Darnel v. Colvin

Filing 32

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the final decision of the Commissioner is affirmed, and plaintiff's Complaint is dismissed with prejudice. A separate Judgment in accordance with this Memorandum and Order isentered this same date. Signed by Magistrate Judge Nannette A. Baker on 10/30/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

JUSTIN K. DARNEL,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 2:13CV77 NAB

MEMORANDUM AND ORDER
Plaintiff Justin K. Darnel brings this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for judicial review of the Commissioner’s final decision denying his
application for disability insurance benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. §§ 401, et seq.; and application for supplemental security
income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. All matters
are pending before the undersigned United States Magistrate Judge, with consent
of the parties, pursuant to 28 U.S.C. § 636(c). Plaintiff proceeds in this cause pro
se. Because the Commissioner’s final decision is supported by substantial
evidence on the record as a whole, it is affirmed.
I. Procedural History
On February 12, 2011, plaintiff filed an application for DIB – considered by

the Social Security Administration (SSA) to be protectively filed January 20, 2011
– in which he claimed he became disabled on August 1, 2009, because of arthritis,
sacroiliitis, post-traumatic stress disorder (PTSD), panic disorder, anxiety disorder,
major depressive disorder, and insomnia. (Tr. 101-07, 131.) The SSA denied this
application for benefits on March 18, 2011. (Tr. 31, 34-38.) Thereafter, on
October 14, 2011, plaintiff filed an application for SSI, again claiming a disability
onset date of August 1, 2009. (Tr. 110-15.) Upon plaintiff’s request, a hearing
was scheduled before an administrative law judge (ALJ) on both of plaintiff’s
applications. (Tr. 61-66.) Plaintiff subsequently waived his right to personally
appear at the hearing for the reason that he was incarcerated. (Tr. 95-96.) On June
21, 2012, without conducting an oral hearing, the ALJ issued a decision based on
the evidence of record, finding that plaintiff was not disabled inasmuch as his
medically determinable impairments were not severe. (Tr. 9-18.)1 On June 13,
2013, the Appeals Council denied plaintiff’s request for review of the ALJ's
decision. (Tr. 1-5.) The ALJ's decision thus stands as the final decision of the
Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, plaintiff raises numerous claims that
the ALJ’s decision is not supported by substantial evidence on the record as a
whole. In his pro se Complaint, plaintiff argues that the ALJ erred by failing to
1

At the time this decision was rendered, plaintiff remained incarcerated. (See Tr. 7-8.)
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identify additional impairments that are severe; by improperly evaluating his
credibility; and by failing to fully develop the record. Plaintiff also contends that
his statutory right to counsel was violated when his attorney withdrew from the
case prior to his scheduled administrative hearing. In his pro se Brief in Support of
the Complaint, plaintiff raises additional claims, and specifically, that the ALJ
erred when he failed to elicit vocational expert testimony; improperly weighed
evidence obtained from medical sources; inaccurately assessed plaintiff’s residual
functional capacity (RFC); made no findings on plaintiff’s past relevant work; and
failed to consider the Missouri Department of Corrections’ (MDOC’s)
determination that plaintiff was disabled.2 Plaintiff requests that the ALJ’s
decision be reversed and that he be awarded benefits; or that the matter be
remanded for further proceedings, including for consideration of new and material
evidence. The Court will address plaintiff’s contentions in turn.
As an initial matter, contrary to plaintiff’s assertion, he was not denied a
statutory right to counsel in the circumstances of this case. A review of the record
shows that plaintiff secured counsel during the administrative process in October
2011. Counsel withdrew from the action on April 3, 2012. At the time, the matter
was scheduled for hearing before an ALJ on June 4, 2012. Subsequent to
counsel’s withdrawal, plaintiff’s hearing was rescheduled to May 14, 2012. On
2

With his Briefs, plaintiff has submitted additional documents that were not a part of the
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May 12, 2012, plaintiff waived his right to appear at the hearing and requested that
his case be decided on the written evidence. Plaintiff claims that counsel’s
withdrawal prior to his scheduled hearing violated his statutory right to counsel.
