Strawhacker v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on August 22, 2017. (rg)

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

ROBIN L. STRAWHACKER

PLAINTIFF

v.

CIVIL NO. 16-5139

NANCY A. BERRYHILL,
Acting Commissioner, Social Security Administration 1

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Robin L. Strawhacker, 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 her 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 received SSI benefits based on disability as a child. (ECF No. 10, pp. 21, 70).

Plaintiff’s eligibility for receipt of SSI benefits was reexamined under the rules for determining
disability in adults when she attained the age of eighteen (18). (ECF No. 10, pp. 21, 68-72).
On June 12, 2013, the Commissioner determined Plaintiff was no longer disabled as of June 1,

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs
to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
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2013. (ECF No. 10, pp. 68-72). A disability hearing officer upheld the ruling following a
hearing on January 3, 2014. (ECF No. 10, pp. 80-103).
Thereafter, Plaintiff requested an administrative hearing and this hearing request was
granted. (ECF No. 10, pp. 105-44). Plaintiff’s administrative hearing was held on October 15,
2014, in Fayetteville, Arkansas (ECF No. 10, pp. 40-67). Plaintiff appeared in person and
without attorney counsel. Id. Plaintiff, Plaintiff’s grandmother and former guardian Elda Jean
Faulkner, and Vocational Expert (“VE”) Larry Seifert testified at this hearing. Id. At the time
of this hearing, Plaintiff was nineteen (19) years old, which is defined as a “younger person”
under 20 C.F.R. § 416.963(c). As for her level of education, at the time of the hearing Plaintiff
was still a senior in high school due to the amount of school she missed before her leukemia
entered remission. (ECF No. 10, pp. 44-45).
After this hearing, on January 14, 2015, the ALJ entered an unfavorable decision
affirming cessation of Plaintiff’s SSI benefits. (ECF No. 10, pp. 18-32). In this decision, the
ALJ found Plaintiff attained the age of eighteen (18) on February 15, 2013 and was eligible
for SSI benefits as a child for the month preceding the month in which she attained age eighteen
(18) and that she was found no longer disabled as of June 1, 2013, after reevaluation of
disability under the rules for adults who file new applications. (ECF No. 10, p. 23, Finding 1).
The ALJ determined Plaintiff had the following severe impairments: leukemia in remission;
recurrent sinusitis; amnestic disorder; cognitive disorder; and, depression. (ECF No. 10, p. 23,
Finding 2). Despite being severe, the ALJ determined these impairments did not meet or
medically equal the requirements of any of the Listings of Impairments in Appendix 1 to
Subpart P of Part 404 (“Listings”). (ECF No. 10, pp. 23-26, Finding 3).

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The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (ECF No.
10, pp. 26-31, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and found
her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff
retained the RFC to perform “light work as defined in 20 C.F.R. § 416.967(b) except that she
can only do work limited to simple, routine and repetitive tasks involving only simple, work
related decisions with few, if any, workplace changes and no more than incidental contact with
coworkers, supervisors, and the general public.” Id. The ALJ then determined Plaintiff had no
Past Relevant Work (“PRW”). (ECF No. 10, p. 31, Finding 5). Based on Plaintiff’s age,
education, work experience, and RFC, the ALJ determined there were jobs existing in
significant numbers in the national economy Plaintiff could perform, such as an office helper,
a mail room sorter, and a merchandise marker. (ECF No. 10, pp. 31-32, Finding 9). The ALJ
therefore determined Plaintiff’s disability ended on June 1, 2013, and that Plaintiff had not
become disabled again since that date. (ECF No. 10, p. 32, Finding 10).
Thereafter, Plaintiff requested a review by the Appeals Council (ECF. No. 10, p. 17).
The Appeals Council denied this request on April 19, 2016. (ECF No. 10, pp. 6-11). On June
14, 2016, Plaintiff filed the present appeal with this Court. (ECF No. 1). The parties consented
to the jurisdiction of this Court on June 28, 2016. (ECF No. 6). This case is now ready for
decision.
II.

