Bennett v. Social Security Administration Commissioner

Filing 18

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 13, 2015. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
STEVEN RAY BENNETT

PLAINTIFF

V.

NO. 13-5149

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Steven Ray Bennett, 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).
I.

Procedural Background:
Plaintiff protectively filed his current application for SSI on March 31, 2010, alleging

an inability to work since December 18, 2008, due to tension headaches and recurrent headaches,
ruptured disc C5 and C7 surgical repair, severe pain which radiates from neck to shoulder and
arm, insomnia, knee pain, numbness in arms, anxiety attacks, lack of concentration and focus,
and fatigue. (Tr. 175-179, 195, 208). An administrative hearing was held on January 9, 2012,
at which Plaintiff appeared with counsel, and he and his wife testified. (Tr. 28-61).
By written decision dated February 8, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe - status post

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cervical fusion and status/post right knee surgery. (Tr. 15). 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. (Tr. 15). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to:
perform light work as defined in 20 CFR 416.967(b) as occasionally lift
and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand
and/or walk at least 6 hours out of an 8 hour work day, and sit at least 6
hours out of an 8 hour work day, all with normal breaks. He must avoid
work above shoulder level.
(Tr. 16). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would be able to perform his past relevant work as an electrical
assembler. (Tr. 23).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on May 16, 2013. (Tr. 1-5). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 7). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 16, 17).
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.
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. 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

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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),
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)(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 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

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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.
III.

Discussion:
Plaintiff raises the following arguments in this matter: 1) The ALJ erred by not

developing the record fully and fairly; 2) The ALJ erred in his credibility findings; 3) The ALJ
erred in his RFC determination; and 4) The ALJ erred in determining Plaintiff could perform his
past relevant work. (Doc. 16).
A.

Credibility Findings:

Plaintiff argues that the ALJ wrongfully compared Plaintiff’s subjective allegations to
his RFC, when he stated that Plaintiff’s allegations were “not credible to the extent they are
inconsistent with the above residual functional capacity assessment.” (Tr. 18). It is true that in
his opinion, the ALJ found that Plaintiff’s statements concerning the intensity, persistence and
limiting effects of the symptoms were “not credible to the extent they are inconsistent with the
above residual functional capacity assessment.” (Tr. 18). The use of this language may indicate
that the ALJ determined Plaintiff’s RFC prior to making his credibility determination. This is
similar to the language used in Bjornson v. Astrue, 671 F.3d 640, 644 (7th Cir. 2012), where the
Court was critical of the use of this “boilerplate” language. In Bjornson, the Court stated that the
government’s brief described this passage as a “template,” by which it means a “passage drafted
by the Social Security Administration for insertion into any administrative law judge’s opinion

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to which it pertains.” Id. at 644-645. The Court further elaborated:
One problem with the boilerplate is that the assessment of the claimant’s
“residual functional capacity” (the bureaucratic term for ability to work)
comes later in the administrative law judge’s opinion, not “above” above is just the foreshadowed conclusion of that later assessment. A
deeper problem is that the assessment of a claimant’s ability to work will
often (and in the present case) depend heavily on the credibility of her
statements concerning the “intensity, persistence and limiting effects” of
her symptoms, but the passage implies that ability to work is determined
first and is then used to determine the claimant’s credibility. That gets
things backwards. The administrative law judge based his conclusion that
Bjornson can do sedentary work on his determination that she was
exaggerating the severity of her headaches. Doubts about credibility were
thus critical to his assessment of ability to work, yet the boilerplate
implies that the determination of credibility is deferred until ability to
work is assessed without regard to credibility, even though it often can’t
be. ...
The Social Security Administration had better take a close look at the
utility and intelligibility of its “templates.”
Id. at 645-646. The Bjornson Court ultimately reversed and remanded the matter. Id. at 648.
Cases that have subsequently considered the Bjornson case have distinguished the facts of their
cases. In Bishop v. Commissioner of Social Security, No. 14-1042, 2014 WL 4347190 (4th Cir.,
Sept. 3, 2014), the Fourth Circuit noted that the ALJ’s language was similar to that in Bjornson,
but found that the ALJ cited “specific contradictory testimony and evidence in analyzing
Plaintiff’s credibility and averred that the entire record had been reviewed. Given that this case
is not one of exceptional circumstances, see Eldeco, Inc. v. NLRB, 132 F.3d 1007, 1011 (4th Cir.
1997), we uphold the ALJ’s credibility determination”1 Bishop, 2014 WL 4347190 at *2.
In Romero v. Colvin, 563 Fed. Appx. 618 (10th Cir. 2014), the Tenth Circuit declined to

1

In Eldeco, the 4th Circuit stated that exceptional circumstances included cases where a credibility determination
is unreasonable, contradicts other findings of fact, or is based on an inadequate reason or no reason at all. Id. 132
F.3d at 1011, quoting NLRB v. McCullough Environmental Services, Inc., 5 F.3d 923, 928 (5th Cir. 1993).

