Garrett v. Astrue

Filing 23

MEMORANDUM AND ORDER regarding Complaint 1 filed by Michael J. Garrett. For the reasons stated, and after careful consideration of each argument presented in Plaintiff's brief, I find that the Commissioner's decision is supported by substantial evidence on the record as a whole and is not contrary to law. Judgment shall be entered by separate document providing that the decision of the Commissioner is affirmed. Ordered by Magistrate Judge F.A. Gossett. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL J. GARRETT,
Plaintiff,
V.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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4:12CV3243

MEMORANDUM AND ORDER

Plaintiff Michael Garrett claims in this Social Security appeal that the Commissioner's
decision to deny him Social Security benefits is contrary to law and not supported by
substantial evidence. The Commissioner’s decision will be affirmed.
BACKGROUND
On April 27, 2010, Plaintiff filed an applications for Social Security disability benefits
and supplemental security income, alleging that he was unable to work due to a combination
of impairments. Plaintiff’s application was denied initially and on reconsideration, and he
appealed its denial to an administrative law judge (“ALJ”).
An administrative hearing was held by video-conferencing before an ALJ on August
18, 2011. Plaintiff testified at the hearing. Janice Hastert (“Hastert”), a vocational expert
(“VE”), also testified at the hearing.
The ALJ issued an unfavorable decision on September 16, 2011, concluding that
Plaintiff is not disabled under the Social Security Act. (Tr. 7-23.)1 In reaching this
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The record contains two ALJ decisions, one dated September 9, 2011, and the other
dated September 16, 2011. (Tr. 7, 24.) The decisions appear to be identical. This Order
refers only to the September 16, 2011 decision.

conclusion, the ALJ evaluated Plaintiff’s claim by following the five-step sequential analysis
prescribed by the Social Security Regulations.2 See 20 C.F.R. §§ 404.1520. The ALJ found
that Plaintiff had the severe impairments of Asperger’s disorder and depressive disorder. (Tr.
12.) The ALJ determined that Plaintiff had the residual functional capacity (“RFC”)3 to
perform a full range of work with certain nonexertional limitations. (Tr. 14-16.)
Specifically, the ALJ concluded that Plaintiff can perform simple, routine, repetitive tasks.
(Id.) The ALJ also found that Plaintiff can work in proximity to others, but is limited to jobs
that do not require close cooperation or interaction with co-workers, and no interaction or
cooperation with the public. (Id.) The ALJ stated that Plaintiff would work best in relative
isolation. (Id.) The ALJ further concluded that Plaintiff retains the ability to maintain
attention and concentration for minimum two-hour periods at a time, accept supervision on
a basic level, and adapt to change in the work place on a basic level. (Id.)
On October 15, 2012, the Social Security Appeals Council denied Plaintiff’s request
for review. (Tr. 1-6.) Thus, the ALJ’s decision stands as the final decision of the

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The Social Security Administration uses a five-step process to determine whether
a claimant is disabled. These steps are described as follows:
At the first step, the claimant must establish that he has not engaged in
substantial gainful activity. The second step requires that the claimant prove
he has a severe impairment that significantly limits his physical or mental
ability to perform basic work activities. If, at the third step, the claimant shows
that his impairment meets or equals a presumptively disabling impairment
listed in the regulations, the analysis stops and the claimant is automatically
found disabled and is entitled to benefits. If the claimant cannot carry this
burden, however, step four requires that the claimant prove he lacks the
[residual functional capacity] to perform his past relevant work. Finally, if the
claimant establishes that he cannot perform his past relevant work, the burden
shifts to the Commissioner at the fifth step to prove that there are other jobs in
the national economy that the claimant can perform.
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006).
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RFC, or “residual functional capacity,” is “what the claimant is able to do despite
limitations caused by all of the claimant’s impairments.” Lowe v. Anfel, 226 F.3d 969, 972
(8th Cir. 2000) (citation omitted).
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Commissioner of Social Security.
STANDARD OF REVIEW
A denial of benefits by the Commissioner is reviewed to determine whether the denial
is supported by substantial evidence on the record as a whole. Hogan v. Apfel, 239 F.3d 958,
960 (8th Cir. 2001) (quotation and citation omitted). “Substantial evidence” is less than a
preponderance, but “enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion. Id. at 960-61 (quotation and citation omitted). Evidence that
both supports and detracts from the Commissioner’s decision must be considered, but the
decision may not be reversed merely because substantial evidence exists for a contrary
outcome. See Moad v. Massanari, 260 F.3d 887, 890 (8th Cir. 2001).
DISCUSSION
Plaintiff maintains that the ALJ erred by failing to “discuss the evidence in the record
of [Plaintiff’s] low level of intellectual functioning.” (Filing 17 at CM/ECF p. 11.) Plaintiff
primarily argues that the hypothetical question posed to the VE was defective because it
failed to include all of Plaintiff’s limitations and account for Plaintiff’s intellectual
deficiencies. Having carefully considered Plaintiff’s arguments, and having thoroughly
reviewed the record in this case, the Court finds that the ALJ’s decision is supported by
substantial evidence on the record as a whole.
I.

