Forgason v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

KEVIN W. FORGASON PLAINTIFF

v. CIVIL NO. 22-5070

KILOLO KIJAKAZI, Acting Commissioner

Social Security Administration DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, Kevin W. Forgason, brings this action pursuant to 42 U.S.C. § 405(g), seeking

judicial review of a decision of the Commissioner of the Social Security Administration

(Commissioner) denying his claim for supplemental security income (SSI) benefits under the

provisions of Title XVI of the Social Security Act (Act). 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 application for SSI on January 7, 2010, alleging an inability

to work due to back problems, a herniated disc and a pinched sciatic nerve. (Tr. 113, 131). An

administrative hearing was held on October 21, 2011, at which Plaintiff appeared with counsel and

testified. (Tr. 31-49).

In a written decision dated February 8, 2012, the ALJ determined Plaintiff retained the

residual functional capacity (RFC) to perform a full range of sedentary work. (Tr. 18-26). The

Appeals Council declined review of the ALJ’s decision on March 25, 2013. (Tr. 1-4). Plaintiff

appealed the ALJ’s decision to this Court.

Plaintiff filed a subsequent application for SSI on March 7, 2012. (Tr. 502). After holding

an administrative hearing on July 31, 2013, the ALJ issued an unfavorable decision on October 9,

2013. (Tr. 502-509).

In a decision dated August 21, 2014, this Court remanded the case regarding Plaintiff’s

January of 2010 application back to the Commissioner for further consideration of Plaintiff’s RFC

and physical limitations. (Tr. 520-527). On December 3, 2014, the Appeals Council vacated the

ALJ's February 8, 2012, decision; consolidated Plaintiff’s January of 2010 and March of 2012

applications; and remanded Plaintiff's case back to the ALJ to issue a new decision. (Tr. 530-534).

A supplemental hearing was held on January 11, 2016. (Tr. 432-467).

On August 3, 2016, the ALJ issued an unfavorable decision. (Tr. 539-547). After Plaintiff

filed written exceptions to the ALJ’s August 3, 2016, decision, the Appeals Council consolidated

Plaintiff’s applications to include the most recent June 15, 2017, SSI application, and remanded

the case to an alternate ALJ on August 22, 2017. (Tr. 558-564). A supplemental administrative

hearing was held on October 31, 2018, and the ALJ issued an unfavorable decision on March 8,

2019. (Tr. 405-431, 585-599). The ALJ amended the March 8, 2019, decision and issued another

unfavorable decision on April 1, 2019. (Tr. 612-629). On April 28, 2020, the Appeals Council

remanded the case to the ALJ for further administrative proceedings. (Tr. 630-635). A

supplemental telephonic hearing was held on October 19, 2020, at which Plaintiff appeared with

counsel and testified. (Tr. 381-404).

By written decision dated December 8, 2020, the ALJ found that during the relevant time

period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 350).

Specifically, the ALJ found Plaintiff had the following severe impairments: degenerative disc

disease of the lumbar spine, an affective disorder, an anxiety disorder and a personality disorder.

However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff’s

impairments did not meet or equal the level of severity of any impairment listed in the Listing of

Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 350). The ALJ found Plaintiff

retained the residual functional capacity (RFC) to:

[P]erform sedentary work as defined in 20 CFR 416.967(a) except occasional

climb, balance, crawl, kneel, stoop and crouch; frequent finger, handle, reach

bilaterally; occasional foot controls bilaterally; limited to simple routine repetitive

tasks; can respond to supervision that is simple, direct and concrete; can

occasionally interact with coworkers; should not interact with the public.

(Tr. 352).

With the help of a vocational expert, the ALJ determined Plaintiff could perform work as a

cutter/paster, an addressor, and an eyeglass frames polisher. (Tr. 366).

Plaintiff then requested a review of the hearing decision by the Appeals Council, who

denied that request on February 10, 2022. (Tr. 333-338). Subsequently, Plaintiff filed this action.

(ECF No. 2). Both parties have filed appeal briefs, and the case is before the undersigned for

report and recommendation. (ECF No. 14, 16).

The Court has reviewed the entire transcript. The complete set of facts and arguments are

presented in the parties’ briefs and are repeated here only to the extent necessary.

