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Kemp v. Berryhill

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

June 26, 2017

NANCY A. BERRYHILL, Commissioner, Social Security Administration DEFENDANT


         Plaintiff Marvin Kemp (“ Kemp ”) appeals the final decision of the Commissioner of the Social Security Administration (defendant “Berryhill”) to deny his claim for Supplemental Security Income (“SSI”). Kemp contends the Administrative Law Judge (“ALJ”) erred in: (1) failing to make sufficient and adequate credibility findings; (2) failing to consider the combined impact of all of his impairments; (3) failing to rely upon a vocational expert's response to a hypothetical question which encompassed all of his limitations and impairments; and (4) failing to consider and discuss, seriously, all of the evidence of his disability. Three sub arguments are made under point four: the ALJ failed to properly consider the opinions of the treating physicians; the ALJ failed to fully develop the record; and the ALJ failed to consider additional records submitted after the administrative hearing. The parties ably summarized the medical records and the testimony given at the administrative hearing, which was conducted on May 21, 2015. The Court has carefully reviewed the record to determine whether there is substantial evidence to support Berryhill's decision. 42 U.S.C. § 405(g). Although Kemp alleged his disability began on February 4, 1999, his application was protectively filed on December 11, 2011. Therefore, the proper inquiry before the Court is whether Kemp was disabled from December 11, 2011, through July 8, 2015, when the ALJ issued her decision.

         The Administrative Hearing: Kemp was 36 years old at the time of the administrative hearing. He testified he was a high school graduate, but did not have good grades. He stated he had a driver's license and drove himself to the hearing. According to Kemp, he performed “side jobs' since 1999, served some time in the military, and spent about 2 ½ years in prison prior to his release late in 2011. (Tr. 38). The ALJ noted that, for social security purposes, Kemp did not have any past relevant work.[1] Kemp stated he lived with his mother, and his daily activities consisted mainly of reading and helping around the house. He testified to being able to prepare sandwiches, dress and bathe himself, and do some sweeping and vacuuming. Kemp stated he dealt often with pain in his feet and back, stemming from his flat feet. Kemp acknowledged that foot surgery was recommended in 2002, but “I refused to because if I was born with flat feet with no arch I feel like it ain't going to do nothing but make it worse because you can't build nothing that wasn't there.” (Tr. 42). Kemp also acknowledged that Dr. Robinette, a podiatrist, recommended he get arch supports.

         In addition to the back and foot pain, Kemp testified to having muscle spasms in his neck. At the time of the hearing, Dr. Mogmo (“Mogmo”) was his treating physician, and had prescribed a back brace and a cane. The ALJ noted that Kemp had reported seeing little green men to one physician, and Kemp indicated he still sees them. Kemp said he was not seeing any mental health provider. Kemp cited the following barriers to his employment: back and foot pain, neck spasms, seeing little green men, and his education. While he had drug and alcohol problems in his past, Kemp testified to being drug and alcohol free at the hearing, and to being subjected to monthly tests for the substances. Kemp previously indicated he was diagnosed with depression in 2007 and treated with medication. He also stated he did not get along well with people, was angry, and isolated himself.

         Kemp listed the following medications: Neurontin for his nerves; Motrin for pain; Maxide for blood pressure; and Flexeril for spasms. The Flexeril was cited by Kemp as helping “a lot.” (Tr. 51). The back brace and cane help a “whole lot, ” according to Kemp. (Tr. 52). Kemp stated a side effect of the medications was drowsiness. He testified to constant pain, and stated he had taken pain medications since 2002. While in prison in the Arkansas Department of Correction, Kemp stated he was given medications and a back brace. His job while incarcerated was cleaning, and he stated he injured himself lifting items over his weight limit. (Tr. 37-62).

         A vocational expert, Mack Welch (“Welch”), testified. The ALJ asked Welch to assume a hypothetical worker of Kemp's age and background, with the ability to do light work with numerous restrictions.[2] Welch indicated such a worker could perform the jobs of hand packer and bench assembler. A second hypothetical question, assuming the worker could perform sedentary rather than light work, was posed, and Welch likewise testified that there were suitable jobs for such a worker. In response to subsequent questions, Welch stated there would be no available jobs if the worker would miss work or be late more than twice a month and required frequent unscheduled breaks, or if the worker's concentration was such that he would be off-task for at least a third of the work day. (Tr. 62-66).

         The ALJ's Decision: In her July 8, 2015 decision, the ALJ found Kemp had severe impairments of other and unspecified arthropathies, degenerative disc disease, personality disorders, and substance addiction disorders. The ALJ determined Kemp had the residual functional capacity (“RFC”) to perform light work with restrictions which mirrored those contained in her initial hypothetical question posed to Welch and listed in footnote one herein. The ALJ, citing the relevant factors, found Kemp was “not entirely credible.” (Tr. 16). In reaching this credibility conclusion, the ALJ specifically noted the absence of objective medical evidence corresponding to the subjective allegations of pain; Kemp's daily activities; the dosage, effectiveness, and side effects of medications; malingering noted by two physicians; Kemp's failure to follow medical advice to cease smoking; and the absence of any opinion by a treating physician that Kemp is disabled or has greater limitations than those contained in the RFC. The ALJ thoroughly reviewed the medical findings by both treating and consulting examiners, and also addressed the findings of the state agency physicians. In reaching her RFC conclusion, the ALJ ultimately assigned “significant weight” to the findings of Dr. Faucette, who performed a consultative mental examination, and “greater weight” to the findings of licensed psychological examiner Dr. Howell and treating physician Dr. Nguyen. She accorded only “some weight” to the findings of Dr. Pledger, who performed a consultative general physical examination, and the state agency physicians. Relying upon the testimony of Welch, the ALJ concluded Kemp was not disabled. (Tr. 11-24).

         We now address Kemp's arguments.

         Credibility determination: As previously noted, the ALJ addressed Kemp's credibility, citing the relevant factors listed in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), and SSR 96-7p, [3] which provide the following guidance on issues of credibility:

         The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:

1. the claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of ...

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