United States District Court, W.D. Arkansas, Fort Smith Division
STEVEN R. GOSSETT, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant.
MARK E. FORD, Magistrate Judge.
Plaintiff, Steven R. Gossett, brings this action under 42 U.S.C. §405(g), seeking judicial review of a decision of the Commissioner of Social Security Administration (Commissioner) denying his claim for disability insurance benefits ("DIB"), and supplemental security income ("SSI"), under Titles II and XVI of the Social Security Act (hereinafter "the Act"), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See 42 U.S.C. § 405(g).
I. Procedural Background
Plaintiff protectively filed his applications for DIB and SSI on September 29, 2011, alleging an onset date of September 15, 2006, due to: asthma; major depression, recurrent, severe; anxiety disorder; attention deficit/hyperactivity disorder; and, low average intelligence. (T. 128-141, 166, 170) His applications were denied initially and on reconsideration. (T. 69-75, 78-81) Plaintiff requested an administrative hearing, and the hearing was held on August 20, 2012, before the Hon. Michael S. Hertzig, Administrative Law Judge ("ALJ"). (T. 82-83, 25-64) Plaintiff was present, along with his mother, Pam Cacey, and Plaintiff's family friend, Wontona Detona "Toni" Wilson. A vocational expert, Floyd J. Massey, Jr., also appeared at the hearing. Plaintiff was represented at the hearing by counsel, David K. Harp. (T. 25, 27)
Plaintiff was 37 years old at the time of the hearing. (T. 33) He graduated from high school. (T. 33) Hhe had past relevant work ("PRW") experience as a groundskeeper on a golf course, a warehouse worker, and as a production worker. (T. 58-59, 176-183) Plaintiff last worked the week before the hearing, having worked two days for a temporary job agency. (T. 36)
In a Decision issued on October 29, 2012, the ALJ found that although Plaintiff has the following severe impairments, anxiety disorder and attention deficit hyperactivity disorder (ADHD) (20 C.F.R. § 404.1520(c) and 416.920(c)), Plaintiff does not have an impairment or combination of impairments that meets or medically equals any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (T. 11-14) The ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, but with the following non-exertional limitations: understand, remember, and carry out simple one and two step instructions; occasionally interact appropriately with co-workers, supervisors, and the general public; and, maintain attention and concentration for two hour blocks of time. (T. 14-18) With the assistance of a vocational expert, Floyd J. Massey, Jr., the ALJ determined that while Plaintiff is unable to perform his past relevant work (T. 18), Plaintiff could perform the requirements of such representative occupations as a janitor or cleaner - industrial (DOT#381.687-018) of which there are 200 jobs in the region, as a kitchen helper, dishwasher (DOT#318.687-010) of which there are 1, 500 jobs in the region, and as a hand packager (DOT#920.587-918) of which there are 300 jobs in the region. (T. 19, 60-61) The ALJ then concluded that Plaintiff has not been under a disability, as defined in the Social Security Act, from February 17, 2011 through the date of the ALJ's Decision on October 29, 2012. (T. 19-20)
Plaintiff appealed this decision to the Appeals Council (T. 4), but said request for review was denied on November 29, 2013. (T. 1-3) Plaintiff then filed this action on January 23, 2014. (Doc. 1) This case is before the undersigned pursuant to the consent of the parties. (Doc. 7) Both parties have filed appeal briefs, and the case is ready for decision. (Doc. 12 and 13)
II. Standard of Review; Applicable Law
This Court's role is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind would find it adequate to support the Commissioner's decision. "Our review extends beyond examining the record to find substantial evidence in support of the ALJ's decision; we also consider evidence in the record that fairly detracts from that decision." Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). The ALJ's decision must be affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports the Commissioner's decision, the court may not reverse it simply because substantial evidence exists in the record that would have supported a contrary outcome, or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other words, if after reviewing the record it is possible to draw two inconsistent positions from the evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
A claimant for Social Security disability benefits has the burden of proving her disability by establishing a medically determinable physical or mental impairment that has lasted at least one year and that prevents her from engaging in substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). The Act defines "physical or mental impairment" as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3) and 1382(3)(c). A claimant must show that her disability, not simply her impairment, has lasted for at least twelve consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner's regulations require application of a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity since filing his or her claim; (2) whether the claimant has a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the claimant is able to perform other work in the national economy given his or her age, education, and experience. 20 C.F.R. §§ 404.1520(a)-(f)(2003). Only if the final stage is reached does the fact finder consider the claimant's age, education, and work experience in light of his or her residual functional capacity. McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520 and 416.920 (2003).
