Johnson v. Astrue

Filing 22

ORDER affirming decision of the Administrative Law Judge. (Schroeppel, Kerry)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CARMEN E. JOHNSON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 10-1293-W-RED-SSA

ORDER
Plaintiff Carmen E. Johnson (“Plaintiff”) seeks judicial review of the Commissioner’s
denial of her request for supplemental security income under Title XVI. Plaintiff has exhausted
all of her administrative remedies, and judicial review is now appropriate. After carefully
reviewing the record, the Court hereby AFFIRMS the decision of the Administrative Law Judge
(the “ALJ”).1
BACKGROUND
The parties present complete facts and arguments in their briefs. The ALJ’s decision also
sets forth comprehensive findings of fact and conclusions of law. The parties’ facts and arguments
and the ALJ’s findings and conclusions are repeated herein only as necessary to explain the Court’s
decision.
LEGAL STANDARD

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Because the Court finds that substantial evidence supports the ALJ’s decision and that the
ALJ applied the correct standard of law, the Court adopts much of Defendant’s brief without
quotation or citation.

The Court’s review is limited to determining whether the Commissioner applied the correct
standard of law and whether the Commissioner’s findings of fact are supported by substantial
evidence on the record as a whole. See 42 U.S.C. §§ 405(g) and 1383(c)(3); Warburton v. Apfel,
188 F.3d 1047, 1050 (8th Cir. 1999). Substantial evidence is relevant evidence that a reasonable
mind would accept as sufficient to support the Commissioner’s conclusion. See Warburton, 188
F.3d at 1050. In making this determination, the Court considers evidence that detracts from the
Commissioner’s decision as well as evidence that supports it. See id. The Court may not reverse
the Commissioner’s decision merely because substantial evidence supports a different result. See
Pierce v. Apfel, 173 F.3d 704, 706 (8th Cir. 1999). This is true even if the Court might have
weighed the evidence differently and reached a different result if a de novo review were applied.
Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001).
To receive disability benefits a claimant must show: (1) a medically determinable physical
or mental impairment that has lasted, or can be expected to last, for not less than twelve months; (2)
an inability to engage in any substantial gainful activity; and (3) the inability results from the
impairment. See 42 U.S.C. §§ 423 (d)(1)(A), (d)(2); see also Timmerman v. Weinberger, 510 F.2d
439, 442 (8th Cir. 1975). The Court reviews the ALJ’s decision to determine whether the ALJ
followed the Commissioner’s implementing regulations, which set out a five-step, burden-shifting
process for determining whether the claimant has a “disability” within the meaning of the Social
Security Act.
The five steps are: (1) whether the claimant is currently engaging in “substantial gainful
activity,” (2) whether the claimant is severely impaired, (3) whether the severe impairment is, or is
comparable to, a listed impairment precluding substantial gainful activity as a matter of law, (4)

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whether the claimant, with her current Residual Functional Capacity (“RFC”) can meet the demands
of her past work, and if not; (5) whether the claimant retains the capacity to perform any other work
that exists in significant numbers in the economy. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987) (discussing the five-step analysis). In the first four steps, the
burden is on the claimant to prove that she is disabled. If the claimant is not able to perform her past
work, the burden shifts to the Commissioner to prove that there are jobs in the national economy that
the claimant can perform, although the ultimate burden of persuasion remains with the claimant.
See Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004); see also Barnhart v. Thomas, 540
U.S. 20, 24, 28 (2003) (noting that the existence of jobs in the national economy must be proved
only at step five).
ANALYSIS
Plaintiff sets forth two arguments in support of her allegation that the ALJ erred when
coming to its decision. Plaintiff first argues that the ALJ erred as it did not fully and fairly develop
the record of evidence. Plaintiff additionally argues that the ALJ determined a residual functional
capacity ("RFC") for Plaintiff which was not based on all or any of the medical evidence and by not
explaining the basis of its determination as required by Social Security Rule 96-8p.
I.

