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Boling v. Colvin

United States District Court, E.D. Arkansas, Jonesboro Division

June 24, 2014

CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


JOE VOLPE, Magistrate Judge.

The following recommended disposition was prepared for U.S. District Judge J. Leon Holmes. A party to this dispute may object to this recommendation in writing. An objection must be specific and state the factual and/or legal basis for the objection. An objection to a factual finding must identify the finding and the evidence supporting the objection. Objections must be filed with the Clerk of the Court no later than 14 days from the date of this recommendation.[1] The objecting party must serve the opposing party with a copy of an objection. Failing to object within 14 days waives the right to appeal questions of fact.[2] If no objections are filed, Judge Holmes may adopt the recommended disposition without independently reviewing the record evidence. An objecting party who seeks to submit new, different, or additional evidence, or to obtain a hearing for that purpose, must address the following matters as part of written objections: (1) why the record before the magistrate judge was inadequate, (2) why the evidence was not presented to the magistrate judge, and (3) details and/or copies of any testimony and/or documents to be proffered at a hearing. Based on this submission, Judge Holmes will determine the need for a hearing.

Recommended Disposition

William Ray Boling seeks judicial review of the denial of his third application for social security disability benefits.[3] Boling was 19 years old when he applied for benefits. Initially, he claimed he had been disabled since he was five years old.[4] His attorney amended his onset date to correspond to his application date.[5] Boling bases disability on bipolar disorder and attention deficit hyperactivity disorder (ADHD).[6]

As a child, Boling was covered by Medicaid. He received mental health treatment for his impairments. When Boling turned 18, his Medicaid coverage expired.[7] He applied for disability benefits; that application - the second application - was denied.[8] Fourteen months later, he applied again.

The Commissioner's decision. After considering the application, the Administrative Law Judge (ALJ) determined Boling has severe impairments - bipolar disorder and ADHD[9] - but he can work at all exertional levels with certain non-exertional limitations.[10] Because a vocational expert identified work for a person with Boling's limitations, the ALJ determined that Boling is not disabled and denied the application.[11]

After the Appeals Council denied a request for review, [12] the ALJ's decision became the Commissioner's final decision for judicial review.[13] Boling filed this case to challenge the decision.[14] In reviewing the decision, the Court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.[15] This recommendation explains why substantial evidence supports the decision and why the ALJ made no legal error.

Boling's allegations. Boling maintains the ALJ should have identified borderline intellectual functioning as a severe impairment and included that limitation in the hypothetical question posed to the vocational expert. He also contends the hypothetical question should have included his problems with anger. He characterizes the ALJ's evaluation of his credibility as a backwards analysis, asserting that the ALJ had already made up his mind about credibility prior to the hearing. He claims the ALJ failed to acknowledge the Commissioner's burden at step 5 of the disability-determination process. He describes the agency proceeding as kangaroo court. For these reasons, he argues, substantial evidence does not support the ALJ's decision.

Applicable legal principles. In reviewing a decision denying an application for disability benefits, the Court must determine whether the decision is supported by substantial evidence in the record as a whole.[16] Substantial evidence is less than a preponderance, but enough that a reasonable mind would find adequate to support the decision.[17] Because Boling has no physical impairment, the Court must consider the non-exertional limitations placed on Boling's ability to work. The ALJ imposed the following limitations: (1) work where interpersonal contact is incidental to work performed, and (2) where the complexity of tasks is learned by short demonstration or requires no more than one month of experience.[18] The Court must determine whether a reasonable mind would accept the evidence as adequate to show Boling can work within these limitations.

Substantial evidence exists. An ALJ's determination about a claimant's ability to work must be supported by medical evidence; the claimant's subjective allegations are not enough to prove he is disabled.[19] Therein lies the problem for Boling. Most of his medical evidence predates his application. The remote evidence establishes diagnoses of bipolar disorder and ADHD. Boling received mental health treatment for these impairments for several years through Medicaid.

The remote evidence shows that when Boling received treatment, he did fairly well. He had problems with anger and irritability, perhaps flowing from his circumstances: a father in and out of prison, a mother with mental health and drug abuse issues, physical abuse by his mother's boyfriend, removal from his mother's home due to neglect and endangerment, and difficulty with school.[20] Those circumstances would make many children angry and irritable. Three months before he applied, his therapist reported that Boling's overall functioning had significantly improved; he experienced significantly fewer anger outbursts.[21]

The remote evidence includes evidence of intellectual functioning. Boling underwent IQ testing at age 17.[22] His scores placed him in the low average range of intellectual functioning.[23] The evaluator conducting the testing reported that attention problems did not affect his performance on the tests. The evaluator observed no problems with the ability to concentrate.[24]

Mental health experts reviewed the remote evidence and observed that treatment records reflect no severe symptoms; the records reflect significant progress with treatment.[25] According to the experts, Boling can work where interpersonal contact is incidental to work performed, e.g. assembly work; complexity of tasks is learned and performed by rote, few variables, little judgment; and supervision required is simple, direct and concrete.[26]

The recent and more probative evidence - from the application date to the decision date - shows Boling continued mental health treatment for a few months after his Medicaid coverage expired, but then stopped.[27] That treatment is the source of Boling's argument about borderline intellectual functioning. In October 2010 when Boling was 19, a new psychiatrist included borderline intellectual functioning in his ...

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