While a claimant is permitted to have counsel represent him during the
administrative process, 42 U.S.C. § 406; 20 C.F.R. §§ 404.1700, et seq.; 20 C.F.R.
§§ 416.1500, et seq., nothing in the statute or in the regulations requires such legal
representation. Granger v. Finch, 425 F.2d 206, 208 (7th Cir. 1970); Fugate v.
Colvin, No. 2013-113 (WOB-CJS), 2014 WL 1168838, at *6 (E.D. Ky. Mar. 18,
2014). Instead, what is required is written notification to claimants of options for
obtaining attorney representation upon being notified of an adverse determination.
42 U.S.C. § 406(c); 20 C.F.R. §§ 404.1706, 416.1506. A review of the record here
shows plaintiff to have been provided such statutorily-required notice (Tr. 34-38,
54-60) and indeed that he secured legal representation in October 2011 (Tr. 52-53).
If a claimant has chosen to obtain counsel, he has a right to be represented by such
counsel during the administrative hearing before an ALJ. Radica v. Astrue, No.
4:08CV0458 AGF, 2009 WL 2948465, at *8 (E.D. Mo. Sept. 14, 2009). Here,
however, upon plaintiff’s waiver of his appearance at a hearing and request for
decision on the written evidence, no oral hearing was held. As such, it cannot be
said that plaintiff’s right to be represented by counsel at the administrative hearing
administrative record, including documents from the MDOC. (See Doc. Nos. 20, 29.)
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was violated. To the extent plaintiff challenges the manner and method by which
counsel withdrew from the case, such a claim does not provide a cognizable basis
for judicial review of the Commissioner’s final decision. See Russell on Behalf of
Russell v. Chater, 62 F.3d 1421 (8th Cir. 1995) (unpublished) (per curiam) (table).
The Court thus turns to the ALJ’s decision to determine whether it is
supported by substantial evidence on the record as a whole.
As noted above, the ALJ did not conduct an oral hearing in this case and
determined plaintiff’s claim on the written evidence of record. Given plaintiff’s
waiver of appearance at an oral hearing, the ALJ was permitted to proceed in this
manner. 20 C.F.R. §§ 404.948(b), 416.1448(b). In his decision, the ALJ noted
plaintiff’s alleged disability onset date of August 1, 2009, and determined his
disability insurance status to have expired September 30, 2009. The ALJ found
that plaintiff had the medically determinable impairments of depression, anxiety,
and sacroiliitis, but that they were not severe and thus could not provide a basis for
disability. For the following reasons, the ALJ did not err in this determination.
Disability is defined as the "inability 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 12 months." 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A). The Commissioner engages in a five-step
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sequential evaluation process for determining whether a claimant is disabled. 20
C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Step 1 considers whether the claimant is engaged in substantial gainful activity. If
so, disability benefits are denied. At Step 2, the Commissioner decides whether
the claimant has a “severe” medically determinable impairment or combination of
impairments, meaning that which significantly limits his ability to do basic work
activities. If the claimant's impairment(s) is not severe, then he is not disabled. If
the impairment(s) is severe, the Commissioner then determines at Step 3 whether
such impairment(s) is equivalent to one of the impairments listed in 20 C.F.R.,
Subpart P, Appendix 1. If claimant's impairment(s) meets or equals one of the
listed impairments, he is conclusively disabled. At Step 4, the Commissioner
establishes whether the claimant’s impairment(s) prevents him from performing his
past relevant work. If the claimant can perform such work, he is not disabled.
Finally, if the claimant is unable to perform his past work, the Commissioner
continues to Step 5 and evaluates various factors to determine whether the claimant
is capable of performing any other work in the economy. The claimant is entitled
to disability benefits only if he is not able to perform other work.
