Sligar v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on August 3, 2016. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
BOBBY W. SLIGAR
On Behalf of Bobby D. Sligar

PLAINTIFF

vs.

Civil No. 5:15-cv-05171

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Bobby W. Sligar (“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 deceased father Bobby
D. Sligar’s applications for Supplemental Security Income (“SSI”), Disability Insurance Benefits
(“DIB”), and a period of disability.
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. 6.1 Pursuant to this authority, the Court issues
this memorandum opinion and orders the entry of a final judgment in this matter.
1.

Background:
The claimant in the present action, Bobby D. Sligar, is deceased. This appeal is being

brought by the claimant’s son, Bobby W. Sligar, who is the Plaintiff in this action. Thus, all
references to the claimant are in reference to Bobby D. Sligar because this is an appeal of his denial

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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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of social security disability benefits.
As an initial matter, this case has been remanded before. On August 18, 2009, this case was
reversed and remanded for further consideration of the Polaski factors. (Tr. 515-522). The
procedural history of the claimant’s case is outlined in that Report and Recommendation and will
not be restated here. Id. After that remand, the claimant filed a second set of applications for DIB
and SSI. The first and second set of applications were consolidated, and they were denied after an
administrative hearing. (Tr. 468-478).

Thereafter, claimant filed a third application for SSI

benefits. On March 9, 2012, the SSA issued a fully favorable decision as to this third SSI application
with an onset date of August 5, 2010. (Tr. 480-491).
On August 16, 2012, upon review, the Appeals Council issued another order remanding the
first and second consolidated applications for further proceedings.2 After a hearing held on
December 14, 2012, the claimant passed away on January 1, 2013 due to a cardiac arrest and
diabetes. Plaintiff was then substituted as the proper party in this claim. (Tr. 416). On May 2, 2013,
a supplemental hearing was held during which Plaintiff and his grandfather, Bobby E. Sligar,
testified. (Tr. 440-445).
On September 18, 2013, the SSA again denied these applications for disability benefits. (Tr.
416-439). In a twenty-four page opinion, the ALJ found the claimant met the insured status
requirements of the Act through June 30, 2009. (Tr. 419, Finding 1). The ALJ found the claimant
had not engaged in Substantial Gainful Activity (“SGA”) since August 9, 2004, his alleged onset
date. (Tr. 419, Finding 2). The ALJ found the claimant had the following three severe impairments:

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This claim is from the claimant’s original onset date of August 9, 2004 through the day before
the SSA approved benefits or through August 4, 2010.

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disorder of the back, diabetes mellitus, and a mood disorder. (Tr. 419, Finding 3). The ALJ,
however, also determined the claimant’s impairments did not meet or medically equal the
requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No.
4 (“Listings”). (Tr. 419-422, Finding 4).
In this decision, the ALJ evaluated the claimant’s subjective complaints and determined his
RFC. (Tr. 422-437). First, the ALJ evaluated the claimant’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined the claimant retained
the capacity to perform the following:
After careful consideration of the entire record, I find that the claimant had the
residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except that he could frequently finger, handle and operate foot
controls. He could not climb ropes and ladders. He could occasionally climb stairs
and ramps, balance, crawl, kneel, stoop and crouch. He could frequently tolerate
temperature extremes. Additionally, he could perform simple, routine, repetitive
tasks in a setting where interpersonal contact was incidental to the work performed.
He could work under supervision that was simple, direct and concrete.
Id.
The ALJ evaluated the claimant’s Past Relevant Work (“PRW”) and found the claimant was
unable to perform any of his PRW. (Tr. 437, Finding 6). The ALJ then considered whether the
claimant retained the capacity to perform other work existing in significant numbers in the national
economy. (Tr. 437-438). The Vocational Expert (“VE”) testified at the administrative hearing
regarding this issue. Id. Based upon that testimony, the ALJ determined the claimant retained the
capacity to perform the following three light, unskilled occupations: (1) food processing worker with
9,242 such jobs in the national economy and 581 such jobs in Arkansas; (2) cutting and slicing
machine tender with 35,067 such jobs in the national economy and 967 such jobs in Arkansas; and
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(3) production worker with 118,395 such jobs in the national economy and 2,984 such jobs in
Arkansas. (Tr. 438).
Because the ALJ found the claimant retained the capacity to perform these three occupations,
the ALJ also found the claimant had not been under a disability as defined by the Act from August
9, 2004 through August 4, 2010. (Tr. 438, Finding 11). Plaintiff sought review with the Appeals
Council. Thereafter, the Appeals Council denied Plaintiff’s request for review. On July 24, 2015,
Plaintiff filed his Complaint in this case. ECF No. 1. Both Parties have filed appeal briefs and have
consented to the jurisdiction of this Court. ECF Nos. 6, 10-11. 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)
(2010); 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).