Applicable Law:
This Court’s role is to determine whether substantial evidence supports the

Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th

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Cir. 2011). We must affirm the ALJ’s decision if the record contains substantial evidence to
support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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.
Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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, we must affirm the ALJ’s decision. Id.
A claimant for Social Security disability benefits has the burden of proving her
disability by establishing a physical or mental disability that has lasted at least one year and
that prevents her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274
F.3d 1211, 1217 (8th Cir. 2001); See also 42 U.S.C. § 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. § 1382c(a)(3)(D). A Plaintiff must
show that her disability, not simply her impairment, has lasted for at least twelve consecutive
months.
The Commissioner’s regulations require her 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 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

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national economy given his age, education, and experience. See 20 C.F.R. § 416.920(a)(4).
Only if she reaches the final stage does the fact finder consider Plaintiff’s age, education, and
work experience in light of his residual functional capacity. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d
504, 505 (8th Cir. 2000); 20 C.F.R. § 416.920(a)(4)(v).
III.

Discussion:
Plaintiff raises three issues on appeal: 1) Substantial evidence does not support the

ALJ’s determination that Plaintiff did not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments; 2) Substantial evidence does not
support the ALJ’s RFC determination; and 3) The hypothetical question posed to the VE and
adopted by the ALJ failed to account for all of Plaintiff’s limitations.
A.

The Listings

The claimant bears the burden of proving her impairment meets or equals the criteria
for a specific listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). "For a claimant
to show that his impairment matches a listing, it must meet all of the specified medical criteria."
Brown ex rel. Williams v. Barnhart, 388 F.3d 1150, 1152 (8th Cir. 2004)(internal quotations
and citation omitted). Where the claimant suffers from an unlisted impairment, the ALJ must
compare the claimant’s impairment with an analogous listed impairment. 20 C.F.R. § 416.926.
Furthermore, the question is whether the ALJ "consider[ed] evidence of a listed impairment
and concluded that there was no showing on th[e] record that the claimant's impairments . . .
m[et] or are equivalent to any of the listed impairments." Karlix v. Barnhart, 457 F.3d 742, 746
(8th Cir. 2006) (internal quotations omitted). While it is preferable an ALJ address a specific
listing, the failure to do so is not reversible error if the record supports the overall conclusion.

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See Pepper ex rel. Gardner v. Barnhart, 342 F.3d, 853, 855 (8th Cir. 2004), Dunahoo v. Apfel,
241 F.3d 1033, 1037 (8th Cir. 2001); see also Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir.
2011) (“There is no error when an ALJ fails to explain why an impairment does not equal one
of the listed impairments as long as the overall conclusion is supported by the record.”).
First, Plaintiff contends her impairments meet or medically equal the criteria of Listing
3.02(A). Listing 3.02(A) requires a forced expiratory volume (FEV1) value less than or equal
to the value specified in Table I of the listing corresponding to Plaintiff’s height without shoes.
20 C.F.R. pt. 404, Subpt. P, app. 1, § 3.02(A). Plaintiff does not cite to nor does the record
contain recent spirometry reports containing an FEV1 value. Plaintiff contends that the lack of
such a record amounts to a failure to fully and fairly develop the record by the ALJ. The ALJ
owes a duty to a claimant to develop the record fully and fairly to ensure his decision is an
informed decision based on sufficient facts. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th
Cir. 2004). However, the ALJ is not required to function as the claimant’s substitute counsel,
but only to develop a reasonably complete record. Whitman v. Colvin, 762 F.3d 701, 707 (8th
Cir. 2014) (quoting Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994). While “[a]n ALJ
should recontact a treating or consulting physician if a critical issue is undeveloped,” “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.”
Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (quotation, alteration, and citation
omitted). Although the ALJ determined Plaintiff’s recurrent sinusitis was a severe impairment,
the record shows the impairment did not result in more than mild or moderate respiratory
impairment. For example, Plaintiff visited Dr. Payton on April 2, 2013, for sinus pressure, but
Dr. Payton made no objective findings regarding Plaintiff’s respiration. (ECF No. 10, p. 955).

