of plaintiff’s age, education, and work
background with the above RFC, could still perform work as a hand packager and small products
assembler. We find substantial evidence to support the ALJ’s determination that plaintiff could
perform these jobs.
V.

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.

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DATED this 9th day of August 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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