Plaintiff’s RFC Assessment

Although not completely clear from Plaintiff’s briefing, it appears that Plaintiff argues
that the ALJ improperly assessed his RFC by failing to consider his intellectual limitations.
In formulating an individual’s RFC, an ALJ should consider “all the relevant evidence,
including the medical records, observations of treating physicians and others, and an
individual’s own description of his limitations.” Lacroix v. Barnhart, 465 F.3d 881, 887 (8th
Cir. 2006) (quotation and citation omitted). In determining Plaintiff’s RFC, the ALJ
considered three medical opinions, as well as Plaintiff’s treatment records, daily activities,
and other opinion testimony. The ALJ also considered Plaintiff’s statements regarding his
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limitations. The ALJ’s RFC finding is well-developed and supported by the record.
The medical evidence of record, which was thoroughly discussed by the ALJ in his
opinion, supports the ALJ’s RFC assessment. The ALJ considered, and placed great weight
upon, the opinions of three psychologists. Dr. Rebecca Schroeder, who performed a
consultative examination on Plaintiff in June, 2010, observed that Plaintiff is capable of
understanding simple instructions, and sustaining the concentration needed for simple task
completion. (Tr. 346.) Dr. Schroeder further opined that Plaintiff “appears capable of
carrying out direction under ordinary supervision once he is comfortable with his job” and
“seems capable of adapting to changes within his environment.” (Id.) Dr. Schroeder noted
that Plaintiff was cooperative during her exam, had no difficulty responding to simple or
complex questions, and had fair to good communication skills. (Tr. 344.) Dr. Linda
Schmechel, who reviewed Plaintiff’s file, likewise found that Plaintiff can understand
instructions and does not have great difficulties in sustained concentration. (Tr. 297.)
Consultant Dr. Rebecca Braymen similarly concluded that Plaintiff’s conditions create
moderate limitations in functioning. (Tr. 332.) The ALJ’s RFC determination is consistent
with the opinions of these three psychologists.
The ALJ’s RFC evaluation is further supported by Plaintiff’s medical records, which
indicate that Plaintiff has received little treatment for his impairments. Plaintiff’s medical
records show that in June, 2006, Plaintiff was seen by a general practitioner who diagnosed
Plaintiff with Asperger’s Syndrome and depression. At that time, the physician prescribed
several medications. Despite this diagnosis, there are no medical treatment records for the
period of June, 2006 through June, 2011. Also, as the ALJ noted, it does not appear that
Plaintiff has sought treatment from a psychiatrist or other counseling to treat his depression.
See Williams v. Sullivan, 960 F.2d 86, 89 (8th Cir. 1992) (finding that absence of treatment
suggests that impairments are not disabling). Plaintiff’s treatment history indicates that
Plaintiff is able to reasonably function despite his conditions.
Plaintiff’s testimony also supports the ALJ’s conclusion that Plaintiff’s impairments
are not as severe or limiting as he claims. In finding Plaintiff not credible, the ALJ
considered, among other things, Plaintiff’s testimony regarding his daily activities and work
history. The ALJ noted that Plaintiff is participating in a program through his high school
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which is designed to help Plaintiff learn job and independent living skills. (Tr. 15-16.)
Further, the ALJ cited Plaintiff’s testimony that he frequently plays video games which
indicates that he is able to concentrate for sustained periods of time. (Id.) With respect to
social functioning, the ALJ noted that Plaintiff was recently employed as a door greeter at
Wal-Mart as part of his school program. (Id.) Based on this testimony, the ALJ found that
Plaintiff’s testimony regarding his ability to concentrate and the degree of his social anxiety
was not credible. See Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001) (“Acts which
are inconsistent with a claimant’s assertion of disability reflect negatively upon that
claimant’s credibility”).
The ALJ is responsible for assessing the credibility of a claimant’s subjective
testimony about his or her limitations. See Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir.
2003). “If an ALJ explicitly discredits the claimant’s testimony and gives good reason for
doing so, we will normally defer to the ALJ’s credibility determination.” Id. at 714 (citation
omitted). In this case, the ALJ pointed to substantial evidence in the record supporting his
decision to discount Plaintiff’s allegations.
It is clear that in formulating Plaintiff’s RFC, the ALJ considered all relevant
evidence, including, but not limited to, medical opinions, treatment records, and Plaintiff’s
own testimony. From his decision, it is apparent to the Court that the ALJ considered how,
if at all, Plaintiff is limited by intellectual impairments. Still, in any event, “[i]n denying
disability, the ALJ does not have to discuss every piece of evidence presented.” Miller v.
Shalala, 8 F.3d 611, 613 (8th Cir. 1993). Rather, the ALJ must only develop the record fairly
and fully. Id. See also Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (“An ALJ’s failure
to cite specific evidence does not indicate that such evidence was not considered”). Here,
the ALJ fully developed the record and considered all relevant evidence, including opinions
regarding Plaintiff’s ability to concentrate and follow instructions. The ALJ’s RFC
assessment is supported by substantial evidence and any argument that the ALJ improperly
arrived at Plaintiff’s RFC is without merit.
II.