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Dr. Payton did make objective findings regarding Plaintiff’s respiration on November 28,
2012, and March 7, 2013, when Plaintiff complained of sinus problems, but Dr. Payton’s
physical examination revealed only normal findings in this area. (ECF No. 10, pp. 812, 819).
Although the record does not contain a recent spirometry report, Plaintiff regularly followedup with her healthcare providers and we can assume Plaintiff’s healthcare providers would
have conducted such testing were it necessary for her continued care.
The ALJ had before him the evaluations and treatment records of numerous healthcare
providers which provided sufficient evidence for the ALJ to make an informed decision
regarding Plaintiff’s alleged impairments. The Court also notes that other evidence in the
record, including Plaintiff’s own statements, constituted evidence regarding her limitations,
and that the existing medical sources contained sufficient evidence for the ALJ to make a
determination regarding whether Plaintiff’s impairments met or medically equaled the severity
of Listing 3.02(A). The Court therefore finds the ALJ satisfied his duty to fully and fairly
develop the record and that substantial evidence supports the ALJ’s determination with regard
to Listing 3.02(A).
Next, Plaintiff argues her impairments meet or medically equal the criteria of Listings
12.02, 12.04, and 12.07. The ALJ considered evidence of Plaintiff’s listed mental impairments
and concluded that there was no showing on the record that Plaintiff’s impairments met or are
equivalent to any of the listed impairments. Listings 12.02, 12.04, and 12.07 share the same
paragraph “B” criteria. 20 C.F.R. pt. 404, Subpt. P, app. 1, §§ 12.02, 12.04, 12.07. For Listings
12.02 and 12.04, Plaintiff could alternatively satisfy the paragraph “C” criteria. Id. To meet the
paragraph “B” criteria, Plaintiff’s impairments must result in at least two of the following:
marked restriction of activities of daily living; marked difficulties in maintaining social

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functioning; marked difficulties in maintaining concentration, persistence, or pace, or; repeated
episodes of decompensation, each of extended duration. Id.
Plaintiff does not meet the paragraph “B” criteria of listings 12.02, 12.04, or 12.07. At
the outset, this Court notes that, as to periods of decompensation, the record does not indicate
Plaintiff’s impairments have caused any episodes of decompensation of extended duration, in
recent years. The ALJ determined Plaintiff’s impairments resulted in only a mild restriction in
Plaintiff’s activities of daily living. The ALJ accepted Plaintiff’s function report, completed by
Hiedi Oliver, which indicated she had some difficulty with personal care and personal chores,
but that she was able to prepare simple meals, go out alone, and shop in stores. (ECF No. 10,
pp. 24, 218-25). The ALJ also noted the remarks of Kim Oliver, Plaintiff’s teacher, on her
teacher questionnaire. (ECF No. 10, pp. 24, 195-202). Ms. Oliver indicated Plaintiff’s reading
and math abilities were appropriate for her level and that she did not receive special education
services. (ECF No. 10, p. 195). Ms. Oliver gave Plaintiff high marks in the area of acquiring
and using information and noted Plaintiff “is completely capable of all these skills,” and
described Plaintiff as “a bright young lady.” (ECF No. 10, p. 196).
The ALJ determined Plaintiff had moderate difficulties in social functioning, based in
part on Ms. Oliver’s report but also based on Plaintiff’s function report, completed by Elda
Faulkner, which indicated Plaintiff kept to herself and became easily agitated. (ECF No. 10,
pp. 24, 172-79). The ALJ also accepted the results of a Behavior Assessment System for
Children – Second Edition (BASC-II) test administered by Dr. McInroe, which indicated
Plaintiff had moderate limitation in this area. (ECF No. 10, p. 24, pp. 1129-133). Ms. Oliver
indicated Plaintiff had no problem attending and completing tasks. (ECF No. 10, p. 197). Ms.
Oliver further indicated Plaintiff was “very immature” and that “other students have trouble

8

relating to her.” (ECF No. 10, p. 198). Nevertheless, Ms. Oliver described Plaintiff as “bright”
and stated she “could be more successful, if not for excessive absences,” and that she does
interact with her peers, but in an immature manner. (ECF No. 10, p. 202).
The ALJ also determined Plaintiff’s impairments resulted in moderate limitations in
her concentration, persistence or pace. (ECF No. 10, p. 24). The ALJ accepted Plaintiff’s
testimony and the Function Report completed by Ms. Faulkner, which indicated that Plaintiff’s
short-term memory retention was poor, and she had to do a task multiple times before she
understood it. (ECF No. 10, pp. 24-25). The ALJ also noted, however, that Plaintiff was in
regular classes and not receiving special education services. Id. The ALJ also accepted the
opinion of Dr. McInroe who stated Plaintiff “exhibits deficits in short-term auditory memory
and consolidation into longer-term memory. She also exhibits mild to moderate deficits in
visual spatial memory.” (ECF No. 10, pp. 25, 1133).
Plaintiff does not meet the paragraph “C” criteria of listings 12.02 or 12.04. The ALJ
specifically considered the paragraph “C” criteria of Listings 12.02 and 12.04 and in each
instance determined that Plaintiff’s impairments did not: cause more than a minimal limitation
of ability to do basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support; repeated episodes of decompensation, each of extended
duration; a residual disease process that has resulted in such marginal adjustment that even a
minimal increase in mental demands or change in the environment would be predicted to cause
Plaintiff to decompensate, or; a current history of one or more years’ inability to function
outside a highly supportive living arrangement, with an indication of continued need for such
an arrangement.” (ECF No. 10, p. 25). Plaintiff contends the fact that Plaintiff still attends high
school and lives with her grandmother and former guardian that she satisfies the paragraph “C”