II. Applicable Law:

The Court reviews “the ALJ’s decision to deny disability insurance benefits de novo to

ensure that there was no legal error that the findings of fact are supported by substantial evidence

on the record as a whole.” Brown v. Colvin, 825 F. 3d 936, 939 (8th Cir. 2016). 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. Biestek v. Berryhill, 139 S.Ct. 1148, 1154

(2019). We must affirm the ALJ’s decision if the record contains substantial evidence to support

it. Lawson v. Colvin, 807 F.3d 962, 964 (8th Cir. 2015). 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. Miller v. Colvin, 784 F.3d 472, 477

(8th Cir. 2015). 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, we must

affirm the ALJ’s decision. Id.

It is well established that a claimant for Social Security disability benefits has the burden

of proving his disability by establishing a physical or mental disability that has lasted at least one

year and that prevents him from engaging in any substantial gainful activity. Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. § 423(d)(1)(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). A Plaintiff must show that

his disability, not simply his impairment, has lasted for at least twelve consecutive months.

The Commissioner’s regulations require her to apply 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 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 age, education, and experience. See 20 C.F.R. § 416.920. Only if the final stage is reached

does the fact finder consider the Plaintiff’s age, education, and work experience in light of his

residual functional capacity. 20 C.F.R. § 416.920.

III. Discussion:

In his appeal brief, Plaintiff claims the ALJ’s disability decision is not supported by

substantial evidence in the record. (ECF No. 14). Plaintiff raises the following issues on appeal:

A) Whether there is legal error in the ALJ’s record development; B)There is legal error requiring

reversal where the ALJ erred at Steps Two and Three, inclusive of his PRT and/or “B” criteria

legal analysis; C) Whether the ALJ significantly erred under Polaski; D) Whether the ALJ erred

in his mental RFC determination; and E) Whether the ALJ erred in his physical RFC determination.

(ECF No. 14, p. 3). The Court will consider each of these arguments.

A. Duty to Develop the Record:

The ALJ has the duty to fully and fairly develop the record, even where the Plaintiff is

represented by counsel. If a physician's report of a claimant's limitations is stated only generally,

the ALJ should ask the physician to clarify and explain the stated limitations. See Vaughn v.

Heckler, 741 F. 2d 177, 179 (8th Cir. 1984). Furthermore, the ALJ is required to order medical

examinations and tests if the medical records presented do not provide sufficient medical evidence

to determine the nature and extent of a claimant's limitations and impairments. See Barrett v.

Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994). The ALJ must develop the record until the evidence

is sufficiently clear to make a fair determination as to whether the claimant is disabled. See Landess

v. Weinberger, 490 F. 2d 1187, 1189 (8th Cir. 1974). In addition, a claimant must show not only

that the ALJ failed to fully and fairly develop the record, but he must also show that he was

prejudiced or treated unfairly by the ALJ's failure. See Onstad v. Shalala, 999 F.2d 1232, 1234

(8th Cir. 1993).

Plaintiff claims that the ALJ erred by failing to fully and fairly develop the medical record

regarding Plaintiff’s alleged impairments and should have required additional mental and physical

consultative examinations by an acceptable medical source.1 (ECF No. 14, p. 7-13).

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Initially, the Court notes Plaintiff has failed to establish that the medical records presented

did not provide sufficient medical evidence to determine the nature and extent of his limitations

and impairments. See Barrett v. Shalala, 38 F.3d 1019 at 1023. While the ALJ has an independent

duty to develop the record in a social security disability hearing, the ALJ is not required “to seek

additional clarifying statements from a treating physician unless a crucial issue is undeveloped.”

Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).

Likewise, the ALJ is not required to order a consultative evaluation of every alleged

impairment; he simply has the authority to do so if the existing medical sources do not contain

sufficient evidence to make an informed decision. See Matthews v. Bowen, 879 F.2d 422, 424 (8th

Cir. 1989). Thus, the proper inquiry for this Court is not whether a consultative examination should

have been ordered; rather, it is whether the record contained sufficient evidence for the ALJ to

make an informed decision. See Id. The Court acknowledges that the relevant time period covers

over ten years. However, after reviewing the entire 1,747-page administrative record, the Court

finds nothing which establishes the record was inadequate for the ALJ to make his decision. The

medical record includes treating physician records; four consultative mental evaluations; four

consultative general physical examinations; numerous non-examining medical consultant

opinions, physical exam reports; objective testing to include x-rays and MRIs and case analysis.