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reverse the case on the ground that the ALJ used the same boilerplate language as was used in
Bjornson, stating that the “use of ... boilerplate is problematic only when it appears ‘in the
absence of a more thorough analysis.’” Romero 563 Fed. Appx. at 620-621, quoting KeyesZachary v.Astrue, 695 F.3d 1156, 1170 (10th Cir. 2012). The Court noted that the ALJ discussed
various credibility factors explicitly.
Finally, in Scott v. Colvin, No. 4:12-CV-01569, 2013 WL 6047555 (S.D.Tex., Nov. 14,
2013), the Court was presented with the same argument regarding the use of the boilerplate
language, and the application of Bjornson. The Court determined that the ALJ provided more
than “mere boilerplate” language, and listed several activities that he found contradicted
Plaintiff’s subjective limitations. Scott. 2013 WL 6047555 at *11-12. The Court concluded that
the ALJ properly detailed the specific evidence that led him to find that Plaintiff’s testimony was
not fully credible and that he did not err in his credibility finding and subsequent RFC
determination. The Court further stated that there was no evidence whatsoever that the ALJ first
pre-determined Plaintiff’s RFC before evaluating the credibility of Plaintiff’s testimony. “‘In
fact, the language of the decision and the hearing transcript conclusively show that the ALJ
considered all of the evidence in the record, including Scott’s testimony. Thus, the ALJ
evaluated Scott’s credibility against the level of disability that she claimed, not the level that the
ALJ ‘pre-determined.’” Id. at *12.
The Eighth Circuit in Pearsall v. Massanari, 274 F.3d 1211 (8th Cir. 2001), sets forth the
general proposition that before determining a claimant’s RFC, the ALJ “first must evaluate the
claimant’s credibility.” Id. at 1218. However, the Court in Pearsall was not presented with the
issues that are now before the Court in this case.

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In the ALJ’s decision now before the Court, the ALJ noted that after Plaintiff’s right knee
surgery in 1997, he was able to return to work. (Tr. 18). He also addressed the fact that after
Plaintiff’s anterior cervical fusion with iliac crest graft, tricortical with plating, Plaintiff was
observed to be doing very well by Dr. D. Luke Knox, the surgeon, who allowed Plaintiff to
return to work with limitations of no lifting over 30 pounds and avoid stooping and bending and
persistent looking up. (Tr. 18, 275). The ALJ discussed the fact that in 2000, Dr. Knox gave
Plaintiff the okay to return to work on a full duty basis. (Tr. 19, 271). The ALJ also addressed
the fact that in 2006, Dr. Mohammed Quadeer conducted a consultative examination and found
that the cervical spine was non-tender with limited range of motion associated with pain and
muscle spasms, that strength in the upper and lower limbs was 5/5 and there was no atrophy of
the muscles of the upper and lower limbs observed by the doctor. (Tr. 19, 352). Although Dr.
Quadeer observed some sensory changes present in the left upper limb, with decreased sensation
present in the C5-C6, C7 and T1 distribution, and diminished sensation in the right upper limb
in the palm of the hand and in the C5-7 distribution, Plaintiff’s finger-to-nose and heel-to-shin
rests were normal. (Tr. 19). Plaintiff’s gait was safe and stable. (Tr. 19, 352). Dr. Quadeer also
found Plaintiff’s grip strength to be 5/5 bilaterally strong and firm and he was able to do both
gross and fine manipulations with his hands, and fingertip to thumb opposition was adequate.
(Tr. 19). This was also found to be the case on June 10, 2010, when Dr. Quadeer performed
another consultative examination. (Tr. 20-21, 362).
The ALJ discussed the fact that Plaintiff’s daily activities were described as fairly
limited. (Tr. 21). However, he found that Plaintiff’s limited daily activities could not be
objectively verified with any reasonable degree of certainty, and that even if they were so

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limited, it was difficult to attribute that degree of limitation to Plaintiff’s medical condition, as
opposed to other reasons, in view of the relatively weak medical evidence and other factors
discussed in his decision. (Tr. 21). The ALJ found that overall, Plaintiff’s reported limited daily
activities were outweighed by other factors discussed in the decision. (Tr. 21). He also noted that
none of the physical examinations revealed muscle atrophy that would be shown if Plaintiff was
really unable to use his left arm and was required to use his right arm to support his left arm. (Tr.
21). Finally, the ALJ found that Plaintiff had not generally received the type of medical
treatment one would expect for a totally disabled individual, as the only follow-up treatment
Plaintiff presented was in the form of a consultative examination by Dr. Clemens that Plaintiff’s
attorney scheduled for evidence in this case. (Tr. 21).
As was found in Bishop, the Court believes in this case that the ALJ cited to specific
contradictory testimony and evidence in analyzing Plaintiff’s credibility and reviewed the entire
record. The fact that the ALJ used “boilerplate” language is not a problem in this case, because
the ALJ conducted a thorough analysis, see Romero, 563 Fed. Appx. at 620-621; nor was there
evidence indicating that the ALJ first pre-determined Plaintiff’s RFC before evaluating the
credibility of Plaintiff’s testimony. See Scott. 2013 WL 6047555 at *12.
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s credibility findings.
B.