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criteria of listings 12.02 and 12.04. The record contains no evidence, however, that Plaintiff
remains the ward of her former guardian. The ALJ also determined that Plaintiff was still in
high school because Plaintiff missed so much school because of her treatment for leukemia,
which had been in remission for five years at the time of the administrative hearing. (ECF No.
10, p. 28). Although Plaintiff cites thirty-three (33) school absences for medical reasons,
Plaintiff’s teacher indicated seventeen (17) absences were excused for medical reasons and
sixteen (16) absences were unexcused. (ECF No. 10, p. 195). Although, by any standard,
Plaintiff has missed a substantial amount of school, this Court notes that the record does not
contain any evidence of extended periods of decompensation.
Based on the foregoing, The Court finds the ALJ met his duty when he considered the
evidence of the listed impairments and concluded that there was no showing on the record that
the claimant's impairments met or are equivalent to any of the listed impairments. Accordingly,
I find substantial evidence supports the ALJ’s determination that Plaintiff’s impairments did
not meet or medically equal the criteria of any of the Listings.
B.

RFC Determination

RFC is the most a person can do despite that person’s limitations. 20 C.F.R. § 416.945.
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 her
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. § 416.945(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

10

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.
At the outset, Plaintiff argues the ALJ failed to take into consideration a visual
impairment. (ECF No. 11, pp. 2-3). Plaintiff does not cite, nor does the record contain evidence
Plaintiff sought treatment for disabling vision problems. 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). Plaintiff contends the ALJ failed to fully and fairly develop the record in this regard,
and this contention represents a significant portion of Plaintiff’s argument with regard to the
ALJ’s RFC determination. As stated previously, the ALJ owes a duty to a claimant to develop
the record fully and fairly to ensure his decision is an informed decision based on sufficient
facts. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). However, the ALJ is not
required to function as the claimant’s substitute counsel, but only to develop a reasonably
complete record. Whitman v. Colvin, 762 F.3d 701, 707 (8th Cir. 2014) (quoting Clark v.
Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994). Plaintiff and the ALJ had the following exchange
at the administrative hearing:
Q

Now before we get started, I – I talked to you about if you wanted to get
an attorney. You told me you thought you wanted to go ahead and
proceed without one. Is that still what you think?

A

Yes, sir.

Q

Okay. Have you all tried to get one?

A

Yes, and they’ve told me and my grandmother that they will not
represent us –

Q

Okay.
11

A

-- or me I should say.

(ECF No. 10, pp. 43-44). After the ALJ had a brief discussion with Plaintiff regarding the
reasons why an attorney may decided not to represent her, they had the following exchange:
Q

Okay. All right. Let me – I just want to – I want to make sure you
understand your legal rights and I want to go through this real quick
because I want to be – be careful and that. That’s very important. Just
listen up and if you have any questions when I’m done, we’ll talk about
it.
You have the right to be represented by an attorney or non-attorney who
may help you obtain and submit records, explain medical terms, make
requests, protect your rights, and present evidence in a light most
favorable to your case. A representative may charge you for expenses
such as obtaining and copying medical records, but may not charge and
receive a fee unless I approve it. Representatives do not normally get
paid unless I award benefits and then they only accept 25% of your back
benefits or $6,000, whichever is less. Some legal service organizations
offer free legal representation if you qualify under their rules, but this is
usually need based and, of course, you may also choose to proceed today
without a representative.
Now did you understand what I just said?

A

Except for where you started going into the money part. That – that I
didn’t understand.

Q

Okay. Well, and let me explain that. When you have what’s the – the
typical disability case for an adult or – or anyone hen they’re filing –

A

Yes.

Q

-- it takes a while to get a hearing so there’s – there’s money that’s to be
paid out if they’re awarded benefits. In your case, you’re still receiving
benefits so nothing;s – nothing’s backing up. There’s no backing that’s
being piled up in case you get awarded and that’s – the attorney’s
generally get paid out of that money that would be in – in waiting I guess
and there’s – there’s not this in this case. That’s probably why you’re
having trouble getting anyone to take your case.

