Adrian v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on April 30, 2015. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
SCOTT ADRIAN

PLAINTIFF

V.

NO. 14-5018

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

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Scott Adrian, 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 claims for a period of disability and disability insurance benefits (DIB) and
supplemental security income (SSI) under the provisions of Titles II and 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 applications for DIB and SSI on May 17, 2011,

alleging an inability to work since November 10, 2009, due to depression, bipolar disorder, and
seizures. (Tr. 108-121, 147, 152). An administrative hearing was held on September 26, 2012,
at which Plaintiff appeared with counsel and testified. (Tr. 30-54).
By written decision dated October 23, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe - personality
disorder, not otherwise specified, and rule out polysubstance dependence. (20 C.F.R.
404.1520(c) and 416.920(c)). (Tr. 16). However, after reviewing all of the evidence presented,

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the ALJ determined that Plaintiff’s impairments did not meet or equal the level of severity of any
impairments listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No.
4. (Tr. 16). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform a full range of work at all exertional levels but with the
following nonexertional limitations: the claimant can perform unskilled,
standardized work, which is simple, routine, and repetitive in nature;
supervision required is simple, direct, and concrete; and no contact with
the general public, but occasional contact with supervisors and
coworkers.
(Tr. 19). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff was unable to perform his past relevant work, but that there were
other jobs Plaintiff would be able to perform, such as hand packer and production assembler.
(Tr. 23-24).
Plaintiff requested a review of the hearing decision by the Appeals Council, which
denied that request on November 15, 2013. (Tr. 1-4). 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. 11, 12).
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
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.
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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
doing past relevant work; and (5) whether the claimant was able to perform other work in the

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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 issues in this matter: 1) The ALJ’s findings are not based

on substantial evidence; 2) The ALJ erred in discounting Plaintiff’s subjective complaints; 3)
The ALJ erred in evaluating Dr. McInroe’s opinion; and 4) The ALJ erred in his findings of
severe impairments. (Doc. 11).
A.

Severe Impairments:

Plaintiff argues that the ALJ erred in not finding additional impairments as severe
impairments.
In his opinion, the ALJ noted the fact that on October 9, 2006, when Kevin Whisman,
Psy.D., performed a Psychological Evaluation, he reported that during the interview, Plaintiff
alleged a bipolar disorder, but he believed the symptom presentation as determined through selfreport was more likely characteristic of an underlying personality disorder, and that the
differential diagnosis was complicated by Plaintiff’s reported history of illicit substance use. (Tr.
21, 258). Dr. Whisman diagnosed Plaintiff as follows:
Axis I:
Axis II:
Axis III:
Axis IV:
Axis V:

r/o Polysubstance Dependence
Personality Disorder NOS with Borderline features
(Primary)
Client reported pain
Occupational problems
GAF - 58 current

(Tr. 258).
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When Ronald E. McInroe, Psy.D., evaluated Plaintiff on July 6, 2011, he indicated that
Plaintiff was a poor historian and had difficulty in recalling events in a coherent and
chronological order. (Tr. 276). Dr. McInroe reported that according to information provided by
the Social Security Administration, Plaintiff had previously been evaluated and treated through
the Green Oaks Behavioral Healthcare Services and was prescribed Valproic Acid, Wellbutrin,
and Klonopin, and appeared to have been given a diagnosis of Bipolar Disorder. (Tr. 279). Dr.
McInroe gave Plaintiff the following diagnosis:
Axis I:

Axis II:
Axis V:
(Tr. 279).

Bipolar II Disorder, by history
Generalized Anxiety Disorder
Polysubstance Abuse, by history
Personality Disorder, NOS (Antisocial/Borderline)
GAF - 60

Dr. McInroe opined that Plaintiff demonstrated limitation in the ability to

communicate and interact in a socially adequate or stable manner and may have difficulty with
sustained persistence in completing tasks because of his irritability of mood and personality
characteristics. (Tr. 280). As a result, Dr. McInroe opined that Plaintiff would demonstrate
deficits in the ability to complete basic work related tasks within an acceptable time frame. (Tr.
280).
On August 2, 2011, non-examining consultant, Christal Janssen, Ph.D., completed a
Mental RFC Assessment and Psychiatric Review Technique Form. (Tr. 288, 292). She opined
that although Plaintiff may have some problems with persistence and pace, he was able to
perform at least simple/repetitive work with incidental interpersonal contact and direct/concrete
supervision (unskilled). (Tr. 290). She found that Plaintiff had mild degree of limitation in
activities of daily living and moderate degree of limitation in maintaining social functioning and