The ALJ here terminated the sequential analysis at Step 2 upon finding that
plaintiff’s medically determinable impairments were not severe. A severe
impairment is one that significantly limits a claimant's physical or mental ability to
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perform basic work activities and has lasted or is expected to last for a continuous
period of at least twelve months. 20 C.F.R. §§ 404.1520(a)(4), (c) and
416.920(a)(4), (c); 20 C.F.R. §§ 404.1509, 416.909. “The impairment must result
from anatomical, physiological, or psychological abnormalities which can be
shown by medically acceptable clinical and laboratory diagnostic techniques. A
physical or mental impairment must be established by medical evidence consisting
of signs, symptoms, and laboratory findings, not only by [the claimant's] statement
of symptoms.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (internal
citations and quotation marks omitted) (brackets in Martise). The claimant has the
burden of showing a severe impairment, but the burden at this stage of the analysis
“is not great.” Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001). While
establishing “severity” may not be an onerous requirement for a claimant to meet,
“it is also not a toothless standard[.]” Kirby v. Astrue, 500 F.3d 705, 708 (8th Cir.
2007).
At the time of the ALJ’s decision, the evidence of record showed that on
August 16, 2008, plaintiff went to urgent care at University Hospital with
complaints of a recent worsening of chronic pain on the left side from the low
spine down the left leg. Plaintiff was twenty-six years of age. Plaintiff reported
previous prescriptions for Flexeril not to have helped in the past but that he usually
takes Vicodin for such flare ups in pain. Physical examination showed tenderness
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to palpation from the low thoracic to the lower lumbar spine, with mild decreased
range of motion because of pain and stiffness. Straight leg raising was negative,
and plaintiff had full leg strength bilaterally. Deep tendon reflexes were decreased.
Dr. Keith Groh diagnosed plaintiff with low back pain and gave instruction as to
exercises. Dr. Groh directed plaintiff to take over-the-counter medication but also
gave him a limited amount of Vicodin for acute pain flare ups. Dr. Groh noted
medical records to give rise to concern for narcotic drug seeking behavior and
dependency. Plaintiff also reported that he had been out of Zoloft for two days and
felt a little “edgy,” but was not in crisis or having severe anxiety. Psychiatric
examination was unremarkable. Plaintiff was noted to display no overt signs of
distress or anxiety. Dr. Groh diagnosed plaintiff with depression and anxiety and
prescribed Zoloft. (Tr. 230-32.)
On August 18, 2008, plaintiff went to Boone Hospital Center with
complaints of having a panic attack while at work. Plaintiff reported that he had
run out of medication. Plaintiff became calmer while in the emergency room.
With respect to physical complaints, plaintiff reported that weather changes
worsened his pain but that he was currently doing okay. Plaintiff’s past medical
history was noted to include ankylosing spondylitis, anxiety, depression, PTSD,
and chronic low back pain. Plaintiff’s medications were noted to include Zoloft,
Xanax, and Vicodin. Examination showed plaintiff to be anxious but was
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otherwise normal. Plaintiff was given Ativan and was discharged in stable
condition. Plaintiff’s diagnosis upon discharge was acute anxiety reaction.
Plaintiff was instructed to take Xanax as directed for anxiety. Plaintiff was also
instructed to follow up with Dr. Silney as soon as possible. (Tr. 207, 213-14.)
Plaintiff returned to urgent care at University Hospital on August 27, 2008,
with continued complaints of left lower back and leg pain, and new complaints of
pain in the right upper chest and back. Physical examination showed tenderness to
palpation about the left lower back with limited range of motion. Plaintiff had
good strength about the lower extremities. He was continued in his diagnosis of
chronic low back pain and was prescribed Ultram. Dr. Phu Tran instructed
plaintiff to follow up with his primary care physician and with a pain clinic for
further evaluation. (Tr. 228-29.)
On September 27, 2008, plaintiff visited the emergency room at Boone
Hospital Center in an anxious state because he missed his appointment and did not
get refills of his medications. Examination was otherwise normal. Plaintiff was
given Ativan in the emergency room and was prescribed Zoloft and Ativan upon
discharge. Plaintiff was diagnosed with anxiety and depression and was
discharged in improved condition. (Tr. 206, 211-12.)
