# Stone v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · August 1, 2023

URL: https://www.frixlaw.com/law-library/cases/10632790

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** August 1, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

AMY L. STONE o/b/o CLAIMANT
WILLIAM BART COLE, Deceased

V. Civil No. 2:22-cv-02123-PKH-MEF

KILOLO KIJAKAZI, Acting Commissioner, DEFENDANT
Social Security Administration

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Amy Stone, brings this action on behalf of the now deceased Claimant, William
Bart Cole, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the
Commissioner of Social Security Administration (the “Commissioner”) denying his claim for a
period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security
Act (hereinafter “the Act”), 42 U.S.C. § 423(d)(1)(A). 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
Cole protectively filed his application for DIB on March 15, 20181, alleging disability since
0F
September 11, 2014, due to anxiety, depression, post-traumatic stress disorder (“PTSD”), anger
issues, allergies, skin problems, and pain. (ECF No. 11, pp. 74, 92, 113-126, 259-262, 295, 312-
313). Born on May 26, 1969, he was 50 years old on his date last insured (“DLI”) and possessed
the equivalent of a high school education. (Id. at 29, 296). Cole had past relevant work (“PRW”)
experience as a diesel mechanic helper, welding machine tender, and truck driver helper during
the 15 years preceding his alleged onset date. (Id. at 28, 296, 322-329).

1 Plaintiff had filed a prior application for supplemental security income in November 2014, resulting in a final
unfavorable administrative decision on January 27, 2016. (ECF No. 11, pp. 56-66).
Following an administrative hearing in June 2019, Administrative Law Judge (“ALJ”),
Hon. Elisabeth McGee entered an unfavorable decision on December 9, 2019. (ECF No. 11, pp.
17-29; ECF No. 11-1, pp. 3-42). She determined his DLI to be December 31, 2019. (Id. at 19).
In August 2020, the Appeals Council remanded the case for further consideration of Cole’s mental
impairments and obesity. (Id. at 132-134). Sadly, he passed away the following month.2 ALJ
1F
McGee held a remand hearing telephonically on December 7, 2020. (Id. at 38-52).
On May 21, 2021, ALJ McGee identified Cole’s degenerative joint disease (“DJD”) and
osteoarthritis of the bilateral hands, chronic pain, depression, bipolar disorder, panic disorder,
personality disorder, intermittent explosive disorder, PTSD, and obesity as severe impairments,
but she determined he did not have an impairment or combination of impairments that met or
medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. (ECF No. 11, p. 20). Despite his impairments, the ALJ found Cole retained the residual
functional capacity (“RFC”) to perform light work, except he could only perform work with
simple, routine, and repetitive tasks with few variables; little judgment; simple, direct, and concrete

supervision; and social interaction incidental to the work performed. (Id. at 22). With the
assistance of a vocational expert (“VE”), ALJ McGee ultimately decided he could perform work
as a housekeeper, packing line worker, and meat processor. (Id. at 29).
The Appeals Council denied Plaintiff’s request for review on June 3, 2022. (ECF No. 11,
pp. 6-10). She subsequently filed this action on July 29, 2022. (ECF No. 2). Both parties have
filed appeal briefs (ECF Nos. 13, 15), and the matter is ready for Report and Recommendation.

2 Cole passed away due to lobar pneumonia on September 27, 2020, after the Appeals Council remanded his case and
before the ALJ held the second hearing. (ECF No. 11, pp. 282, 887-888). Records indicate that he had
methamphetamine in his system at the time of death with obesity and cardiomegaly also listed as contributing factors.
Upon his death, Plaintiff, the mother of Cole’s minor daughter, was appointed as the child’s guardian and substituted
as a party on the child’s behalf. (Id. at 283-286).
II. Applicable Law
This Court’s role is to determine whether substantial evidence supports the
Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). If there is substantial evidence in the
record to support 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.
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 Claimant 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. § 404.1520(a)(4). The fact finder only
considers Claimant’s age, education, and work experience in the light of his RFC if the final stage
of the analysis is reached. 20 C.F.R. § 404.1520(a)(4)(v).
III. Discussion
The Plaintiff raises three issues on appeal: (1) whether the ALJ fully and fairly developed
the record; (2) whether the ALJ conducted a proper subjective complaint analysis; and (3), whether
there is substantial evidence to support the ALJ’s RFC determination.
A. Record Development
In her first issue, the Plaintiff contends that the ALJ failed to develop the record by ordering
additional consultative examinations and obtaining opinion evidence addressing each of the