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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 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).

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3.

Discussion:
In his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by

substantial evidence in the record. ECF No. 10. Specifically, Plaintiff raises the following
arguments for reversal: (A) the ALJ erred by giving little weight to the findings of the claimant’s
treating physicians, Dr. Janelle Potts, M.D. and Dr. Gannon Randolph, M.D.; (B) the ALJ erred by
giving great weight to the findings of a non-examining medical consultant “who only reviewed some
of Claimant’s medical records after his death”; and (C) the ALJ erred by failing to fully and fairly
develop the record.3 ECF No. 10 at 7-17. The Court will address each of the arguments Plaintiff has
raised.
A.

Treating Physicians

Plaintiff claims the ALJ improperly discounted the findings of Dr. Potts and Dr. Randolph.
ECF No. 10 at 8-14. First, Dr. Potts completed a questionnaire on November 6, 2009 regarding the
claimant’s limitations. (Tr. 901-904). As noted by the ALJ, Dr. Potts reported the claimant had the
following limitations:
. . . poorly controlled diabetes, neuropathy, weakness in his legs and unsteady gait
(Exhibit 27F). She also stated that he had depression and anxiety (exhibit 27F). Dr.
Potts’s medical source statement indicated that the claimant was quite limited due to
his conditions.
(Tr. 430).
In his opinion, the ALJ discounted the findings of Dr. Potts for a variety of reasons. (Tr. 430431). First, the ALJ found Dr. Potts’s findings were not consistent with the claimant’s treatment
records. (Tr. 431). Notably, the ALJ found her findings do not “appear to take into account the
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Plaintiff includes these as one argument, but the Court will address these arguments separately.

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claimant’s lack of compliance with prescribed treatment, which is documented in the record.” (Tr.
431). This includes the claimant’s smoking habit, which he continued despite being advised to quit.
Id. Second, the ALJ found Dr. Potts’s findings did not take into account the claimant’s “drug and
alcohol use.” (Tr. 431). The ALJ’s opinion “simply describes his limitations without taking into
account such use.” Id. Third, the ALJ noted Dr. Potts was pressured into completing her report:
Dr. Potts’[s] notes indicate that the claimant and his representative applied a certain
amount of pressure on her to complete the medical source statement that has been
submitted (exhibit 25F/19). A record from October 29, 2009 showed that at first Dr.
Potts’[s] office had informed the claimant’s representative that she would not
complete it (exhibit 25F/19). Later, however, the claimant himself took the form into
the office, and only then did Dr. Potts agree to make one exception and fill it out
(exhibit 25F/19). The representative’s office then called again asking if she had
completed it (exhibit 25F/19).
(Tr. 431). As the ALJ noted, “the record from Dr. Potts’[s] office suggests that Dr Potts completed
the form in such a way to avoid having the claimant or his representative repeatedly calling her
office, which further lessens the weight that can be given to Dr. Potts’[s] medical source statement.”
Id.
Plaintiff claims these were not valid reasons for the ALJ to discount Dr. Potts’s findings.
ECF No. 10 at 8-12. Notably, Plaintiff claims it appears Dr. Potts did take into account his failure
to following his prescribed course of treatment and drug and alcohol use. Id. Plaintiff also argues
there is no indication Dr. Potts was pressured into completing this report. Id.
The Court has reviewed these arguments and finds the ALJ has still provided valid reasons
for discounting Dr. Potts’s findings. First, even if Dr. Potts did consider the claimant’s failure to
follow her prescribed course of treatment, her findings are still subject to scrutiny. Notably, the
question of disability is a question reserved for the SSA. See 20 C.F.R. § 404.1527(e)(2) (2012).
One of the major factors the ALJ considers in determining whether an individual is disabled is
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whether he or she followed a prescribed course of treatment. See, e.g., Burnside v. Apfel, 223 F.3d
840, 843-44 (8th Cir. 2010). Even if that issue was not important to Dr. Potts, it is important to the
SSA. It is black-letter law in social security that “a failure to follow a prescribed course of medical
treatment without good reason may be reason to deny benefits.” Id. Thus, it was certainly within
the ALJ’s purview to discount Dr. Potts’s findings partially because she did not consider–and could
not consider–those facts and his failure to follow the prescribed course of treatment in light of the
applicable law.
Second, as for whether Dr. Potts was pressured into completing this report, it was certainly
reasonable for the ALJ to make that assumption. Indeed, in the office note completed on October
29, 2009, Dr. Potts stated that this was “ONE EXCEPTION” and noted that “If they [claimant’s
counsel’s office] call about it again, I will NOT fill it out.” (Tr. 879). Such a notation certainly
indicates she was pressured into completing this report.
Accordingly, based upon these findings, the ALJ gave “good reasons” for discounting Dr.
Potts’s findings; as such, the ALJ’s determination to discount her findings is entitled to deference.
See Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000) (affirming the ALJ’s decision to discount
a treating physician’s opinions and recognizing “[w]hether the ALJ grants a treating physician’s
opinion substantial or little weight, the regulations provide that the ALJ must ‘always give good
reasons’ for the particular weight given to a treating physician’s evaluation”).
As for Dr. Randolph, the ALJ also considered his opinions. (Tr. 431-433). The ALJ,
however, discounted those opinions because they were dated after August 4, 2010 or after the
relevant time-period in this case. Id. Indeed, Dr. Randolph’s report is dated August 13, 2013, which
is over three years after the relevant time period. Id. Accordingly, the Court cannot find the ALJ

