Malleck v. Colvin

Filing 26

MEMORANDUM AND ORDER re: 20 SOCIAL SECURITY BRIEF filed by Plaintiff Tricia A. Malleck, 25 SOCIAL SECURITY CROSS BRIEF re 20 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin. IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiff's Complaint is DISMISSED with prejudice. A separate judgment will accompany thisOrder. Signed by District Judge John A. Ross on 3/30/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

TRICIA ANN MALLECK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 1: 13-CV-164 JAR

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security's final decision denying Tricia Malleck's ("Malleck") 1 application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. and
supplemental security income ("SSI") under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq.

I.

Background

On April 20, 2011, Malleck protectively filed applications for disability insurance under
Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. (Tr. 180-86), and for SSI benefits
under Title XVI of the Act, 42 U.S.C. §§1381, et seq. (Tr. 187-193) In both applications,
Malleck alleged disability beginning May 16, 2008. The Social Security Administration ("SSA")
denied Malleck's claims on August 25, 2011.

(Tr. 79-83) She filed a timely request for a

hearing before an administrative law judge ("ALJ") on September 13, 2011.

(Tr. 84-85)

Following a hearing on June 21, 2012 (Tr. 29-75), the ALJ issued a written decision on
September 25, 2012, upholding the denial of benefits. (Tr. 10-28) Malleck requested review of
1

Tricia Malleck is also referred to in the administrative record as Tricia King.

the ALJ's decision by the Appeals Council. (Tr. 8-9) On September 13, 2013, the Appeals
Council denied Malleck's request for review. (Tr. 1-7) Thus, the decision of the ALJ stands as
the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).
Malleck filed this appeal on November 8, 2013. (Doc. 2) The Commissioner filed an
Answer. (Doc. No. 12) Malleck filed a Brief in Support of her Complaint. (Doc. No. 20) The
Commissioner filed a Brief in Support of the Answer. (Doc. No. 25) Malleck did not file a Reply
Brief.

II.

Decision of the ALJ

The ALJ determined that Malleck meets the insured status requirements of the Social
Security Act through March 31, 2012, 2 and had not engaged in substantial gainful activity since
May 16, 2008, the alleged onset date of disability. (Tr. 15) The ALJ found Malleck had the
severe impairments of obstructive sleep apnea, chronic obstructive pulmonary disease, migraine
headaches, asthma, diabetes mellitus and obesity, but that no impairment or combination of
impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (Tr. 15-18)
After considering the entire record, the ALJ determined Malleck had the residual
functional capacity ("RFC") to perform sedentary work, except she can lift and carry up to 10
pounds frequently and 20 pounds occasionally, stand or walk up to two hours in an eight-hour
day, and sit up to six hours in an eight-hour day. Malleck may occasionally climb stairs, but she
should never climb ladders, ropes or scaffolds. She can frequently balance, and occasionally
stoop, crouch, kneel or crawl. She must avoid prolonged exposure to temperature extremes,
chemicals, dusts, fumes and noxious odors, and she must avoid unprotected heights. In addition,
2

To be entitled to disability benefits under Title II of the Act, Malleck must establish the onset of her
disability prior to the expiration of her insured status on March 31, 2012. (Tr. 13) See 20 C.F.R. §
404.130.
2

secondary to reported chronic pain and medical conditions, Malleck is limited to jobs that do not
require attention to detail or complicated job tasks and instructions. (Tr. 18)
The ALJ found Malleck has no past relevant work. (Tr. 22) She was 33 years old, defined
as a younger individual aged 18-44, on the alleged disability onset date. (Id.) Malleck has a
limited education and is able to communicate in English. Transferability of job skills is not an
issue because she does not have past relevant work. Considering her age, education, work
experience and RFC, the ALJ concluded there are jobs that exist in significant numbers in the
national economy that she can perform, including an order clerk, blower/stuffer of toys, and film
touch-up inspector. (Tr. 23) Thus, the ALJ concluded that Malleck had not been under a
disability from the alleged onset date of May 16, 2008 through the date of his decision,
September 25, 2012. (Id.)

III.

Administrative Record

The following is a summary of the relevant evidence before the ALJ.

A.

Hearing Testimony

The ALJ held a hearing in this matter on June 21, 2012. The ALJ heard testimony from
Malleck and James Adams, a vocational expert.
1.