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in maintaining concentration, persistence or pace, and had no episodes of decompensation, each
of extended duration. (Tr. 302). 1 It is also noteworthy that Plaintiff indicated that his seizures
only occurred when he was asleep. (Tr. 38, 171).
At Step Two of the sequential analysis, the ALJ is required to determine whether a
claimant's impairments are severe. See 20 C .F.R. § 404.1520(c). To be severe, an impairment
only needs to have more than a minimal impact on a claimant's ability to perform work-related
activities. See Social Security Ruling 96-3p. The Step Two requirement is only a threshold test
so the claimant's burden is minimal and does not require a showing that the impairment is
disabling in nature. See Brown v. Yuckert, 482 U.S. 137, 153-54 (1987). The claimant,
however, has the burden of proof of showing he suffers from a medically-severe impairment at
Step Two. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.2000).
The Court does not believe Dr. McInroe’s diagnosis of “Bipolar Disorder, by History”
requires the ALJ to conclude that bipolar disorder was a severe impairment. In any event, any
omission of a severe impairment is harmless in this case. The ALJ clearly considered all of
Plaintiff’s mental impairments during the relevant time period, and where the ALJ finds at least
one “severe” impairment and proceeds to assess a claimant’s RFC base on all alleged
impairments, any error in failing to identify particular impairment as “severe” at step two is
harmless. See Swartz v. Barnhart, 188 F. App'x 361, 368 (6th Cir.2006); Elmore v. Astrue, 2012
WL 1085487 *12 (E.D. Mo. March 5, 2012); see also 20 C.F.R. § 416.945(a)(2) (in assessing
RFC, ALJ must consider “all of [a claimant's] medically determinable impairments ..., including

1

In his decision, the ALJ referred to an October 27, 2011 report completed by Dr. Brad Williams, Ph.D., another
State mental health expert, who he contends reviewed and affirmed Dr. Janssen’s findings and conclusions.
However, said report could not be found in the transcript.

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... impairments that are not ‘severe’ ”).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s conclusions relating to Plaintiff’s severe impairments.
B.

Credibility Analysis:

Plaintiff argues that the ALJ erred in discounting Plaintiff’s credibility when he found
there was little objective evidence of him seeking treatment and following up with treatment.
In his decision, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that Plaintiff’s statements concerning
the intensity, persistence and limiting effects of the symptoms were not credible to the extent
they were inconsistent with his assessment. The ALJ then discussed the fact that there was very
little objective evidence to support the fact that Plaintiff sought and obtained ongoing treatment
for his alleged mental impairments from any provider. (Tr. 22). He noted that there was no
evidence presented that Plaintiff sought or obtained treatment in the 6 years that lapsed between
2004 and November 2009, when he alleged his disability began, and that there was no evidence
in Plaintiff’s file that he sought or obtained treatment in the 2 ½ years that lapsed between
Plaintiff’s alleged onset date and the date of his hearing on September 26, 2012. (Tr. 22). The
ALJ also addressed the fact that when Plaintiff was instructed to follow up on certain occasions,
he failed to do so. (Tr. 23).
The Court recognizes that Plaintiff alleges he was unable to afford treatment, and that
he testified that he had tried to go to a reduced fee clinic, but was unable to afford the $27 per
visit. This is a factor that can be considered when Plaintiff does not follow a recommended
course of treatment. However, in this case, the ALJ discounted Plaintiff’s credibility for other