A

Oh, okay.

12

Q

So – and then the other part was about organizations like Legal Services
and it sounds like your grandma has tried that route also.

A

Yes.

Q

Okay. Well, based on that, what you know, do you want to go ahead and
proceed today?

A

Yes, sir.

Q

Okay. And, ma’am, let me – let me just assure you that I’m – I’m here
also to protect your rights. I’m going to make sure I ask questions and –
and give you every opportunity to tell what you want to tell. Okay?

A

Okay.

(ECF No. 10, pp. 45-46). The ALJ asked Plaintiff multiple times, in an open-ended manner, to
describe all of her physical and mental impairments. (ECF No. 10, pp. 48-50). Plaintiff never
cited visual problems. She stated that she was not doing well in school, that her leukemia had
been in remission for five years, and that she suffered chronic headaches, severe depression,
and back pain. (ECF No. 10, pp. 48-49). Plaintiff further stated that her sinus problems
primarily caused headaches, “but the sinus headaches have been taken care of mostly by sinus
medicine,” and that her chronic headaches are the result of her family history and prior
leukemia treatment. (ECF No. 10, p. 49). The ALJ asked:
Q

All right. Anything else before we call your grandmother in here?

A

No, that’s all that I know of.

Q

Okay. Go ahead. Did you have something to say?

A

That’s all that I know of.

Q

Okay. All right.

(ECF No. 10, pp. 49-50). Plaintiff gave the ALJ up to date records at the administrative hearing.
(ECF No. 10, pp. 58-59). At the beginning of the hearing, the ALJ gave Plaintiff a disk

13

containing her medical records which the Administration compiled in her case. (ECF No. 10,
pp. 42-43). The ALJ and Plaintiff had the following exchange:
Q

[Plaintiff], do you have a computer at home where you can look at that
disk?

A

Yes, sir.

Q

Okay. Well, ma’am, just to make sure you’re seeing everything, I’m
going to give you five days to look at that disk and to call our office if
you see anything on there you don’t think is correct or if you have an
objection to any of that. Okay?

A

Yes, sir.

Q

And if you have trouble opening up that disk, you call the office here in
Fort Smith and get them to talk you through it. They can tell you how
to open it up, but you should be able to do it.

A

Okay.

(ECF No. 10, p. 43). The ALJ had the same conversation with Plaintiff’s grandmother near the
end of the hearing after she provided her testimony. (ECF No. 10, pp. 59-60). Before closing
the hearing, the ALJ, Plaintiff, and Plaintiff’s grandmother had the following exchange:
ALJ

Now in the meantime before you get the decision, if you go to
any doctor appointments or get anymore letters from doctors to
– to say what problems she’s having, I would welcome any –
any of those things. Just send them down here and make sure
you’ve got good notes on them, you know, what file it’s
supposed to go to. Okay?

WTN

Okay.

ALJ

All right. Any questions at all?

WTN

Do you have any? No?

CLMT

No, I –

WTN

No.

CLMT

By the way you explained it, I understood it. So I’m good.
14

ALJ

Okay. Well, let me tell you this, if – if later on you think of
something, have any questions at all, don’t hesitate to call down
here and ask and they’ll get a message to me. Okay?

CLMT

Okay.

WTN

Okay. We can do that.

(ECF No. 10, p. 64). The ALJ provided Plaintiff every reasonable opportunity to supplement
the record. Moreover, despite Plaintiff’s contention that the ALJ did not fully and fairly
develop the record, Plaintiff offered no additional records for review by the Appeals Council
or this Court.
To the extent Plaintiff argues the ALJ should have incorporated Plaintiff’s alleged
visual impairment into the RFC determination, this Court finds substantial evidence supports
the ALJ’s determination Plaintiff’s severe impairments did not include a visual impairment
and the ALJ’s determination to form an RFC without limitations regarding Plaintiff’s vision.
Moreover, based on the foregoing and a thorough examination of the record as a whole, this
Court finds the ALJ satisfied his duty to fully and fairly develop the record. The ALJ had
before him the evaluations and treatment records of numerous healthcare providers which
provided sufficient evidence for the ALJ to make an informed decision regarding Plaintiff’s
alleged impairments. The Court also notes that other evidence in the record, including
Plaintiff’s own statements, constituted evidence regarding her limitations, and that the existing
medical sources contained sufficient evidence for the ALJ to make a determination regarding
Plaintiff’s RFC.
The ALJ properly accounted for Plaintiff’s alleged impairments in his RFC
determination. First, Plaintiff’s leukemia had been in remission for five years at the time of
Plaintiff’s administrative hearing. (ECF No. 10, p. 48). Next, Plaintiff stated her sinus surgery
15