Malleck's testimony

Malleck was 37 years old at the time of the hearing and living with her ex-husband and
their two children, ages ten and eight. (Tr. 36-37, 59) She completed the eleventh grade. (Tr. 37)
She has a driver's license but only drives when she has to. (Tr. 38) Malleck testified that she
hasn't worked since May of 2008. (Tr. 38)
In a typical month Malleck has migraines twice a week, lasting about half a day. (Tr. 39)
She has been prescribed different medications, and it was her testimony that they help to a point.

3

(Tr. 40) When she has a headache she takes her medication and lays in bed in a dark room. (Tr.
40-41) She uses a CPAP machine at night for her sleep apnea and recently began using it during
the day to help with her breathing problems. (Tr. 44-46)
Within the past three months Malleck started experiencing stomach pain two or three
days a week. She referenced a diagnosis of sclerosing mesenteritis. (Tr. 41-42) A mass had been
detected in her stomach and at the time of the hearing she was still undergoing testing. (Tr. 42)
Malleck testified that within the last month, any activity causes her to be short of breath.
(Tr. 43, 64) On a bad night, she averages five hours of sleep; on a good night she averages eight
hours. In either case, her sleep is interrupted. (Tr. 47) She usually has between two and four bad
nights a week. (Tr. 48)
Malleck is able to control her diabetes and high blood pressure with medication and diet.
(Tr. 49) Over the last two to three months, she has experienced swelling, or edema, in her hands
and feet. She is on medication for this condition and her doctors are testing to determine the
cause. (Tr. 50) It was Malleck's testimony that she has always had problems using the bathroom
frequently and urgently, i.e., every 30-45 minutes. (Tr. 50-52) Her doctors think this condition is
caused by edema. (Tr. 51) Malleck also suffers from seasonal allergies. (Tr. 52-53)
Malleck estimates that she can manage to carry a gallon of milk occasionally without
aggravating her symptoms. (Tr. 53-54) She can reach occasionally most days and grasp and
finger occasionally. (Tr. 55) She can walk about half of block before her sides start hurting. (Tr.
55-56) Then she needs to sit for about an hour to recover from that limited walking. (Tr. 56) She
can stand for about 30 minutes and sit for less than that. (Tr. 56-57) Her symptoms interfere with
her ability to focus and concentrate. If given a simple task to do for two hours at a time, Malleck
says she would probably fall asleep. (Tr. 57) She could pay attention for about 45 minutes before

4

fatigue sets in. (Tr. 58) Her ex-husband has to remind her of appointments and when to take her
medication. (Tr. 58-59)
Malleck's children do a lot of microwave cooking and help with the cleaning, dishes and
laundry. Her ex-husband does the grocery shopping. (Tr. 60-61) Before he moved back in,
Malleck's friends would help her with household chores. (Tr. 61)
Malleck testified she is seeking treatment for depression and anxiety. (Tr. 61-62) Her
regular physician prescribed Cymbalta. (Tr. 62) She has been taking medication for depression
or anxiety for a couple of years. (Id.) She has two to three bad days a week. (Tr. 63) She copes
by lying on the couch and sleeping. (Id.) She isolates herself from others and can't motivate
herself to do anything productive on those days. (Id.) Malleck hasn't seen a mental health
professional except for counselor Sharon Head because she was hoping the medication would
take care of it. (Tr. 65)
Malleck avoids crowds because being out around people in public causes anxiety even
with medication. (Tr. 64) She doesn't attend church or other regular social gatherings and
doesn't go to her children's school activities, sports, etc. (Tr. 64-66) It was her testimony that she
recently changed medical providers because she has a lot of problems and wants some answers.
(Tr. 65)

2.

Testimony of Vocational Expert

The ALJ asked vocational expert, James Adams, to assume an individual of the
claimant's age, education, and work history with the capacity to lift twenty pounds occasionally
and ten pounds frequently, to walk or stand no more than two hours out of an eight hour day and
to sit for six hours out of an eight hour day. The individual can occasionally climb stairs but
should never climb ropes, scaffolds, or ladders. The individual can frequently balance,