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reasons as well. He noted that none of the doctors who saw Plaintiff offered an opinion that he
was disabled or made any statement or recommendation that he was unable to work at a
substantial gainful activity level. In fact, Plaintiff performed substantial gainful activity level
work from May of 2009 until November of 2009, which detracts from Plaintiff’s credibility.
The Court also notes there are some inconsistencies in Plaintiff’s statements. In Dr.
Whisman’s report dated October 9, 2006, Plaintiff reported that his longest stint of employment
was for nearly three months. (Tr. 257). In his Disability Report - Adult dated June 14, 2011,
Plaintiff indicated that he performed the job of dishwasher/cook at a restaurant from 1996-2007
and as a stocker/cashier from 1996-2010. (Tr. 153). On July 6, 2011, Plaintiff reported to Dr.
McInroe that the longest job he ever held was for approximately one year, loading trucks. (Tr.
276). On October 9, 2006, Plaintiff reported to Dr. Whisman that his last use of any drug was
“about a year ago.” (Tr. 257). On July 6, 2011, Plaintiff reported to Dr. McInroe that until
recently he was using marijuana two or three times per week. (Tr. 278). At the hearing held on
September 26, 2012, Plaintiff testified that he had not used marijuana for at least two years. (Tr.
40).
Based upon the foregoing, as well as for those reasons given in Defendant’s well-stated
brief, the Court finds there is substantial evidence to support the ALJ’s credibility analysis.
C.

RFC Determination and Weight Given to Physician’s Opinion:

Plaintiff argues that based upon the evidence, the ALJ should have found that Plaintiff
would not be able to interact with co-workers and supervisors on a consistent basis, and should
have given Dr. McInroe’s opinion greater weight.
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §

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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. 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 his decision, the ALJ considered and evaluated all of the medical reports, and gave
significant weight to the opinion of Dr. Whisman, as he had the opportunity to actually examine
the Plaintiff and based his findings and conclusions upon that assessment. (Tr. 23). The ALJ
believed Dr. Whisman’s assessment was most consistent with the medical evidence of record.
The ALJ great weight to the opinion of Dr. Tad Morgan, who conducted a General Physical
Examination of Plaintiff on July 27, 2011, and found Plaintiff had no limitations. (Tr. 282-286).
The ALJ stated that Dr. Morgan’s findings and conclusions were based upon his actual physical
examination of Plaintiff and were consistent with the other medical evidence. (Tr. 23). The ALJ
gave some weight to the opinion of Dr. McInroe, where his opinion was consistent with Dr.
Whisman and the evidence as a whole. (Tr. 23). Finally, the ALJ gave some weight to the State
psychological experts where their opinions were also consistent with Dr. Whisman and the

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available evidence. (Tr. 23). The fact that Plaintiff was able to perform substantial gainful
activity in 2009, without any treatment or medication, supports the ALJ’s RFC determination.
In addition, the Court believes the ALJ’s RFC determination takes into consideration Dr.
McInroe’s opinion that Plaintiff’s ability to interact socially and adapt to his environment would
be within a socially restricted environment, as it provides that there should be no contact with
the general public, but occasional contact with supervisors and coworkers.
Based upon the foregoing, the Court finds there is substantial evidence to support the
weight the ALJ gave the various opinions of the physicians and his RFC determination.
D.

Hypothetical Question to the VE:

At the hearing, the ALJ posed the following hypothetical question to the VE:
Q: ... In hypothetical number one I want you to assume a hypothetical
individual possessing the same age, education and work experience
which Mr. Adrian possesses. Further assume that this hypothetical
individual experiences no limitations sitting, standing, walking and
lifting. In fact, the individual’s only limitations are nonexertional in
nature. This person can perform unskilled standardized work with involving few, if any , changes. This work is simple, routine and
repetitive in nature with one or two-step instructions. This work would
be done alone and not in collaboration with others or in a team. This
person requires supervision, which is simple, direct and concrete. And
this person has no contact with the general public, but does have ability
to maintain occasional contact with coworkers and supervisors. Do you
have those variables?
A. I do.
Q. Could that hypothetical individual perform the claimant’s past job?
A. No, sir. Semi-skilled work.
Q. Okay. Okay. Are there any jobs that hypothetical individual could perform?
A. Yes, sir. ...I’ll lead off with a medium one. ...Hand packer or packager is one
of these kinds of jobs...Another example, production assembler...these are light
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and unskilled...
(Tr. 51-52). 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
responses to the hypothetical questions posed by the ALJ constitutes substantial evidence
supporting the ALJ’s conclusion that Plaintiff’s impairments did not preclude him from
performing the jobs of hand packer and production 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).
E.

Whether Substantial Evidence Supports the ALJ’s Findings:

Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s findings.
IV.

Conclusion:
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 prejudice.
IT IS SO ORDERED this 30th day of April, 2015.

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

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