Parker v. Colvin

Filing 19

MEMORANDUM AND ORDER that the Commissioner's decision is supported by substantial evidence on the record as a whole and is not contrary to law. Accordingly, judgment shall be entered by separate document providing that the decision of the Commissioner is affirmed. Ordered by Magistrate Judge F.A. Gossett. (ADB)

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

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4:13CV3018

MEMORANDUM AND ORDER

Plaintiff Justin Lew Parker 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
In March, 2010, Plaintiff applied for benefits under Title II and Title XVI of the
Social Security Act (the “Act”), alleging that since February 28, 2008,1 he has been unable
to engage in any type of substantial and gainful work activity due to nerve damage to his left
arm; diabetes mellitus, type II, and related neuropathy; hypertension; chronic sore left foot;
arthritis; and an ulcer on his left foot. (Tr. 160.) Plaintiff’s application was denied initially
(Tr. 73-81) and on reconsideration. (Tr. 84-88.) Subsequently, he appealed the denial to an
administrative law judge (“ALJ”).
Following an administrative hearing, the ALJ issued an unfavorable decision on
January 12, 2012, concluding that Plaintiff is not “disabled” within the meaning of the Act.
(Tr. 10-20.) In his decision, the ALJ evaluated Plaintiff’s disability claim by following the

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At his administrative hearing, Plaintiff amended his onset date to February 4, 2010.
(Tr. 33-34.)

five-step sequential analysis prescribed by the Social Security Regulations.2 See 20 C.F.R.
§§ 404.1520 and 416.920. In doing so, the ALJ formulated Plaintiff’s residual functional
capacity (“RFC”)3 as follows:
[Plaintiff] has the residual functional capacity to lift and carry up to ten
pounds. He is able to stand or walk for up to two hours in an eight-hour
workday and sit for up to six hours in an eight-hour workday. He is able to
perform work that does not require more than occasional stooping, climbing,
bending, kneeling, crawling or crouching. He has full range of motion of the
left upper extremity and is able to use his arm/hand for frequent (not constant)
handling, fingering or feeling. He is able to work in an environment that does
not place him in concentrated exposure to wetness or temperature extremes of
hot or cold.

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The Social Security Administration uses a five-step process to determine whether
a claimant is disabled.
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 RFC 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) (citations omitted).
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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. Apfel, 226 F.3d 969, 972
(8th Cir. 2000) (citing 20 C.F.R. § 404.1545(a)).
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(Tr. 14.)
Plaintiff requested review of the ALJ’s decision by the Appeals Council of the Social
Security Administration. Plaintiff’s request for review was denied on November 20, 2012.
(Tr. 1-3.) Thus, the ALJ’s decision stands as the final decision of the Commissioner of
Social Security.
DISCUSSION
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). “Substantial evidence is less than a preponderance, but is 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 supports a contrary outcome. See Moad v. Massanari,
260 F.3d 887, 890 (8th Cir. 2001).
Plaintiff makes two arguments on appeal. First, Plaintiff contends that the ALJ
improperly formulated his RFC by limiting Plaintiff to “frequent” use of his left arm and
hand. Second, Plaintiff asserts that the ALJ had a duty to order additional medical
examination or testing to assist the ALJ in evaluating whether Plaintiff was, in fact, disabled
due to his arm and hand limitations or whether he had the ability to use his left arm and hand
frequently.
I.