5

occasionally stoop, crouch, kneel and crawl, and must avoid prolonged exposure to temperature
extremes, chemicals, dust, fumes and noxious odors, as well as unprotected heights. The ALJ
further limited the individual to jobs that do not demand attention to details or complicated job
tasks or instructions. (Tr. 69-70) Adams opined that such an individual should be able to work as
an order clerk, DOT (Dictionary of Occupational Titles) number 209.567-014, with 211,370 such
jobs available nationwide and 950 locally. (Tr. 70-71) This is sedentary, unskilled work. (Tr. 71)
Adams further opined that such an individual should also be able to function as a blower, or
stuffer of toys, DOT number 731.685-014, with 342,208 such jobs nationwide and 500 locally.
(IQ.) This is also sedentary, unskilled work. Such an individual should also be able to perform

work as a film touchup inspector, DOT number 726.682-050, with 22,127 such jobs nationwide
and 500 locally, also sedentary and unskilled. (Id.)
For the second hypothetical, the ALJ asked Adams to assume the same limitations from
the first hypothetical with the following additional limitation: occasional reaching, handling and
fingering, and secondary to her chronic medical conditions, difficulty maintaining acceptable
levels of punctuality and attendance and missing one or two days a week. (Tr. 72) Adams
concluded the individual could not do those jobs, or any other jobs. (Id.)
Upon examination by Malleck's counsel, Adams stated that considered separately, the
additional restriction on manipulative function would rule out work since unskilled work requires
good balance or manual dexterity. (Id.) Issues regarding attendance would rule out all work as
well. (Tr. 73) Counsel asked Adams to assume a hypothetical individual whose ability to focus
and concentrate was impaired to such an extent that she would be unable to sustain attention to a
simple task for a two hour period before being distracted and requiring daily reminders regarding
recurring daily activities. According to Adams, such a person could not do competitive work.

6

(Tr. 73-74) Adams further testified that missing work more than twice a month jeopardizes the
job. (Tr. 74)

B.

Medical Records

The ALJ summarized Malleck's medical records at Tr. 19-22. Relevant medical records
are discussed as part of the analysis.
IV.

Standards

The Social Security Act defines as disabled a person who is "unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A); see
also Brantley v. Colvin, 2013 WL 4007441, at

* 2 (E.D.

Mo. Aug. 2, 2013). The impairment

must be "of such severity that [the claimant] is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired ifhe applied for work." 42 U.S.C. § 1382c(a)(3)(B).
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920(a), 404.1520(a). "If a claimant
fails to meet the criteria at any step in the evaluation of disability, the process ends and the
claimant is determined to be not disabled." Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)
(quoting Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). First, the claimant
must not be engaged in "substantial gainful activity." 20 C.F.R. §§ 416.920(a), 404.1520(a).
Second, the claimant must have a "severe impairment," defined as "any impairment or

7

combination of impairments which significantly limits [claimant's] physical or mental ability to
do basic work activities." 20 C.F.R. §§ 416.920(c), 404.1520(c). "The sequential evaluation
process may be terminated at step two only when the claimant's impairment or combination of
impairments would have no more than a minimal impact on [his or] her ability to work." Page v.
Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605
(8th Cir. 2001).
Third, the claimant must establish that his or her impairment meets or equals an
impairment listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has
one of, or the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant's age, education, or work history. Id.
Before considering step four, the ALJ must determine the claimant's residual functional
capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as ''the most a claimant
can do despite [his] limitations." Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20
C.F.R. § 404.1545(a)(l)). At step four, the ALJ determines whether the claimant can return to his
past relevant work, by comparing the claimant's RFC with the physical and mental demands of
the

claimant's

past

relevant

work.

20

C.F.R.

§§ 404.1520(a)(4)(iv),

404.1520(f),

416.920(a)(4)(iv), 416.920(f); McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011). If the
claimant can still perform past relevant work, he will not be found to be disabled; if the claimant
cannot, the analysis proceeds to the next step. Id.
At step five, the ALJ considers the claimant's RFC, age, education, and work experience
to see if the claimant can make an adjustment to other work in the national economy. 20 C.F.R.
§§ 416.920(a)(4)(v). If the claimant cannot make an adjustment to other work, then he will be
found to be disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v). Through step four, the

8

burden remains with the claimant to prove that he is disabled. Brantley, 2013 WL 4007441, at *3
(citation omitted). At step five, the burden shifts to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Id. "The ultimate burden of persuasion to prove disability, however, remains with the
claimant." Meyerpeter v. Astrue, 902 F.Supp.2d 1219, 1229 (E.D. Mo. 2012) (citations omitted).
The Court's role on judicial review is to determine whether the ALJ's findings are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d 935,
942 (8th Cir.2009). In determining whether the evidence is substantial, the Court considers
evidence that both supports and detracts from the Commissioner's decision. Cox v. Astrue, 495
F.3d 614, 617 (8th Cir. 2007). As long as substantial evidence supports the decision, the Court
may not reverse it merely because substantial evidence exists in the record that would support a
contrary outcome or because the Court would have decided the case differently. See Krogmeier
v. Barnhart, 294 F.3d 1019, 1022 (8th Cir.2002).
To determine whether the ALJ's final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;