Hypothetical Question to the Vocational Expert

Plaintiff’s assertion that the hypothetical question posed to the VE was defective
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likewise lacks merit. “A hypothetical question posed to the vocational expert is sufficient
if it sets forth impairments supported by substantial evidence in the record and accepted as
true.” Perkins v. Astrue, 648 F.3d 892, 901-02 (8th Cir. 2001) (quotation and citation
omitted). “The ALJ's hypothetical question to the vocational expert needs to include only
those impairments that the ALJ finds are substantially supported by the record as a whole.”
Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006) (quotation and citation omitted).
The ALJ’s hypothetical asked the vocational expert to consider an individual with an
educational background and work history identical to Plaintiff, with nonexertional limitations
that would limit the individual to simple, routine, repetitive tasks. (Tr. 59.) The hypothetical
limited the individual to jobs that do not require close cooperation and interaction with
coworkers, and no cooperation and interaction with the general public. (Id.) The
hypothetical assumed the individual retained the ability to maintain attention and
concentration for minimum two-hour periods at a time, adapt to changes in a workplace at
a basic level, and accept supervision at a basic level.4 (Id.) While not completely clear,
Plaintiff seemingly argues that the hypothetical was improper because it did not sufficiently
account for Plaintiff’s intellectual deficiencies or moderate limitations in maintaining
concentration, persistence, or pace. This argument is unpersuasive.
Hypothetical questions must “precisely describe a claimant’s impairments so that the
vocational expert may accurately assess whether jobs exist for the claimant.” Howard v.
Massanari, 255 F.3d 577, 581-82 (8th Cir. 2001) (quotation and citation omitted). However,
hypothetical questions “need not use specific diagnostic or symptomatic terms where other
description terms can adequately define the claimant’s impairments.” Id. (quotation and
citation omitted). Here, the ALJ’s hypothetical assumed that Plaintiff was able to do simple,
routine, repetitive tasks. This description sufficiently accounts for Plaintiff’s moderate
deficiencies in concentration, persistence, or pace. This description is in keeping with the
medical opinions that Plaintiff is capable of understanding and carrying out simple
instructions, able to respond to simple or complex questions, has fair to good communication
skills, and does not have great difficulties in sustained concentration. See Howard , 255 F.3d

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In response to this question, the VE testified that such a person could perform work
as a burr grinder, garment bagger, or hand bander. (Tr. 59.)
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at 582 (finding that a hypothetical concerning an individual capable of doing simple,
repetitive, routine tasks adequately captured the claimant’s deficiencies in concentration,
persistence, or pace). The ALJ included all the limitations from the RFC in the hypothetical
and, as discussed above, the RFC determination was supported by substantial evidence and
adequately captured Plaintiff’s limitations. The hypothetical question posed to the VE
included the limitations supported by the evidence in the record and supplied the VE with
information adequate to determine whether Plaintiff could perform jobs in the economy.
CONCLUSION
For the reasons stated, and after careful consideration of each argument presented in
Plaintiff’s brief, I find that the Commissioner’s decision is supported by substantial evidence
on the record as a whole and is not contrary to law.
Accordingly,
IT IS ORDERED that judgment shall be entered by separate document providing that
the decision of the Commissioner is affirmed.
DATED August 2, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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