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erred in discounting Dr. Randolph’s findings. See, e.g., Pyland v. Apfel, 149 F.3d 873, 878 (8th Cir.
1998) (addressing the relevant time period for DIB and recognizing “evidence outside the relevant
time period cannot serve as the only support for a disability claim”).
B.

Consulting Physician

Plaintiff claims the ALJ erred by only relying on the findings of a consulting physician. ECF
No. 10 at 14-15. As Plaintiff argues, “ALJ Starr based his decision expressly on the opinion of Dr.
Amusa, a non-examining medical consultant.” Id. Upon review of this claim, however, Plaintiff is
simply incorrect. Indeed, the ALJ spent fifteen pages explaining the claimant’s RFC and outlining
his medical records in detail. There is simply no evidence to support Plaintiff’s claim that the ALJ’s
RFC determination was based only upon this consulting physician’s opinions.
C.

Record Development

Plaintiff claims the ALJ failed to develop the record. ECF No. 10 at 15. Plaintiff does not
elaborate on this claim but instead broadly argues the ALJ did not develop the record. Id. According
to well-settled law, reversal due to an ALJ’s failure to develop the record is only warranted where
such failure is unfair or prejudicial. See Haley v. Massanari,258 F.3d 742, 748 (8th Cir. 2001). A
claimant must show that the ALJ’s fuller development of the record would have made a difference
in his or her case or could have changed the outcome of his or her case. See Onstead v. Shalala, 999
F.2d 1232, 1234 (8th Cir. 1993).
In the present action, even assuming the ALJ did not fully and fairly develop the record,
Plaintiff still offers no showing of prejudice beyond vaguely claiming that the record was incomplete
or insufficient. See ECF No. 10 at 15. Thus, because there has been no showing of unfairness or
prejudice, no remand is required. See Onstead, 999 F.2d at 1234 (“absent unfairness or prejudice,
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we will not remand”).
As a final note on this issue, if Plaintiff believed any additional information was necessary
in this case, he certainly could have secured it and submitted to the ALJ. The fact this information
was not presented to the ALJ indicates it was not significant to the disability determination. See
Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995) (“Although the ALJ has a duty to develop the
record despite the claimant’s representation by counsel, the fact that Shannon’s [claimant’s] counsel
did not obtain (or, so far as we know, try to obtain) the items Shannon now complains of suggests
that these alleged treatments have only minor importance”).
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 3rd day of August 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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