The ALJ did fully and fairly develop the evidence of record.
Plaintiff argues that the ALJ erred as it did not fully and fairly develop the evidence of

record, specifically regarding her impairments of depression and anxiety. Though the ALJ has a
duty to develop the facts fully and fairly, reversal due to failure to develop the record is only
warranted where such failure is unfair or prejudicial. Onstad v. Shalala, 999 F.2d 1232, 1234 (8th
Cir. 1993). Here, the ALJ's decision regarding Plaintiff's impairments of depression and anxiety

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have been fully and fairly developed.
First, it should be noted that Plaintiff did not include depression or anxiety as an illness,
injury, or condition which limits her ability to work on her application for benefits and, further, did
not mention her depression at her hearing. The ALJ is not obliged "to investigate a claim not
presented at the time of application for benefits and not offered at the hearing as a basis for
disability." Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008). Therefore, the ALJ was not
obligated to investigate any claims regarding Plaintiff's depression and the ALJ did fully and fairly
develop the evidence of record with regard to Plaintiff's alleged depression.
Plaintiff did not mention her anxiety in her application for benefits but, nonetheless, did
mention her anxiety at her hearing. Though the ALJ has an independent duty to develop the record
in a social security disability hearing, "'[t]he 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.'" Jones v. Astrue, 619 F.3d 963, 969 (8th Cir. 2010)(quoting
Halverson v. Astrue, 600 F.3d 922, 933 (8th Cir. 2010)). At Plaintiff's hearing she stated that her
anxiety "just comes every once in a while" and, further, that she has been prescribed medication
which helps her condition. Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004) ("If an impairment
can be controlled by treatment or medication, it cannot be considered disabling"). Furthermore,
Plaintiff's evaluation by Dr. Gerald Early on December 3, 2008, indicated that she had no gross
cognitive abnormalities. Thus, based on the medical evidence and Plaintiff's testimony, the ALJ
fully and fairly developed the evidence regarding Plaintiff's anxiety and did not need to order a
consultative psychological examination to determine Plaintiff's mental health condition.
Plaintiff additionally argues that the ALJ did not fully and fairly develop the record as

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Plaintiff did not have an opportunity to review the file prior to the hearing; the ALJ did not ask
whether Plaintiff had any objection to the evidence in the file; and as Plaintiff was unaware that she
could provide additional evidence. However, at the hearing, the ALJ advised Plaintiff that she had
a right to an attorney, even if she was unable to afford one; asked Plaintiff whether she wanted to
look at her file, to which she said "no"; advised her that he was going to admit all of the exhibits in
her file, to which she said "okay"; and, finally, asked Plaintiff whether she had any questions for the
vocational expert and whether Plaintiff "ha[d] anything else to add." The Court does not find this
argument persuasive as the ALJ gave Plaintiff the opportunity to put on her case and, further, to
retain an attorney to represent her. For these reasons, along with the reasons stated above, it is clear
that the ALJ did fully and fairly develop the evidence of record.
II.

The ALJ did not err in determining Plaintiff's RFC and did properly explain the basis
of its determination.
Plaintiff additionally argues that the ALJ determined a RFC for Plaintiff which was not based