and medication had “mostly” taken care of her sinus headaches. (ECF No. 10, p. 49). Plaintiff
alleged limitation with her memory, and evidence in the record confirmed Plaintiff suffered
deficits in the areas of reading comprehension and her memory retention. (ECF No. 10, pp. 49,
1129-33). Dr. McInroe opined “Multiple presentation of stimuli can increase her memory
functioning. Writing, reading, and saying aloud can effectively improve one’s auditory
memory skills.” (ECF No. 10, p. 1133). The ALJ, therefore, limited Plaintiff to work involving
simple, routine, and repetitive tasks involving only simple, work related decisions. (ECF No.
10, pp. 26-31, Finding 4). Plaintiff also argues the ALJ should have included environmental
limitations in his RFC determination. (ECF No. 11, p. 6). Plaintiff cites to no evidence of
functional limitation related to exposure to environmental factors, however, and any potential
error to include such limitation in the RFC determination is harmless as the jobs the ALJ
identified the Plaintiff could perform do not involve exposure to environmental factors. See
DOT 239.567-010, 1991 WL 672232 (1991); DOT 209.687-026, 1991 WL 671813 (1991);
DOT 209.587-034, 1991 WL 671802 (1991). Finally, Plaintiff alleged limitation based on her
alleged mental impairments, and evidence in the record, namely Plaintiff’s long history of
mental health treatment throughout the years, confirmed Plaintiff’s amnestic disorder,
cognitive disorder, and depression. The ALJ limited Plaintiff to no more than incidental contact
with coworkers, supervisors, and the general public, consistent with the treatment notes in
those records, as well as the opinion of Dr. McInroe, who noted Plaintiff used somatization as
a defense mechanism, exhibited social stress and anxiety, and was at risk for aggression. (ECF
No. 10, pp. 26-27, 1131).
Plaintiff cites to no additional evidence she was more limited than accounted for by the
ALJ’s RFC determination. Plaintiff primarily argues the ALJ failed to fully and fairly develop

16

the record with regard to the physical and mental portion of her RFC. (ECF No. 11, pp. 6-8).
As discussed previously, Plaintiff’s argument is unavailing. It is clear Plaintiff suffers with
some degree of limitation and pain. This Court notes, however, that the inability to work
without some pain or discomfort is not a sufficient reason to find a Plaintiff disabled within
the strict definition of the Act. The issue is not the existence of pain, but whether the pain a
Plaintiff experiences precludes the performance of substantial gainful activity. See Thomas v.
Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
The Court notes that in determining Plaintiff’s RFC, the ALJ considered the treatment
notes and medical opinions of many treating physicians, consultative examiners, and
specialists, as well as those of the non-examining state agency consultants, and set forth the
reasons for the weight given to the opinions. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th
Cir. 2012) (“It is the ALJ’s function to resolve conflicts among the opinions of various treating
and examining physicians”) (citations omitted); Prosch v. Apfel, 201 F.3d 1010 at 1012 (8th
Cir. 2000) (the ALJ may reject the conclusions of any medical expert, whether hired by the
claimant or the government, if they are inconsistent with the record as a whole). Based on the
record as a whole, the Court finds substantial evidence to support the ALJ’s RFC
determination.
C.

Hypothetical Questions to the VE

Plaintiff states, without argument, that substantial evidence does not support the ALJ’s
finding at step five of the sequential evaluation process. (ECF No. 11, p. 1). Plaintiff’s
statement cites only that the ALJ failed to account for several of Plaintiff’s limitations, which
is essentially an argument that the ALJ’s RFC determination was inadequate. Id. The
hypothetical the ALJ posed to the VE fully set forth the impairments that the ALJ accepted as

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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 opinion constitutes substantial
evidence supporting the ALJ’s conclusion that Plaintiff’s impairments did not preclude her
from performing the work of an office helper, mail room sorter, or a merchandise marker.
Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996) (testimony from a VE based on a properly
phrased hypothetical question constitutes substantial evidence).
IV.

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 is
hereby affirmed. The undersigned further finds that the Plaintiff’s Complaint should be, and is
hereby dismissed with prejudice.
IT IS SO ORDERED this 22nd day of August, 2017.

/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE

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