Plaintiff visited Dr. Sandesh Pandit at the Family Medicine Clinic at
University Hospital on September 24, 2008. Plaintiff reported having previously
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seen Dr. Daniel Vinson and that he was currently seeing a rheumatologist regularly
for ankylosing spondylitis, with an upcoming appointment noted to be scheduled
on October 1. Plaintiff also reported that he was in the process of establishing care
with a psychiatrist. Physical examination was unremarkable. Straight leg raising
was negative. Psychiatric examination showed plaintiff’s affect to be flat but was
otherwise unremarkable. Dr. Pandit noted plaintiff’s past medical history to
include ankylosing spondylitis, depression, PTSD, and anxiety. Dr. Pandit gave
plaintiff a one-month supply of medication to carry him through until he was able
to meet with a psychiatrist. Dr. Pandit also emphasized to plaintiff that he keep his
appointment with the rheumatologist. (Tr. 225-27.)
After this examination by Dr. Pandit, the medical record is silent until
February 2010 at which time plaintiff was incarcerated and received medical care
from the MDOC. The record shows plaintiff to have received such care for a
period from February 2010 to July 12, 2010. (Tr. 237-64, 320.) During this
limited period, plaintiff complained of joint pain and back pain for which he was
prescribed Neurontin. Adjustments were made to this medication in response to
plaintiff’s complaints of increased pain. It was noted that an x-ray taken in January
2010 showed sacroiliac sclerosis suggestive of sacroiliitis, and plaintiff was
diagnosed with varying forms of low back pain due to sacroiliitis. Plaintiff never
demonstrated any limited range of motion, or any difficulty with ambulation or
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with getting up and down. In March, plaintiff was provided a lay-in restriction and
was instructed not to lift in excess of twenty pounds. It was opined that plaintiff
could work with such restriction. Throughout April, plaintiff failed to appear for
appointments with healthcare providers and repeatedly refused to take prescribed
medication, and specifically Thorazine, because it made him feel sick. An intramuscular injection of Depo-Medrol was administered in May, and plaintiff was
prescribed Meloxicam. Plaintiff was released from custody on July 12, 2010. No
medications were provided to him upon his release.
After his release from prison, plaintiff visited the emergency room at Boone
Hospital Center on July 14, 2010. Plaintiff reported that he had moved from
Oregon two days prior and left his medications in Oregon. Plaintiff requested
refills of Zoloft and Xanax. Plaintiff also complained of pleuritic chest pain.
Plaintiff’s past medical history was noted to include PTSD, arthritis, and panic
attacks. Examination showed tenderness to the chest wall but was otherwise
normal. Plaintiff was prescribed Zoloft, Ativan, and Naproxen and was instructed
to follow up with a primary care physician and psychiatrist. (Tr. 208-10.)
Plaintiff visited Dr. Amy Williams at the Family Medicine Clinic on July 19,
2010. Plaintiff reported a history of depression for which he took Zoloft and that
the medication provided good control. Plaintiff also reported a history of low back
pain for which he took Celebrex, glucosamine, Motrin, Vicodin, and analgesic
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balm. Plaintiff requested refills on all such medications. Plaintiff reported that xrays taken in Oregon seven months prior showed ankylosis or sacroiliitis and that
he had been evaluated by a rheumatologist in 2005. Plaintiff also reported a recent
onset of left shoulder pain, which improved with movement. Plaintiff denied any
numbness or tingling. Physical examination showed normal range of motion with
normal strength, no tenderness, and no swelling. Psychiatric examination showed
plaintiff to be cooperative. Dr. Williams diagnosed plaintiff with low back pain
and left shoulder pain and referred plaintiff to the orthopedic clinic for evaluation.