on all or any of the medical evidence and did not explain the basis of its determination as required
by Social Security Rule 96-8p.
The ALJ's determination of Plaintiff's RFC is supported by substantial evidence of the record
as a whole. First, it should be noted that the ALJ properly assessed Plaintiff's credibility. Though
Plaintiff argues that the ALJ did not consider each Polaski factor when determining her credibility,
the ALJ's decision does not need to discuss each Polaski factor. Samons v. Astrue, 497 F.3d 813,
820 (8th Cir. 2007). Moreover, the ALJ properly discredited Plaintiff's credibility as Plaintiff's
testimony was inconsistent with the medical evidence on the record as a whole. For example,
Plaintiff testified that she had to lie down all day. But, this statement is inconsistent with the
findings of: Dr. Thomas Pham, who, on May 30, 2007, concluded that "[t]here [wa]s no limitations
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on patient's activity"; Dr. Tyler Muffly, who noted on November 22, 2008 that Plaintiff's activity
had "[n]o restrictions"; and Dr. Fariha Shafi, who also put no restrictions on Plaintiff's activity and
advised that her activity was to be "as tolerated" on October 21, 2009. Plaintiff's statement is also
inconsistent with the physical RFC assessment of Dr. Denise Trowbridge who indicated that
Plaintiff could occasionally climb a ramp or stairs, balance, stoop, kneel, and crouch. Dr.
Trowbridge further indicated that, though Plaintiff is limited, she could sit about six hours in a
workday and stand or walk at least two hours in a work day. Thus, the objective medical evidence
supports the ALJ's decision to discredit Plaintiff's credibility. For these reasons, along with the fact
that the "ALJ is in a better position to gauge credibility", the ALJ did not err when determining
Plaintiff's credibility. Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007).
An RFC calculation need only include Plaintiff's credible limitations. Tindell v. Barnhart,
444 F.3d 1002, 1007 (8th Cir. 2006). As the ALJ properly discounted Plaintiff's complaints
regarding her activity limitations, these complaints need not be a factor in the ALJ's RFC
determination. When reaching its decision regarding Plaintiff's RFC, the ALJ relied upon both
Plaintiff's credible subjective complaints and the objective medical evidence. This is clear through
the ALJ's discussion of Plaintiff's symptoms and the evidence regarding her medical visits.
Furthermore, the ALJ's RFC determination is supported by substantial evidence on the record
as a whole. For example, the ALJ's RFC determination includes almost all of Plaintiff's activity
limitations that were indicated by Dr. Trowbridge. The only limitation which Dr. Trowbridge notes
that the ALJ does not include is Plaintiff's limitations regarding crouching and crawling. Dr.
Trowbridge indicated that Plaintiff could never crouch or crawl while the ALJ concluded that
Plaintiff could occasionally crouch or crawl. However, this determination by the ALJ is also

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supported by the record as a whole. As indicated above, Plaintiff's treating physicians put no
physical limitations on her. Moreover, Plaintiff testified at her hearing that if she dropped her keys
on the floor, she would bend over and pick them up and, further, that if she was unable to find her
keys on the floor, she would try to get down on the floor and look for them. Furthermore, the ALJ,
in its RFC assessment, included Plaintiff's complaints of memory loss and, also indicated that
Plaintiff must avoid concentrated exposure to heat, which is consistent with Dr. Trowbridge's
findings and Plaintiff's subjective complaints. For these reasons, the ALJ did not err in determining
Plaintiff's RFC as her RFC assessment is supported by substantial evidence of the record as a whole.
Plaintiff also argues that the ALJ did not properly explain the basis of its determination and
cites Social Security Rule 96-8p in support of its argument. According to SSR 96-8p, "The RFC
must first identify the individual's functional limitations or restrictions and assess his or her workrelated abilities on a function-by function basis."

Here, the ALJ first sets forth his RFC

determination and follows that with a discussion supporting his determination. The Court cannot
see how this approach is in error. However, even if there was somehow an error in how the ALJ
expressed Plaintiff’s RFC, considering the fact that the RFC is supported by substantial evidence,
such error would be nothing more than a “deficiency in opinion-writing” which would not warrant
reversal. Draper v. Barnhart, 426 F.3d 1127, 1130 (8th Cir. 2005).
Plaintiff additionally argues that the ALJ should cite specific evidence supporting each of
his conclusions and describe the maximum amount of each work-related activity the Plaintiff could
perform. However, though the ALJ "shall issue a written decision that gives the findings of fact and
the reasons for the decision," 20 CFR § 404.953, "an ALJ is not required to discuss every piece of
evidence submitted, [and] an ALJ's failure to cite specific evidence does not indicate that such

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evidence was not considered." Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998). Moreover, in this

case, the ALJ does discuss evidence supporting his decision and, further, describes the maximum
amount of each work-related activity Plaintiff could perform when he states that Plaintiff "cannot
climb ladders, etc." and should "only occasionally climb stairs, etc."
CONCLUSION
For the foregoing reasons, the Court AFFIRMS the decision of the ALJ.
IT IS SO ORDERED.
DATED:

February 14, 2012

/s/ Richard E. Dorr
RICHARD E. DORR, JUDGE
UNITED STATES DISTRICT COURT

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