United States District Court, E.D. Arkansas, Western Division
MICHAEL W. PASSMORE, PLAINTIFF
SOCIAL SECURITY ADMINSTRATION, DEFENDANT
Recommended Disposition (“Recommendation”) has
been sent to Chief Judge Brian S. Miller. Any party is free
to file written objections to this Recommendation. Objections
should be specific and should include the factual or legal
basis for the objection. To be considered, objections must be
received in the office of the Court Clerk within 14 days of
objections are filed, Judge Miller can adopt this
Recommendation without independently reviewing the record. By
not objecting, any right to appeal questions of fact may be
FOR RECOMMENDED DISPOSITION
Passmore applied for social security disability benefits with
an alleged disability onset date of January 1, 2011. (R. at
158). The administrative law judge (ALJ) denied the
application after a hearing. (R. at 92). The Appeals Council
denied review. (R. at 1). Mr. Passmore filed this case
seeking judicial review of the Commissioner's adverse
The Commissioner's Decision:
found that Mr. Passmore had the following severe impairments:
diabetes mellitus, bipolar disorder, and major depressive
disorder. (R. at 82). In spite of these impairments, the ALJ
found that Mr. Passmore had the residual functional capacity
(“RFC”) to work at all exertional levels, but
could not climb ladders, ropes or scaffolds; and could not
work near hazards such as unprotected heights, moving
machinery, sharp objects, and open flames. The ALJ further
found that Mr. Passmore was limited to work where he would be
required to understand, remember, and carry out simple tasks
and instructions, and he could not perform production rate
pace work, such as assembly line work. (R. at 84).
Passmore had no past relevant work. (R. at 90). A vocational
expert (“VE”) testified that a person with the
RFC the ALJ assigned to Mr. Passmore could perform jobs such
as warehouse worker or hand packager. (R. at 91). Based on
this testimony, the ALJ found that Mr. Passmore was not
disabled. (R. at 92).
Court reviews the record to determine whether substantial
evidence on the record as a whole supports the
Commissioner's findings. Prosch v. Apfel, 201
F.3d 1010, 1012 (8th Cir. 2000). “Substantial
evidence” in this context means “enough that a
reasonable mind would find it adequate to support the
ALJ's decision.” Slusser v. Astrue, 557
F.3d 923, 925 (8th Cir. 2009) (citation omitted).
Passmore contends that the ALJ failed to fully and fairly
develop the record, erred in finding that he did not meet
listing 12.04, failed to properly evaluate his subjective
complaints, and erred in finding that his non-compliance with
treatment recommendations weighed against his testimony about
the intensity and persistence of his symptoms.
Development of the Record
Passmore first argues that the ALJ did not fully and fairly
develop the record. In his decision, the ALJ gave great
weight to the opinions of non-examining State Agency mental
health consultants; some weight to consultative examiner
Steve Shry, Ph.D.; and some weight to the opinions of Mr.
Passmore's treating therapists (R. at 88- 89).
Passmore argues that the ALJ's weighing of the opinion
evidence resulted in a lack of medical evidence to support
the mental RFC. He contends that, without the treating and
examining opinions, the mental RFC must have been based on
the non-examining State Agency consultants' opinions.
Such opinions are not entitled to great weight, and Mr.
Passmore argues that the ALJ erred in giving such weight to
them. See Singh v. Apfel, 222 F.3d 448, 452 (8th
did not entirely disregard the opinions of Dr. Shry and Mr.
Passmore's therapists from Counseling Associates. Rather,
the ALJ considered these opinions in arriving at an
appropriate RFC for Mr. Passmore, and the ALJ ...