Assessment of Plaintiff’s RFC

Plaintiff’s primary argument on appeal is that the ALJ inaccurately assessed his RFC
by concluding that Plaintiff had “frequent” use of his left arm and hand. Plaintiff claims that
there is no evidence from a treating provider that indicates that Plaintiff can use his left arm
and hand frequently and that all of the medical evidence regarding his arm and hand indicates
significant limitations. Simply put, Plaintiff argues that the ALJ failed to evaluate Plaintiff’s
claim based on the substantial evidence of record.
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The medical evidence shows that in 2006, Plaintiff was stabbed in his left shoulder.
(Tr. 320.) When he sought treatment in February 2008, the physical therapist noted Plaintiff
had some difficulties using his left arm and hand, and that he had some muscle atrophy. (Id.)
The treatment notes reflect that Plaintiff had weakness and decreased sensation in his digits
with a weak three-point pinch and inability to cylinder grip or key pinch, but that he retained
a full range of motion in his shoulder and elbow. (Id.) Plaintiff was referred to occupational
therapy at that time, however, the record does not show that Plaintiff ever pursued such
treatment.
Shelley VanHoozer (“VanHoozer”), a nurse practitioner, performed a consultative
examination of Plaintiff in April, 2010. (Tr. 248-50.) She confirmed that Plaintiff had
medial nerve damage at the left brachial plexus from a stabbing injury in 2006. (Tr. 248-49.)
VanHoozer noted that Plaintiff had moderate difficulty moving the second and third fingers
on his left hand. (Tr. 248.) VanHoozer found that Plaintiff would have “limited” use of his
left arm and hand, and that he cannot carry with the left hand. (Tr. 249-250.)
On May 11, 2010, Glen Knosp, M.D., prepared a consultative residual functional
capacity assessment, finding that Plaintiff’s left arm/hand was “limited in ability to grasp”
(Tr. 252) and that Plaintiff had “[l]imitations in handling and fingering on the left side only.”
(Tr. 254.) Dr. Knosp found that Plaintiff would be limited to light work activity, meaning
he could lift and carry 20 pounds occasionally, 10 pounds frequently, sit and stand 6 hours
out of an eight hour day and would have “limited” use of his left upper extremity. (Tr. 251258.) Dr. Knosp did not quantify the word “limited” with terms of constant, frequent or
occasional use. Dr. Knosp further noted that Plaintiff “is less than fully credible.” (Tr. 258.)
Having reviewed the matter, the Court finds that the ALJ’s RFC determination is
supported by substantial evidence on the record as a whole. As recognized by Plaintiff, no
medical provider opined as to exact limitations caused by Plaintiff’s left upper extremity, or
the extent of any such limitations. See Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996)
(finding that lack of significant restrictions imposed by treating physicians supported the
ALJ’s decision of no disability). Despite this, the ALJ recognized that Plaintiff did face
some limitations in the use of his left arm and hand, and included a limitation in Plaintiff’s
RFC to address those limitations. (Tr. 14, 17.) Specifically, after determining there was no
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medical evidence to support Plaintiff’s contention that he was completely unable to use his
left arm and hand in any meaningful capacity, the ALJ reasonably restricted Plaintiff to
frequent, but not constant, use of his left upper extremity.
The ALJ also considered Plaintiff’s credibility in formulating the RFC. At the
hearing, Plaintiff testified that he graduated from high school. (Tr. 38.) He stated that he
worked for approximately a month in January, 2011, as a slot technician, until the casino
closed. (Tr. 36, 37, 39, 41, 48.) Plaintiff further testified that he could not lift anything with
his left hand, squeeze his hand into a fist, or hold onto items. (Tr. 49.) He described his left
arm as “kind of like dead.” (Tr. 50.) As pointed out by the ALJ, however, despite Plaintiff’s
claimed limitations, he sought little medical treatment for his left arm and hand. During the
course of several years following the stabbing, Plaintiff did not report any problems to
treating providers regarding the use of his left arm or pain in the extremity. (Tr. 17.)
Moreover, although Plaintiff was referred to occupational therapy in both 2008 and 2011, he
failed to obtain this treatment. (Tr. 320, 505.) See Gray v. Apfel, 192 F.3d 799 (8th Cir.
1999) (finding that substantial evidence supported ALJ’s determination that the claimant’s
subjective complaints of pain were not credible where the claimant failed to follow through
with suggested rehabilitation treatment); Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir.
2005) (“A failure to follow a recommended course of treatment also weighs against a
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. In this
case, the ALJ pointed to substantial evidence in the record supporting her decision to
discount Plaintiff’s allegations. As such, the Court defers to the ALJ’s credibility finding.
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 her decision, it is apparent to the Court that the ALJ considered how
Plaintiff is limited by his left arm and hand. The ALJ’s RFC assessment is supported by
substantial evidence and any argument that the ALJ improperly arrived at Plaintiff’s RFC is
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without merit.
II.

Development of the Record

Plaintiff maintains that the ALJ failed to properly develop the record. Specifically,
Plaintiff claims that if the medical records presented did not give the ALJ sufficient medical
evidence to determine whether Plaintiff was disabled, she was required to order medical
examinations and tests. Plaintiff claims that the ALJ must be able to explain how she is
quantifying the level of limitation in Plaintiff’s left arm and hand. The Court finds Plaintiff’s
arguments in this regard unpersuasive.
The ALJ has a duty to develop the record fully and fairly, however, it is the claimant’s
responsibility to provide medical evidence to show that he or she is disabled. 20 C.F.R. §§
404.1512, 416.912. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006) (“Although the
record does not show why that evaluation was not completed, [the claimant] has the burden
to offer the evidence necessary to make a valid decision about her claim.”) On appeal,
reversal due to failure to develop the record is only warranted if such failure is unfair or
prejudicial. Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993).
Contrary to Plaintiff’s assertion, the ALJ was not required to obtain a medical opinion
that Plaintiff could use his left arm and hand frequently. The ALJ’s limitation to frequent use
was simply a determination that Plaintiff had failed to establish more significant limitations.
Additional examination was not essential to develop a full and fair record in this case and
Plaintiff was not prejudiced by the ALJ’s failure to order such examination.
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,

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IT IS ORDERED that judgment shall be entered by separate document providing that
the decision of the Commissioner is affirmed.
DATED November 20, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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