(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant's treating physicians;
(4) The subjective complaints of pain and description of the claimant's physical
activity and impairment;
(5) The corroboration by third parties of the claimant's physical impairment;
(6) The testimony of vocational experts based upon prior hypothetical questions
which fairly set forth the claimant's physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec'y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).

V.

Discussion
9

In her appeal of the Commissioner's decision, Malleck raises three issues. First, she
alleges the ALJ's RFC is erroneous because it is not well-supported by the required "narrative
discussion" requirement of Social Security Ruling 96-8p. (Doc. No. 20 at 10-12) Second,
Malleck argues the ALJ exaggerated the nature and extent of her daily activities and
misconstrued the vocational significance of these activities. (Id. at 12-13) Third, Malleck
contends the ALJ failed to fully and fairly develop the record, ignoring an explicit request to
assist her in obtaining necessary medical records. (14. at 14-15)

1. Sufficiency of narrative discussion
Social Security Ruling 96-8p requires the ALJ to include in the decision "a narrative
discussion describing how the evidence supports each conclusion, citing specific medical facts
(e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." In
addition, the ALJ must "explain how any material inconsistencies or ambiguities in the evidence
in the case record were considered and resolved." SSR 96-8p. Malleck acknowledges that the
ALJ provided a function-by-function RFC assessment as required by the regulations; however,
she contends the decision lacks a "narrative discussion" clearly identifying the evidence of
record that supports the ALJ's specific conclusions regarding functional capacity together with
an explanation of how that evidence supports the conclusions reached. (Doc. No. 20 at 10)
Before addressing Malleck's argument, it is important to note that this Court reviews for
substance over form: "an arguable deficiency in opinion-writing technique does not require the
court to set aside an administrative finding when that deficiency had no bearing on the outcome."
Farringer v. Colvin, 969 F.Supp.2d 1144, 1155-56 (D.Neb. 2013) (quoting Buckner v. Astrue,
646 F.3d 549, 559 (8th Cir.2011)).

10

An ALJ need not provide a narrative discussion immediately following each statement of

an individual limitation in the RFC, if the Court can otherwise discern the elements of the ALJ's
decision-making. Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003). Moreover, the ALJ is
not required to make explicit findings for every aspect of the RFC, just for the conclusion
reached. Social Security Ruling 96-8p. See also, Tawfall v. Astrue, 2010 WL 3781807, at *10
(E.D.Mo. Sept. 21, 2010).
In his opinion, the ALJ discussed Malleck's medical history of migraine headaches (Tr.
341, 462-63, 552), type II diabetes mellitus and high blood sugars (Tr. 431, 499), asthma,
chronic obstructive pulmonary disease (Tr. 568), and obstructive sleep apnea. (Tr. 341) He set
out his conclusions regarding Malleck's limitations, explained why he found certain items of
medical evidence in the record more persuasive than others, and discussed what evidence was
lacking. (Tr. 18-22) Furthermore, while a claimant's RFC is a medical question, an ALJ is not
limited to considering medical evidence exclusively. Cox v. Astrue, 495 F.3d 614, 619 (8th
Cir.2000). In this case, the ALJ properly considered Malleck's history of treatment
noncompliance (Tr. 19-21, 363-64, 369-70, 376, 397, 530), self-reported activities of daily living
(Tr. 17, 254-269), and her inconsistent earnings record. (Tr. 21, 224-25) In addition, the ALJ
noted the lack of objective evidence to support the degree of limitation Malleck alleged (Tr. 202 l, 224-25, 341, 343, 363, 370, 377, 385, 391,432,446-47, 500, 508, 514, 522, 524, 545, 55257), as well as the lack of restrictions imposed on Malleck by her treating doctors. (Tr. 21, 364,
370, 377)
The ALJ also considered the opinions of the state agency medical consultants, Elissa
Lewis, Ph.D., and Anne Winkler, M.D., and gave them both significant weight. (Tr. 21-22) Dr.
Lewis opined that Malleck has no severe mental impairment. (Tr. 21) The ALJ found this