Dr. Williams determined plaintiff’s back pain to be stable, noting there to be little
evidence for a diagnosis of ankylosing spondylitis. Tramadol, Naproxen, and
Celebrex were prescribed. Dr. Williams reported that she does not prescribe
narcotic medication on first visits and counseled plaintiff as to the need to taper off
of pain medications and get a solid diagnosis. Dr. Williams offered a referral to
the rheumatology clinic, but plaintiff declined. Plaintiff was also diagnosed with
depression and anxiety, which were determined to be stable. Zoloft and Xanax
were prescribed. (Tr. 219-23.)
Plaintiff was again incarcerated at the MDOC beginning July 30, 2010,
whereupon he received medical care through February 2011. (Tr. 235-36, 264319.) Upon his re-incarceration, plaintiff underwent a physical examination during
which he denied having any musculoskeletal issues. It was noted that plaintiff’s
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extremities were strong. Plaintiff’s behavior was appropriate with no anxiety
noted. It was determined that there was no necessity for a mental health referral
and that plaintiff would undergo routine mental health checks. In August, plaintiff
refused blood pressure medication because it caused headaches. In September,
plaintiff refused to take Lamictal because it caused a rash. Plaintiff was prescribed
Naproxen for back and neck pain during this period. Plaintiff also took
acetaminophen, Neurontin, and analgesic balm. It was noted that plaintiff’s
medication improved his symptoms and controlled his condition.
In November 2010, it was noted that plaintiff’s ability to bend at the waist
was limited to thirty to forty-five degrees, and straight leg raising was restricted. A
lay-in restriction of “no snow shoveling” was imposed. Plaintiff was instructed to
apply lidocaine patches to the lumbosacral area. Plaintiff was consistently
diagnosed with chronic low back pain. In December, plaintiff requested that he be
prescribed Tramadol. Plaintiff reported a history of being diagnosed with
ankylosing spondylitis, chronic pain syndrome, chronic lumbosacral pain with
sciatica, depressive disorders, and panic attacks. Plaintiff was given consistent
diagnoses, and it was determined that lay-in was appropriate. In January 2011,
plaintiff reported that the diagnosis of ankylosing spondylitis had been given by
Dr. Vinson whom he had seen prior to incarceration. Current examination showed
marble-sized knots upon palpation to the upper lumbar area. Plaintiff was noted to
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have full range of motion about all extremities. Plaintiff was diagnosed with
arthritis. For severe pain, plaintiff was encouraged to engage in low impact
activity, such as walking, to maintain joint movement. Plaintiff was also instructed
to apply warm compresses, perform range of motion exercises, and to balance rest
and exercise. Ibuprofen was given. On February 11, plaintiff reported his pain to
be at a level five to ten on a scale of one to ten, with increased pain in his neck. No
grimacing was noted throughout the medical encounter. Plaintiff was diagnosed
with chronic back pain, and Tylenol was given.
On March 18, 2011, Mark Altomari, Ph.D., a psychological consultant with
disability determinations, completed a Psychiatric Review Technique Form in
which he reported there to be insufficient evidence relating to plaintiff’s history of
depression and anxiety upon which he could opine as to the effects of such
impairments. (Tr. 321-31.)
No other medical evidence appears in the administrative record.
On this record evidence, the ALJ determined plaintiff’s medically
determinable impairments to be sacroiliitis, depression, and anxiety, but that such
impairments, either singly or in combination, did not significantly limit (or be
expected to significantly limit) plaintiff’s ability to perform basic work activities
for twelve consecutive months. The ALJ therefore found plaintiff not to have a
severe medically determinable impairment(s) upon which disability could be
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found. (Tr. 14.) Substantial evidence on the record as a whole supports this
determination.
With respect to plaintiff’s physical impairment, the ALJ noted the report that
a January 2010 x-ray showed sacroiliitis, but that medication improved and
controlled plaintiff’s symptoms associated with this impairment. The record shows
that during his incarceration from February through July 2010, plaintiff was
prescribed Neurontin and was provided acetaminophen and analgesic cream for his
symptoms. He exhibited no limited range of motion during this period and had no
difficulty with ambulating or moving between sitting and standing. Although he
was restricted to lifting no more than twenty pounds in March, physical
examination upon his release from prison in July 2010 was normal in all respects
with normal range of motion, normal strength, and no tenderness noted. Dr.