The Court must determine whether substantial evidence, taking the record as a whole, supports the Commissioner's decision that Plaintiff was not disabled from the alleged date of onset on February 17, 2011 through the date of the ALJ's Decision on October 29, 2012. Plaintiff raises four issues on appeal: (A) the ALJ did not fully and fairly develop the record; (B) Plaintiff has additional severe impairments; (C) the ALJ's RFC determination is inconsistent with the record; and, (D) Plaintiff cannot perform the jobs identified at Step Five. (Doc. 12, pp. 10-19)
A. Duty to Fully and Fairly Develop the Record
The ALJ has a duty to fully and fairly develop the record. See, Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995)(ALJ must fully and fairly develop the record so that a just determination of disability may be made). This duty exists "even if... the claimant is represented by counsel." Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.1992), quoting Warner v. Heckler, 722 F.2d 428, 431 (8th Cir.1983). The ALJ, however, is not required to act as Plaintiff's counsel. See, Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994) (ALJ not required to function as claimant's substitute counsel, but only to develop a "reasonably complete" record); see also, Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995) (reversal due to failure to develop the record is only warranted where such failure is unfair or prejudicial). There is no bright line rule indicating when the Commissioner has or has not adequately developed the record; rather, such an assessment is made on a case-by-case basis. Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994).
The need for medical evidence does not necessarily require the Commissioner to produce additional evidence not already within the record. An ALJ is permitted to issue a decision without obtaining additional medical evidence so long as other evidence in the record provides a sufficient basis for the ALJ's decision. Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001). An ALJ is not required to order a consultative evaluation; he "simply has the authority to do so if the existing medical sources do not contain sufficient evidence to make a determination." Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989); see also, Haley v. Massanari, Supra at 749 (ALJ need not order additional examinations if there is substantial evidence in the record to make an informed decision).
Plaintiff argues that the record is lacking a useful, quantifiable statement of the work activities that are limited by Plaintiff's mental impairments. The Court disagrees. Providing specific medical evidence to support his disability claim is, of course, the Plaintiff's responsibility, and that burden of proof remains on him at all times to prove up his disability and present the strongest case possible. See, Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991); 20 C.F.R. §§ 404.1512(a) and (c), 416.912(a) and (c). Considering the record as a whole in the present case, the ALJ was not required to further develop the record because it was already "reasonably complete, " and it contained sufficient evidence from which the ALJ could make an informed decision.
The record contains Plaintiff's treatment records dating back to 1993 when Plaintiff was in high school. It also includes more recent treatment records and reports of detailed evaluations concerning Plaintiff's alleged disabling physical and mental conditions. More specifically, these records include the following: a psychological evaluation report dated October 26, 1993, when Plaintiff was 18 years old and in the twelfth grade, prepared by Mary Snell, LPC (Ex. 3F; T. 229-238); a psychological evaluation report dated March 24, 1997, when Plaintiff was 22 years old, prepared by Linda K. Strawser, M.S. and approved by Morris H. Middleton, Ph.D. (Ex. 1F; T. 222-225); a psychological screening evaluation report dated February 17, 2011, when Plaintiff was 36 years old, prepared by Letitia C. Hitz, Ph.D. the Arkansas Rehabilitation Department (Ex. 2F; T. 226-228); clinic records from Plaintiff's primary care physician dating from December 2, 2003 through May 1, 2012 (Ex. 13F; T. 321-331); a psychological report dated June 7, 2011 prepared by Clayton Mitchell, Ph.D. Western Arkansas Counseling & Guidance Center ("WAC&GC") (Ex. 5F; T. 249-252); hospital records pertaining to treatment of acute asthmatic bronchitis on August 31, 2011 (Ex. 6F; T. 253-264); a case analysis report dated November 11, 2011 prepared by Jerry Thomas, M.D. (Ex. 9F; T. 288), followed by a case analysis report dated January 16, 2012 prepared by Valeria Malek, M.D. (Ex. 11F; T. 297); a mental diagnostic evaluation report dated November 28, 2011 prepared by Kathleen M. Kralik, Ph.D. (Ex. 7F; T. 265-273); a psychiatric review technique report dated December 8, 2011 prepared by Cheryl Woodson-Johnson, Psy.D. (Ex. 8F; T. 274-287); a mental residual functional capacity assessment report dated December 8, 2011 prepared by Cheryl Woodson-Johnson, Psy.D. (Ex. 10F; T. 293-296); a diagnostic evaluation report dated February 21, 2012, and a master treatment plan report dated March 23, 2012, both prepared by Steve Washington, LPC of WAC&GC (Ex. 12F, 15F; T. 303-306, 339-344); an evaluation/diagnosis report dated April 27, 2012 prepared by Alice Slavins, APN of WAC&GC (Ex. 12F; T. 307-310); and, a pharmacological management report dated August 10, 2012 prepared by Alice Slavins, APN of WAC&GC (Ex. 16F; T. 350-351). The Court does not believe that these medical records leave some crucial issue undeveloped or under-developed. To the contrary, the medical evidence of record documents in detail the evaluation and treatment of Plaintiff's physical and mental impairments for a period of nearly twenty years, and it provides a sufficient basis for the ALJ's decision. The ALJ was not, therefore, obligated to obtain even more medical evidence to develop the record further.
If Plaintiff wanted to present more specific information in addition to the medical evidence of record, he should have done so. See, Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993)("... it is of some relevance to us that the lawyer did not obtain (or, as far as ...