11

opinion consistent with Malleck' s medical records, which show she does not require specialized
mental health treatment on a routine or emergency basis. (Id.)
Dr. Winkler opined that Malleck has only minimal limitations due to her documented
health problems and could frequently lift 50 pounds and sit, stand and walk up to eight hours in
an eight-hour day. (Id.) In addition, it was Dr. Winkler's opinion that Malleck is not limited in
the use of her hands or feet, can frequently climb ramps and stairs and balance, stoop, kneel,
crouch and crawl. She can never climb ladders, ropes or scaffolds and must avoid unprotected
heights, and more than frequent exposure to hazards, pulmonary irritants, dust, fumes, odors and
noise. (Tr. 22) The ALJ found this opinion consistent with Malleck's medical records, which
show she has not been given restrictions on her activities by her treating physicians; however, the
ALJ further reduced Malleck's functional abilities in consideration of her subjective complaints.
(Tr. 22)
In summary, the ALJ discussed the relevant medical and nonmedical evidence, why he
believed it contradicted Malleck's allegations of disabling impairment, and explained how he
determined her RFC assessment. This narrative bridge to the RFC determination is more than
adequate. Crabtree v. Colvin, 2014 WL 6977779, at *6-7 (E.D.Mo. Dec. 9, 2014); Jones v.
Astrue, 2011 WL 4445825, at *9-10 (E.D.Mo. Sept. 26, 2011).

2. Daily activities
Malleck argues the ALJ erred in his credibility evaluation and RFC determination by
failing to acknowledge her challenges and restrictions when she performs or attempts to perform
her daily activities. (Doc. No. 20 at 12-13) In his decision, the ALJ found the record suggests
Malleck may be more active than she would project. Specifically, she is able to participate in the

12

care of her young children, shop, drive, cook, watch television and care for her dog. She was also
able to travel to California for a week the previous year. (Tr. 21)
To be sure, there are cases in which a claimant's ability to engage in certain personal
activities "does not constitute substantial evidence that he or she has the functional capacity to
engage in substantial gainful activity." Ponder v. Colvin, 770 F.3d 1190, 1196-96 (8th Cir. 2014)
(citing Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Kelley v. Callahan, 133 F.3d 583, 589
(8th Cir. 1998)). But that is not the case where, as here, Malleck's treating doctors never
restricted her activity and actually advised her to increase her activity and exercise to help her
condition. (Tr. 21, 370, 377) The ALJ reasonably considered activities of daily living in
determining Plaintiffs RFC.
Moreover, Malleck's daily activity was just one of several factors the ALJ considered in
assessing her credibility and determining her RFC. The ALJ also considered the lack of objective
evidence to support the degree of limitation alleged (Tr. 20, 341, 343; 363, 370, 377, 385, 391,
432, 446-47, 500, 508, 514, 522, 524, 545, 552-57), the effectiveness of Malleck's treatment
measures when she was compliant with treatment (Tr. 19-21, 341-43, 363-64, 376, 431, 446,
499-500), her lack of compliance with recommended treatment (Tr. 19-21, 363-64, 369-70, 377,
397, 432, 530), the lack of restrictions imposed on Plaintiff by her treating doctors (Tr. 21, 364,
370, 377), her erratic and inconsistent earnings record (Tr. 21, 224-25), and the opinion of the
state agency medical consultants. (Tr. 21-22, 450-60, 527-37)
The ALJ considered Malleck's subjective complaints on the basis of the entire record and
set out numerous inconsistencies that detracted from her credibility. Because the ALJ' s
determination not to credit Malleck's subjective complaints is supported by good reasons and
substantial evidence, the Court defers to his determination. Cobb v. Colvin, 2014 WL 6845850,

13

at *14 (E.D.Mo. Dec. 3, 2014) (internal citations omitted). See also Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir.1984).

3. Development of the record
Finally, Malleck argues the ALJ failed to assist her in obtaining treatment records from
her primary care clinic from March 1, 2012 to the present, and that this failure to fully develop
the record requires remand to further develop the evidence. (Doc. No. 20 at 14-15) She points
specifically to a letter from her counsel to the ALJ dated September 6, 2012 summarizing his
efforts to obtain records from McVickers Family Healthcare, providing a medical release to the
ALJ, and requesting the ALJ subpoena the records from the provider.3 (Tr. 330) In this letter,
counsel states "[w]e believe these records are important evidence in support of claimant's case."