RFC Determination:

Plaintiff argues that the record supports a more limited capability than that determined
by the ALJ’s RFC. 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

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medical records, observations of treating physicians and others, and the claimant’s own
descriptions of his limitations. Guilliams v. Barnhart, 393 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.
In this case, the ALJ discussed all of the relevant medical records, including those that
pre-date the application date. The ALJ addressed the examination report prepared by Dr. R.
Dale Clemens, who saw Plaintiff on October 9, 2008. (Tr. 19-20). He gave very little weight to
Dr. Clemens’ opinion, based upon the fact that he saw Plaintiff only one time and that the
limitations Dr. Clemens gave Plaintiff were not supported by the medical evidence of his own
examination notes. (Tr. 20).
The ALJ gave some weight to the opinions of the physicians of the state agency, and
gave Plaintiff the benefit of doubt that he should have some restrictions to avoid work above
shoulder level. (Tr. 21). The ALJ further noted that no functional restrictions had been placed
on Plaintiff’s activities by his treating physicians that would preclude light work activity set
forth in the ALJ’s RFC determination. (Tr. 22).
Based upon the foregoing, the Court finds there is substantial evidence to support the

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ALJ’s RFC determination and the weight he gave to the various opinions of the physicians.
C.

Failure to Fully and Fairly Develop the Record:

Plaintiff argues that the ALJ failed to fully and fairly develop the record regarding
Plaintiff’s mental impairment. 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-bycase 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).
In this case, the ALJ addressed the Dr. Sally Varghese’s Psychiatric Review Technique
Report, dated July 19, 2010, wherein Dr. Varghese noted that treatment for a mental impairment

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had not been recommended or received. (Tr. 380). She reported that a careful review of all the
evidence indicated there were no work-related functional limitations resulting from a possible
mental impairment, and that there was no discrete mental impairment. (Tr. 380). She concluded
that further development of the possible mental impairment was curtailed, and this was affirmed
by Carolyn Goodrich, Ph.D., in a Psychiatric Technique Report dated September 18, 2010. (Tr.
390).
The ALJ also discussed the fact that although Dr. Clemens noted that Plaintiff exhibited
no unusual anxiety or evidence of depression (Tr. 20), he then found Plaintiff had marked
limitations in certain areas related to Plaintiff’s alleged mental impairment. Based upon the fact
that Plaintiff’s mental functional ability is outside the area of expertise of Dr. Clemens, and the
fact that Dr. Clemens’ findings were internally inconsistent, the ALJ gave Dr. Clemens’ opinion
regarding Plaintiff’s mental impairment very little weight. (Tr. 20).
The Court finds, based upon the foregoing, that the existing medical sources contained
sufficient evidence for the ALJ to make a determination regarding Plaintiff’s mental impairment
and that the ALJ did not fail to fully develop the record.
D.

Whether Plaintiff Could Perform His Past Relevant Work:

Plaintiff argues that the RFC finding lacked many necessary limitations and that the ALJ
never ascertained the specific “physical and mental demands” of his past work as an electrical
assembler.
The ALJ presented the following hypothetical question to the VE:
Q: Say we had an individual who’s the same age, education, vocational
history as this claimant, is limited to light work as described by the
Commissioner. That is could occasionally lift and carry twenty pounds,
frequently lift and carry ten pounds, stand and/or walk at least six hours
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of an eight-hour work day and sit at least six hours of an eight-hour work
day all with normal breaks. Let’s say this individual also needed to avoid
work (INAUDIBLEE). Could that individual do any of the work that the
claimant’s done in the past, either of those jobs?
A. Judge, he would be able to do the electrical assembly as it’s normally
done, not as he performed it.
Q: That doesn’t require overhead, over shoulder work?
A. I’ve visited there, and I don’t think it does. I don’t remember seeing
anything if it did.
Q. The job in general doesn’t require that?
A. No sir.
(Tr. 57).
Although the position of electrical assembler requires frequent reaching, the VE rebutted
this possible conflict by explaining that he visited and did not believe the position required
overhead shoulder work. See Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007).
The Court finds that the hypothetical 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
response to the hypothetical question posed by the ALJ constitutes substantial evidence
supporting the ALJ’s conclusion that Plaintiff’s impairments did not preclude him from
performing his past relevant work as an electrical assembler. Pickney v. Chater, 96 F.3d 294,
296 (8th Cir. 1996)(testimony from vocational expert based on properly phrased hypothetical
question constitutes substantial evidence).
IV.

Conclusion:
Accordingly, having carefully reviewed the record, the Court finds substantial evidence
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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 prejudice.
IT IS SO ORDERED this 13th day of March, 2015.

/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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