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Passmore v. Social Security Administration

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

July 19, 2018

MICHAEL W. PASSMORE, PLAINTIFF
v.
SOCIAL SECURITY ADMINSTRATION, DEFENDANT

          RECOMMENDED DISPOSITION

         This 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 this Recommendation.

         If no 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 lost.

         REASONING FOR RECOMMENDED DISPOSITION

         Michael 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 decision.

         I. The Commissioner's Decision:

         The ALJ 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).

         Mr. 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).

         II. Discussion:

         The 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).

         Mr. 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.

         A. Development of the Record

         Mr. 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).

         Mr. 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 Cir. 2000).

         The ALJ 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 ...


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