120 C.F.R. § 404.1527 governs the evaluation of medical evidence for all claims filed before March

27, 2017, which includes Plaintiff’s application currently before the Court. Under the regulation,

“medical opinions” must come from an acceptable medical source, and only acceptable medical

sources meet the definition of a treating source for purposes of 20 C.F.R. § 404.1527(c).

Further, Plaintiff must not only show the ALJ failed to fully and fairly develop the record,

but that he was prejudiced or treated unfairly by the ALJ’s alleged failure to develop the record.

Plaintiff has made no demonstration that any further record development would have changed the

outcome of the ALJ’s determination.

Accordingly, Plaintiff has failed to demonstrate that the record was not fully developed

and that he was prejudiced by any perceived failure to develop the record.

B. Step Two and Step Three Analysis:

At Step Two, Plaintiff states the ALJ never specified what personality disorder was found

to be severe. The ALJ determined Plaintiff had a severe personality disorder and as discussed

below in the Step Three analysis discussed Listing 12.08 (personality and impulse-control

disorders). See 20 C.F.R. Part 404, Subpart P, Appendix 1. The Court does not find reversible

error with the ALJ’s Step Two.

To qualify for disability benefits at Step Three, Plaintiff must establish that his impairment

meets or medically equals a listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004).

Additionally, to meet or equal a listing, Plaintiff must prove he meets all of the specific criteria.

See Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014).

1) Listings 12.04, 12.06 and 12.08:

Plaintiff claims the ALJ improperly found his alleged mental impairments did not meet the

requirements of Listing 12.04 (depressive, bipolar, and related disorder), 12.06 (anxiety and

obsessive-compulsive disorders), or 12.08 (personality and impulse-control disorders).

In order to establish that he met listing 12.08, Plaintiff would have to establish the criteria

set out in both paragraphs A and B; to establish that he met listings 12.04 or 12.06 he would have

to establish the criteria set out in either both paragraphs A and B or the requirements of both

paragraphs A and C. See 20 C.F.R. pt. 404, subpt. P, Appendix 1, § 12.00 (A)(2).

Paragraph B of each listing provides the functional criteria to evaluate how mental

impairments limit the claimant's mental functioning. To satisfy the paragraph B criteria, the

claimant's mental impairment must result in “extreme” limitation of one, or “marked” limitation

of two, of the four areas of mental functioning: 1) understand, remember, or apply information; 2)

interact with others; 3) concentrate, persist, or maintain pace; and 4) adapt or manage oneself. See

20 C.F.R. pt. 404, subpt. P, Appendix 1, § 12.00.

Here, the ALJ specifically found Plaintiff’s mental impairments did not meet any of these

Listings because Plaintiff had no limitations in understanding, remembering or applying

information; and moderate limitations in the remaining three areas of functioning. (Tr. 351). Upon

review, the Court finds no basis for reversal on this issue. The ALJ discussed at length his findings

in support by discussing Plaintiff’s relevant medical history, functioning and testimony. Id. In all

four domains, the ALJ acknowledged Plaintiff had some level impairment, but not ever greater

than a moderate limitation. Accordingly, the Court finds substantial evidence that supports the

ALJ’s determination that Plaintiff’s mental impairments do not meet the or medically equal the

requirements of Listing 12.04, 12.06 or 12.08.

2) Listing 1.04:

Plaintiff claims that the ALJ erred in finding his spine impairment did not meet or equal

Listing 1.04 (A). (ECF No. 14, p. 18). To meet a Listing under 1.04 (A) for disorders of the spine,

requires evidence of:

Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal

stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture),

resulting in compromise of a nerve root (including the cauda equina) or the spinal

cord with:

A. Evidence of nerve root compression characterized by neuro-anatomic

distribution of pain, limitation of motion of the spine, motor loss (atrophy with

associated muscle weakness or muscle weakness) accompanied by sensory or reflex

loss and, if there is involvement of the lower back, positive straight-leg raising test

(sitting and supine).

