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Pastor v. Colvin

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

July 30, 2014

TAMMY R. PASTOR, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


JEROME T. KEARNEY, Magistrate Judge.

Plaintiff Tammy Pastor appeals the final decision of the Commissioner of the Social Security Administration (Commissioner) denying her claims for disability insurance benefits (DIB) and supplemental security income (SSI) based on disability.[1] She alleges disability due to asthma, scoliosis, high blood pressure, bladder problems, infection of the spine, and anxiety. Both parties have submitted appellate briefs, and the case is ready for decision. The only issue before the Court is whether the Commissioner's decision that Plaintiff is not disabled within the meaning of the Social Security Act is supported by substantial evidence. For the reasons outlined below, the decision of the Commissioner is affirmed.

Procedural History

Plaintiff protectively filed for benefits on September 15, 2010, alleging a disability onset date of March 2, 2010. Disability Determination Services (DDS) denied the claims initially and upon reconsideration. Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ). Following the hearing, the ALJ issued a decision that Plaintiff was not disabled. The Appeals Council declined review, making the ALJ's decision the final decision of the Commissioner. Plaintiff timely filed her civil action.

Administrative Proceedings

Plaintiff was twenty-seven years old at the time of the administrative hearing. She completed the eleventh grade and did not obtain a GED. The ALJ considered Plaintiff's impairments by way of the required five-step sequential evaluation process[2] and found that she had the severe[3] impairments of degenerative joint disease of the cervical spine, juvenile apophysitis, scoliosis, and obesity but did not have an impairment or combination of impairments that met or medically equaled a listing. In assessing Plaintiff's credibility, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms but that her statements concerning the intensity, persistence, and limiting effects of those symptoms were not credible to the extent they were inconsistent with the residual functional capacity (RFC) to perform unskilled light work. The ALJ found Plaintiff could perform her past work as a telephone solicitor and insurance secretary. Thus, he concluded that Plaintiff was not disabled.

Standard of Review

The standard of review in this case is whether there is substantial evidence in the record as a whole to support the decision. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g). Substantial evidence is "less than a preponderance, but sufficient for reasonable minds to find it adequate to support the decision." Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)). In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner's decision and evidence that supports the decision; but, the decision cannot be reversed, "simply because some evidence may support the opposite conclusion." Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).


First, Plaintiff argues the ALJ failed to fully and fairly develop the record and apply the special technique[4] to evaluate her anxiety disorder. She contends that the ALJ failed to develop medical evidence related to her anxiety, which was being treated with medication, and erred at step two by failing to find her anxiety to be a severe impairment. The Commissioner asserts that the special technique was not required here because Plaintiff failed to establish anxiety as a severe impairment.

The ALJ bears the responsibility to develop the record fairly and fully. Byes v. Astrue, 687 F.3d 913, 915-16 (8th Cir. 2012). "Failing to develop the record is reversible error when it does not contain enough evidence to determine the impact of a claimant's impairment on [her] ability to work." Id. at 916. There is no bright line test for determining whether the ALJ has fully and fairly developed the record; that determination is made on a case-by-case basis. See Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994). "The 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." Halverson v. Astrue, 600 F.3d 922, 933 (8th Cir. 2010) (internal quotations and citations omitted). "[The] ALJ is permitted to issue a decision without obtaining additional medical evidence as long as other evidence in the record provides a sufficient basis for the ALJ's decision." Warburton v. Apfel, 188 F.3d 1047, 1051 (8th Cir. 1999) (quoting Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994); Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994)).

Further, at step two of the sequential evaluation process, the ALJ determines whether the claimant has a severe impairment or combination of impairments that lasted or is expected to last for at least twelve months. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A medically determinable impairment is "severe" if it more than minimally affects the claimant's ability to perform basic work activities. The impairment "must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques... and 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). A mental impairment is not severe if it results in no episodes of decompensation and no more than mild limitations in the areas of maintaining concentration, persistence and pace; social functioning; and activities of daily living. 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1).

Although severity is not an onerous requirement, it is also not a toothless standard. Kirby v. Astrue, 500 F.3d 705, 708 (8th Cir. 2007). The claimant bears the burden of establishing that her impairment is severe. Id. at 507.

In the present case, the ALJ's decision omitted a discussion of whether Plaintiff's anxiety was a severe impairment at step two. He also did not discuss the special technique that is required when mental impairments are present. 20 C.F.R. § 404.1520a(a); Cuthrell v. Astrue, 702 F.3d 1114, 1117 (8th Cir. 2013). Although the ALJ technically erred at step two by not labeling Plaintiff's anxiety as "non-severe" and failing to discuss the special technique, this is harmless error. Cuthrell, 702 F.3d at 1118. An ALJ is not required to find a severe impairment simply because a claimant has received a diagnosis. See Buckner v. Astrue, 646 F.3d 549, 557 (8th ...

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