impairments she found to be severe, namely Cole’s bipolar disorder, personality disorder,
intermittent explosive disorder, PTSD, and osteoarthritis of the hands. The ALJ does owe a duty
to a Claimant to develop the record fully and fairly to ensure his decision is an informed decision
based on sufficient facts. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). However,
the ALJ is not required to function as the Claimant’s substitute counsel, but only to develop a
reasonably complete record. Whitman v. Colvin, 762 F.3d 701, 707 (8th Cir. 2014) (quoting Clark
v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994). While “[a]n ALJ should recontact a treating or
consulting physician if a critical issue is undeveloped,” “the ALJ is required to order medical
examinations and tests only if the medical records presented to [her] do not give sufficient medical
evidence to determine whether the [C]laimant is disabled.” Johnson v. Astrue, 627 F.3d 316, 320
(8th Cir. 2010) (quotation, alteration, and citation omitted).
Further, while the RFC determination must be supported by some medical evidence, it is
ultimately an administrative determination reserved to the Commissioner. Perks v. Astrue, 687

F.3d 1086, 1092 (8th Cir. 2012). Thus, there is no requirement that the ALJ rely on actual RFC
assessments or opinions from a particular source. Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir.
2016) (there is no requirement that RFC finding be supported by specific medical opinion);
Stormo, 377 F.3d at 806 (ALJ did not fail to fully develop record, as no crucial issue was
undeveloped, and examining physicians provided clinical data and observations about claimant’s
limitations).
In the present case, the transcript contains approximately 400 pages of medical records
spanning from 2011 until 2020. This evidence includes records of hospitalization, medication
management, and individual therapy for a variety of mental impairments to include mood disorder,
bipolar I disorder, major depressive disorder (“MDD”), generalized anxiety disorder,

methamphetamine dependence, PTSD, and intermittent explosive disorder. (ECF No. 11, pp. 479-
480, 482-483, 506-515, 526-710, 734-757, 809-817, 830-883). Medications including Ritalin,
Lithium, Abilify, Effexor, Zoloft, Citalopram, Effexor, Lexapro, Haloperidol, Tegretol, Lamictal,
and Carbamazepine, along with psychotherapy were prescribed to control his symptoms.
The record contains no evidence of hospitalization during the relevant period. He was,
however, hospitalized for one month in 2011 due to suicidal ideation, homicidal threats, and
physical aggression. (ECF No. 11, pp. 816-817). His diagnoses included mood disorder, likely
MDD, and methamphetamine dependence. And, in 2013, Cole was twice treated for injuries
sustained in physical altercations. (Id. at 796-808).
A more in-depth review of the records dated during the relevant period reveals that Cole
received outpatient treatment for mood disorder, generalized anxiety disorder, panic disorder,
MDD, and bipolar I disorder from DaySpring Behavioral Health between his alleged onset date,
September 11, 2014, and October 2018, when the facility closed its doors. (ECF No. 11, pp. 526-

723, 742-757). His symptoms included depression, social anxiety, anger control issues, lack of
motivation to perform tasks, and introversion. It appears that at least some of his symptoms
stemmed from unresolved issues with his father who passed away while in prison; a volatile
relationship with his significant other; and substance abuse.
Dr. John McCauley prescribed Zoloft in March 2016 to treat his MDD, and records from
the following month reveal that Cole’s depression had improved. (ECF No. 11, pp. 479-480, 482-
483). In May, Dr. McCauley refused to increase Cole’s Xanax dosage. (Id. at 472-474). And, in
August, Cole reported that therapy was beneficial. (Id. at 678-681). Continued improvement in
his ability to manage his anger when dealing with his significant other was reported on May 24,
2017. (Id. at 621-622). In October 2017, Cole told his therapist that medications helped manage