20 C.F.R. pt. 404, subpt. P, Appendix 1, § 1.04 (A).

The ALJ found Plaintiff’s degenerative disc disease of the lumbar spine was a severe

impairment, however he determined this impairment did not meet of equal a listing. (Tr. 350). A

review of the record revealed Plaintiff has consistently, albeit sporadically, sought treatment for

lower back pain throughout the time period in question. As indicated above, to meet Listing

1.04(A), Plaintiff must show evidence of motor loss. The record revealed Plaintiff’s treatment

providers consistently noted Plaintiff had normal muscle strength and no muscle atrophy

throughout the time period in question. (Tr. 282-283, 286, 289-290, 320-321, 1263, 1368, 1396,

1409, 1436, 1492, 1662, 1703). Although Plaintiff has limitations, after thoroughly reviewing the

record, Plaintiff failed to demonstrate he meets the requirements of Listing 1.04(A). Accordingly,

the Court finds substantial evidence that supports the ALJ’s determination that Plaintiff’s spine

impairment did not meet or medically equal the requirements of Listing 1.04.

C. Subjective Allegations:

In assessing the credibility of a claimant, the ALJ is required to examine and apply the five

factors from Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). See Shultz v. Astrue, 479 F.3d 979,

983 (2007). The factors to consider are as follows: (1) the claimant's daily activities; (2) the

duration, frequency, and intensity of the pain; (3) the precipitating and aggravating factors; (4) the

dosage, effectiveness, and side effects of medication; and (5) the functional restrictions. See

Polaski, 739 F.2d at 1322.

The factors must be analyzed and considered in light of the claimant's subjective

complaints of pain. See Id. The ALJ is not required to methodically discuss each factor as long as

the ALJ acknowledges and examines these factors prior to discounting the claimant's subjective

complaints. See Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). As long as the ALJ properly

applies these five factors and gives several valid reasons for finding that the Plaintiff's subjective

complaints are not entirely credible, the ALJ's credibility determination is entitled to deference.

See Id.; Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). The ALJ, however, cannot discount

Plaintiff's subjective complaints “solely because the objective medical evidence does not fully

support them [the subjective complaints].” Polaski, 739 F.2d at 1322.

When discounting a claimant's complaint of pain, the ALJ must make a specific credibility

determination, articulating the reasons for discrediting the testimony, addressing any

inconsistencies, and discussing the Polaski factors. See Baker v. Apfel, 159 F.3d 1140, 1144 (8th

Cir. 1998). The inability to work without some pain or discomfort is not a sufficient reason to find

a Plaintiff disabled within the strict definition of the Act. The issue is not the existence of pain, but

whether the pain a Plaintiff experiences precludes the performance of substantial gainful activity.

See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).

In the present case, the ALJ fully complied with Polaski in his evaluation of Plaintiff’s

subjective allegations. (Tr. 352-365). The ALJ decision outlined Plaintiff’s subjective allegations

and noted inconsistencies between those allegations and the record. Id. For example, the ALJ

considered that while Plaintiff complained of severe pain, the recommendation for conservative

treatment, lack of objective findings, sporadic treatment and use prescribed pain management

reflect Plaintiff’s pain was not of such a frequency, intensity or duration to be disabled. The ALJ

also noted Plaintiff’s daily activities and set forth reasons for finding them not as limiting as

described by Plaintiff. While Plaintiff indicated that he required the use of a cane to ambulate, the

ALJ pointed out Plaintiff did not use an assistive device when he sought medical care/treatment,

and the medical record did not reflect that the use of an assistive device was recommended by a

treatment provider. With respect to Plaintiff’s allegations that he did not seek more consistent

medical treatment due to financial constraints, there was no evidence that Plaintiff had sought low

cost or free treatment and been denied care or that he stopped purchasing cigarettes in order to

have funds to obtain treatment. See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005) (“However,

there is no evidence Goff was ever denied medical treatment due to financial reasons.)”; see also

Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (recognizing that expenditures on non-

necessities such as cigarettes undercut a claimant’s allegation that he or she is unable to afford

medication or treatment).

In accordance with these findings, and others contained in the record, there is no basis for

reversal on this issue. See Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (deference to

the ALJ’s credibility determination is warranted if the determination is supported by good reasons

and substantial evidence).

D. RFC determination2:

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In this matter, the ALJ determined Plaintiff retained the RFC to perform sedentary work

involving occasional climbing, balancing, crawling, kneeling, stooping and crouching; frequent

fingering, handling and reaching bilaterally; occasional use of foot controls, bilaterally; limited to

simple routine repetitive tasks; the ability respond to supervision that is simple, direct and concrete;

occasional interaction with coworkers; and no interaction with the public. (Tr. 352, Finding 4).