Williams considered plaintiff’s low back pain to be stable at that time and noted
that there was not enough evidence for a “solid diagnosis.” Upon his reincarceration, plaintiff again exhibited symptoms of back pain in August 2010.
When he was given medication as previously prescribed, however, his symptoms
were noted to improve and be controlled. A restriction of “no snow shoveling”
was imposed in November upon a finding of limited range of motion about the
waist and restricted straight leg raising, but with medication therapy, plaintiff
demonstrated full range of motion in January 2011 and was given instruction as to
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appropriate exercises. Limited range of motion about the waist was noted again in
February, for which plaintiff was given only Tylenol.
Given the conservative treatment rendered for plaintiff’s sacroiliitis, with
such treatment controlling plaintiff’s symptoms, the ALJ found this physical
impairment not to be severe. The ALJ did not err in this determination. Where an
impairment is well controlled with medication, a finding of disability is precluded.
Perkins v. Astrue, 648 F.3d 892, 901 (8th Cir. 2011). See also Kirby, 500 F.3d at
708 (physical impairment not severe where medical evidence showed no exertional
difficulties and normal range of movement); Wilson v. Chater, 76 F.3d 238, 241
(8th Cir. 1996) (ALJ did not err at Step 2 of sequential analysis by finding
claimant’s medically determinable impairments not to be severe inasmuch as they
were controllable by medication and diet); Nguyen v. Chater, 75 F.3d 429, 431 (8th
Cir. 1996) (arthritis condition that improves with medication is not severe).
With respect to plaintiff’s mental impairments, the ALJ likewise noted the
record to show that medication controlled the related symptoms. Indeed, the
record shows plaintiff’s symptoms to manifest only when he ran out of his
medication and that, even then, the symptoms were minimal. In July 2010, Dr.
Williams considered plaintiff’s mental impairments to be stable. In addition, the
ALJ noted that the treatment itself was minimal, noting that plaintiff never
participated in counseling, saw a therapist, or required any hospitalization. Given
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the conservative treatment rendered for plaintiff’s anxiety and depression, with
such treatment controlling plaintiff’s symptoms, the ALJ found these mental
impairments not to be severe.3 The ALJ did not err in this determination. See
Perkins, 648 F.3d at 901; Buckner v. Astrue, 646 F.3d 549, 556-57 (8th Cir. 2011);
Johnston v. Apfel, 210 F.3d 870, 874-75 (8th Cir. 2000) (mental impairment not
severe where exacerbation was isolated occurrence and symptoms responded to
medication).
The ALJ further found that plaintiff’s subjective complaints were
inconsistent with the record as a whole and did not support a finding that his
impairments were severe. This finding is supported by substantial evidence on the
record as a whole. As noted above, the ALJ specifically found that conservative
treatment controlled plaintiff’s impairments. See Perks v. Astrue, 687 F.3d 1086,
1092-93 (8th Cir. 2012) (conservative treatment for back pain consisted of
medication only, which was effective); Clevenger v. Social Sec. Admin., 567 F.3d
971, 976 (8th Cir. 2009) (appropriate credibility determination included finding
that claimant was “overall improved” after taking pain medication); Brace v.
Astrue, 578 F.3d 882, 885-86 (8th Cir. 2009) (evidence showed that, when taken,
medication was successful in controlling mental illness); Black v. Apfel, 143 F.3d
3

The ALJ also analyzed plaintiff’s mental impairments under the sequential analysis required by
20 C.F.R. §§ 404.1520a, 416.920a and concluded that plaintiff’s mental impairments resulted in
no limitations in all relevant domains of functioning and caused no episodes of decompensation
of extended duration, and thus were not severe under the regulations. (Tr. 17.)