The ALJ has an independent duty to fully and fairly develop a record in order to make a
fair determination as to disability even where, as here, the claimant is represented by counsel.
Wheeler v. Colvin, 2014 WL 1212700, at *16 (E.D.Mo. Mar. 21, 2014). The ALJ is required to
develop a complete medical history for the claimant for at least the twelve months preceding the
month in which the claimant's application was filed before making a determination. 20 C.F.R. §§
404.1512(d), 416.912(d). A complete medical history includes the records of the claimant's

3

Section 1-2-5-78 of the Social Security Administration's Hearings, Appeals, and Litigation Manual
(HALLEX) sets forth the procedure for requesting the issuance of a subpoena from the ALJ. Under
HALLEX, the claimant must provide: ( 1) the names and addresses of the witness/documents to be
requested; (2) a statement of the important facts that the documents are expected to provide; and (3) the
reason why these facts cannot be proven without issuing a subpoena. A subpoena may then issue if: ( 1)
the claimant has shown that an individual has evidence that the claimant cannot obtain without the
subpoenas; (2) the ALJ determines that the evidence is reasonably necessary for the full presentation of
the case; and (3) the ALJ has exhausted other means of obtaining this evidence. The Court notes,
however, that HALLEX does not impose judicially enforceable duties upon the parties, but rather is
strictly an internal Agency manual with no legal effect on the Administration or this Court. Clark v.
Astrue, 529 F.3d 1211, 1216 (9th Cir.2008); Moore v. Apfel, 216 F.3d 864, 868-69 (9th Cir.2000).

14

medical source covering at least the 12 months preceding the month in which the application is
filed. 20 C.F.R. §§ 404.1512(d)(2), 416.912(d)(2).
"There is no bright line test for determining when the [Commissioner] has failed to
develop the record. The determination in each case must be made on a case by case basis."
Battles v. Shalal~ 36 F.3d 43, 45 (8th Cir. 1994). A claimant for disability benefits has the
responsibility to provide medical evidence demonstrating the existence of an impairment and its
severity during the period of disability and how the impairment affects the claimant's
functioning. 20 C.F.R. §§ 404.1512(c), 416.912(c); Vossen v. Astrue, 612 F.3d 1011, 1016 (8th
Cir. 2010); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (holding that the burden of
persuasion to prove disability and demonstrate RFC remains on the claimant). "An ALJ is
permitted to issue a decision without obtaining additional medical evidence so long as other
evidence in the record provides a sufficient basis for the ALJ's decision." Anderson v. Shalala,
51 F.3d 777, 779 (8th Cir. 1995). Furthermore, "reversal due to failure to develop the record is
only warranted where such failure is unfair and prejudicial." Shannon v. Chater, 54 F.3d 484,
488 (8th Cir. 1995).
Based on the evidence in the record as a whole, the Court finds no unfairness or
prejudice. First, the record contains extensive medical evidence from examining, treating and
reviewing sources. (Tr. 335-624) This evidence provided a sufficient basis for the ALJ's decision
and there was no indication that additional medical records were necessary. Second, Malleck
does not explain what these additional medical records would show or how they would have
affected the outcome of the disability determination, which weighs against a finding of prejudice
that would warrant reversal. Wheeler, 2014 WL 1212700, at *17. See also, Shannon v. Chater,
54 F.3d 484, 488 (8th Cir. 1995) (refusing to remand based on failure to develop the record

15

regarding missing records; reasoning in part that "the substance of [the plaintiffs] alleged other
medical visits is unclear at best" and that the plaintiff "has not indicated that those visits should
be regarded as dispositive for purposes of his claim"); Owens v. Barnhart, 109 F. App'x 825, 827
(8th Cir.2004) (refusing to remand for failure to develop the record regarding missing records;
reasoning in part that the plaintiff had not explained the legal significance of the records).
Because the ALJ adequately developed the evidence in this case, the lack of any
additional records from Malleck's clinic does not provide a basis to remand this case for further
development and consideration.

VI.

Conclusion

For the foregoing reasons, the Court finds the ALJ's decision is supported by substantial
evidence contained in the record as a whole, and, therefore, the Commissioner's decision should
be affirmed.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and

Plaintiffs Complaint is DISMISSED with prejudice. A separate judgment will accompany this
Order.

Dated this 30th day of March, 2015.

A.ROSS
ED STATES DISTRICT JUDGE

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