2 The Court combined Plaintiff’s fourth and fifth claim.

Plaintiff argues the ALJ erred in this RFC determination. (ECF No. 14, p. 22-30). However, after

review, the Court finds substantial evidence supporting the ALJ's RFC determination.

Prior to Step Four of the sequential analysis in a disability determination, the ALJ is

required to determine a claimant's RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). RFC is the most a

person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). It is assessed using

all relevant evidence in the record. Id. This includes medical records, observations of treating

physicians and others, and the claimant’s own descriptions of his limitations. Guilliams v.

Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th

Cir. 2004). Limitations resulting from symptoms such as pain are also factored into the assessment.

20 C.F.R. § 404.1545(a)(3). The United States Court of Appeals for the Eighth Circuit has held

that a “claimant’s residual functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d

700, 704 (8th Cir. 2001). “Because a claimant’s RFC is a medical question, an ALJ’s assessment

of it must be supported by some medical evidence of the claimant’s ability to function in the

workplace.” Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007). However, there is no requirement

that an RFC finding be supported by a specific medical opinion. See Myers v. Colvin, 721 F.3d

521, 526-27 (8th Cir. 2013) (affirming RFC without medical opinion evidence). Furthermore, this

Court is required to affirm the ALJ's RFC determination if that determination is supported by

substantial evidence on the record as a whole. See McKinney v. Apfel, 228 F.3d 860, 862 (8th Cir.

2000).

Based upon this standard and a review of Plaintiff's records and allegations in this case, the

Court cannot find Plaintiff has demonstrated having any greater limitations than those found by

the ALJ. While Plaintiff disagrees with the ALJ’s reasoning when discussing the evidence,

Plaintiff does not point to any evidence in the record that the ALJ should have considered, but

failed to consider, in calculating Plaintiff’s RFC. The ALJ provided a thorough summary of

Plaintiff's medical records and subjective complaints in this matter. (Tr. 350-365). The mere fact

Plaintiff suffers from a number of impairments does not demonstrate he has more limitations than

those found in the RFC assessment above. In his opinion, the ALJ considered Plaintiff's alleged

impairments and discounted those he found were not credible. Id. The ALJ considered the results

of objective diagnostic tests and examination findings and discussed these in his decision. Id. The

ALJ also considered the findings of medical consultants and considered Plaintiff's testimony and

function reports in assessing his RFC. Id.

Plaintiff also contends the ALJ omitted discussion of Plaintiff’s global assessment of

functioning (“GAF”) scores between 40-51. (ECF No. 14, p. 23). However, the ALJ discussed

GAF scores and found the scores were not a reliable measure of functional ability. (Tr. 365). The

ALJ's decision to give little weight to Plaintiff's GAF scores in the record is supported by

substantial evidence because “GAF scores have no direct correlation to the severity standard used

by the Commissioner.” Wright v. Colvin, 789 F.3d 847, 855 (8th Cir. 2015) (citation omitted). As

a result, GAF scores are not given the same consideration as in the past. “[A]n ALJ may afford

greater weight to medical evidence and testimony than to GAF scores when the evidence requires

it.” Jones v. Astrue, 619 F.3d 963, 974 (8th Cir. 2010). The Court finds other evidence in support

of the ALJ's mental RFC determination is more significant than the Plaintiff's GAF scores. Based

on the foregoing, the Court finds substantial evidence supports the ALJ's RFC determination.

Plaintiff has the burden of establishing his claimed RFC. See Goff v. Barnhart, 421 F.3d

785, 790 (8th Cir. 2005) (quoting Eichelberger v. Barnhart, 390 F.3d. at 590 (8th Cir. 2004)).

Because Plaintiff has not met this burden in this case and because the ALJ's RFC determination is

supported by sufficient medical evidence, this Court finds the ALJ's RFC determination should be

affirmed.

IV. Conclusion:

Based on the foregoing, the undersigned recommends affirming the ALJ's decision, and

dismissing Plaintiff's case with prejudice. The parties have fourteen days from receipt of our

report and recommendation in which to file written objections pursuant to 28 U.S.C. §

636(b)(1). The failure to file timely objections may result in waiver of the right to appeal

questions of fact. The parties are reminded that objections must be both timely and specific

to trigger de novo review by the district court.

DATED this 31st day of May 2023.

is Cheat, Comatoce

HON. CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE

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