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383, 386-87 (8th Cir. 1998) (conservative course of treatment inconsistent with
complaints of debilitating pain). The ALJ also noted plaintiff’s activities of daily
living to include cleaning, doing laundry, and making daily visits to the library and
that plaintiff reported talking to his girlfriend every other day and being able to go
places without the need to be accompanied by someone. The ALJ also noted that
plaintiff’s claim that he had difficulty paying attention for sustained periods was
contrary to his reported ability to manage his finances, which included paying bills,
using a checkbook, and managing a savings account; as well as his stated hobbies
of reading, writing, and studying biology, history, and law.4 Such activities are
inconsistent with allegations of disability due to physical and mental impairments.
Perks, 687 F.3d at 1092-93; Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir.
2010).
Finally, the ALJ noted plaintiff’s statements themselves to be inconsistent,
noting that plaintiff reported to healthcare providers during his incarceration that
he previously abused drugs while on other occasions he reported that he had no
history of such abuse. In addition, the record shows that subsequent to his release
from prison, plaintiff reported to his healthcare providers that he had recently been
in “Oregon” where he had received medical care, when in fact plaintiff had been in
prison. Such inconsistency in a claimant’s statements provides a valid reason to
4

A review of the record shows the ALJ’s summary of plaintiff’s activities to have been taken
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discredit his subjective complaints. E.g., Ply v. Massanari, 251 F.3d 777, 779 (8th
Cir. 2001).
Accordingly, in a manner consistent with and as required by Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted), the
ALJ considered plaintiff’s subjective complaints on the basis of the entire record
and set out numerous inconsistencies that detracted from his credibility. Because
the ALJ’s determination not to credit plaintiff’s subjective complaints is supported
by good reasons and substantial evidence, the Court defers to this determination.
Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012); Goff v. Barnhart, 421
F.3d 785, 793 (8th Cir. 2005); Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir.
2005). Because good reasons support his credibility determination, the ALJ’s
decision is accorded deference even if, as plaintiff contends, every Polaski factor is
not discussed in depth. Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001).
To the extent plaintiff claims that the ALJ failed to consider the severity of
his other impairments, and specifically, cervical spondylosis, stenosis,
radiculopathy, rotoscoliosis, ulcerative colitis, and substance abuse disorder, a
review of the evidence in the administrative record shows such claimed conditions
not to be medically determinable impairments. Plaintiff was never diagnosed by
any healthcare provider with these impairments, nor are there any recorded signs or
from the Function Report completed by plaintiff on February 21, 2011. (Tr. 144-51.)
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laboratory findings showing such impairments. Subjective statements alone cannot
constitute a basis upon which to find the existence of an impairment. See 20
C.F.R. §§ 404.1528(a), 416.928(a). “[S]ymptoms . . . will not be found to affect [a
claimant’s] ability to do basic work activities unless medical signs or laboratory
findings show that a medically determinable impairment(s) is present.” 20 C.F.R.
§§ 404.1529(b), 416.929(b). See also 20 C.F.R. §§ 404.1508, 416.908 (to be
considered as a basis for disability, a physical impairment “must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, not only
by [a claimant’s] statement of symptoms.”). Accordingly, because the record
shows these claimed impairments not to be medically determinable impairments,
the ALJ did not err by failing to consider their severity.
Coupled with this argument, plaintiff contends that the ALJ failed to fulfill
his duty to develop the record – as demonstrated by the ALJ’s repeated reference
to the “sparse record” – and that further development of the record would have
shown additional impairments, additional treatment, and opinion evidence
rendered by long term treating physicians. Plaintiff argues that the ALJ’s duty to
develop the record was heightened in this case given his lack of representation by
counsel. Although the ALJ bears the responsibility to develop the record fairly and
fully, the claimant ultimately bears the burden of proving disability and providing
medical evidence as to the existence and severity of an impairment. Kamann v.
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Colvin, 721 F.3d 945, 950 (8th Cir. 2013). “[A]n 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.” Id. (internal
quotation marks and citation omitted).
The record here contains medical evidence as secured by the SSA upon the
information provided by plaintiff regarding his medical care and healthcare
providers. Pursuant to 20 C.F.R. §§ 404.1512(d), 416.912(d), plaintiff’s medical
record was developed for the relevant period, and it provided sufficient evidence
upon which the ALJ could determine plaintiff’s medically determinable
impairments and from which he could conclude that they were not severe, as
discussed above. Plaintiff’s cursory claim otherwise fails.
To the extent plaintiff claims that the ALJ failed to assess his RFC, and erred
by failing to make findings regarding his past relevant work and by failing to elicit
testimony from a vocational expert, such claimed errors are without merit
inasmuch as the ALJ determined plaintiff not to be disabled at Step 2 of the
sequential analysis, and such determination is supported by substantial evidence on
the record as a whole. An ALJ does not assess a claimant’s RFC nor consider past
relevant work and/or vocational expert testimony until Steps 4 and 5 of the
analysis. See Brown v. Barnhart, 390 F.3d 535, 538-39 (8th Cir. 2004); Banks v.
Massanari, 258 F.3d 820, 827 (8th Cir. 2001).
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Finally, to the extent plaintiff claims that the ALJ erred by failing to
consider the MDOC’s determination of disability, the undersigned first notes that
no determination of disability from the MDOC or from any other agency appears
in the administrative record. In addition, a finding of disability by an agency other
than a designated State agency or the Social Security Administration is not binding
on the Commissioner. 20 C.F.R. §§ 404.1504, 416.904.
The undersigned has considered plaintiff’s request to remand this matter to
the Commissioner for consideration of the additional evidence submitted to the
Court in support of plaintiff’s claims. The undersigned has reviewed the additional
documents (see Doc. Nos. 20, 29) and denies this request. To remand this case to
the Commissioner for consideration of new evidence, the new evidence must be
material and the claimant must show good cause for his failure to incorporate such
evidence into the record in the prior proceeding. Jones v. Callahan, 122 F.3d
1148, 1154 (8th Cir. 1997). In addition, the new evidence must be relevant and
probative of the claimant’s condition for the time period for which benefits were
denied, and “it must be reasonably likely that the Commissioner’s consideration of
this new evidence would have resulted in an award of benefits.” Id. Of the 146
pages of additional documents submitted by plaintiff, the only arguable medical
evidence contained therein consists of records from the MDOC that set out varied
lay-in restrictions from January through March 2009, September 2009 to
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September 2010, and November 2010 to March 2014, while plaintiff was
incarcerated. (See Doc. 20-1, pp. A4-A24.) To the extent these records involve
the time period for which benefits were denied, plaintiff has failed to show good
cause for his failure to incorporate these records in the prior proceeding before the
ALJ or Appeals Council. In addition, plaintiff cannot demonstrate that such
evidence would have provided a basis upon which the Commissioner could award
benefits, inasmuch as a claimant is not eligible for SSI for any month throughout
which he is a resident of a public institution, such as a prison, Cook v. Astrue, 629
F. Supp. 2d 925, 929 n.3 (W.D. Mo. 2009) (citing 20 C.F.R. § 416.211); nor is he
eligible to receive DIB for any month during which he is confined in a penal
institution or correctional facility for conviction of a felony, 20 C.F.R.
§ 404.468(a). In the circumstances of this case, therefore, remand to the
Commissioner for consideration of the additional material submitted by plaintiff
would not be appropriate.
Accordingly, for the reasons set out above on the claims raised by plaintiff
on this appeal, the ALJ’s determination that plaintiff was not under a disability
from August 1, 2009, through the date of the decision is supported by substantial
evidence on the record as a whole, and plaintiff’s claims of error are denied.
Therefore,
IT IS HEREBY ORDERED that the final decision of the Commissioner is
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affirmed, and plaintiff’s Complaint is dismissed with prejudice.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 30th day of October, 2014.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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