his anger, mood, and irritability. (Id. at 587-588). At that time, he also requested that the dosage
on his antidepressant be increased. (Id. at 589-590).
In June 2017, Cole’s anxiety had improved as he was utilizing the coping skills he had
learned in therapy to calm himself down. (ECF No. 11, pp. 611-618). Although he continued to
struggle with his partner’s behavior, he was able to better control his temper. And, in November
2017, Cole reported continued improvement in the relationship with his partner. (Id. at 585-586).
Despite a recent increase in depressive symptoms, Cole presented with an improved mood
in February 2018. (ECF No. 11, pp. 563-564). Six months later, licensed professional counselor,
Holli Shelton documented continued improvement. (Id. at 530-531).
In December 2018, after DaySpring closed, Cole began mental health treatment at Pinnacle
Point for diagnoses of bipolar I disorder, anxiety disorder, intermittent explosive disorder, and
PTSD. (ECF No. 11, pp. 809-815). Overall, however, his symptoms remained the same with
slight progress noted. (Id. at 734-736, 838-846, 857-859, 860-872). Dr. John McAuley increased

his Alprazolam and Lamotrigine prescriptions in January 2019, as Cole worked to get established
at Pinnacle Point. (Id. at 734-736). And Cole continued to work on identifying and processing
triggers for his aggressive behavior. (Id. at 734-736, 838-846, 857-859, 860-872).
Dr. Don Ott conducted a consultative psychiatric evaluation on June 20, 2018. (ECF No.
11, pp. 506-515). Cole indicated that he applied for disability due to issues with anger, social
anxiety, and depression. He reported a hospitalization in 2013, after threatening his partner with
a gun, as well as a 16-year history of sporadic outpatient treatment. Cole also admitted to a history
of drug abuse including both street drugs and Hydrocodone. And despite reporting difficulty
getting along with others, including authority figures on his adult function report, he advised Dr.
Ott that he did not have a major conflict with others. (Id. at 318-322). He did, however, report

having limited social contact. Although his fund of knowledge was found to be limited, his verbal
skills were satisfactory. Dr. Ott documented a depressed and anxious mood, evidence of
grogginess caused by his medication, intact cognitive processes, rational and goal-directed
thoughts, intact memory, a lack of focus, no specific limitations in the areas of persistence or pace,
the ability to manage funds without assistance, and no loss of contact with reality. He diagnosed
Cole with schizoid personality disorder and assigned a global assessment of functioning score of
60-70, indicative of mild to moderate impairment. See Diagnostic and Statistical Manual of
Mental Disorders IV-TR 34 (4th ed. 2000).3
2F

3 However, “GAF scores have no direct correlation to the severity standard used by the Commissioner.” Wright v.
Colvin, 789 F.3d 847 (8th Cir. 2015) (citing 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000)).
Seven days later, Dr. Laurie Clemens reviewed the record and concluded Cole’s mental
impairments would result in moderate limitations in the following areas: interacting appropriately
with the public, accepting instructions, responding appropriately to criticism from supervisors,
getting along with coworkers or peers without distracting them or exhibiting behavioral extremes,

and responding appropriately to changes in work setting. (ECF No. 11, pp. 81-87).
On July 17, 2018, Dr. Michael Westbrook conducted a general physical exam and
acknowledged Cole’s diagnosis of depression, noting it to be stable with treatment. (ECF No. 11,
pp. 519-523). He assessed only mild physical limitations with no mention of mental restrictions.
Dr. Elizabeth Bucolo conducted an independent review of the record on September 14,
2018, and ultimately affirmed Dr. Clemens’ mental RFC. (ECF No. 11, pp. 100-106).
In May 2019, Counselor Shelton again noted some progress toward Cole’s treatment goals.
(ECF No. 11, pp. 830-837). He indicated that the police suspected him of stealing a lawnmower
and golf cart because he was able to help them find the items. Cole maintained his innocence but
indicated that he knew who was responsible for the theft.

On July 10, 2019, Cole reported improvement in his anger outbursts, reporting
approximately three outbursts per week. (ECF No. 11, pp. 844-846). He had been able to maintain
his composure when a guy “came at him.”
The following day, Dr. Kelsy McClellan at Pinnacle Pointe conducted a psychological
assessment of Cole, noting an anxious mood, congruent affect, cooperative interaction, intact
thought processes, good judgment and insight, fair attention and concentration, and no evidence
of delusions. (ECF No. 11, pp. 847-856).
On August 7, 2019, Cole reported getting out more and visiting a friend who was paralyzed
and could not leave his home. (ECF No. 11, pp. 867-869). Similar findings were noted the
following day. (Id. at 860-866). Dr. McClellan noted a depressed and anxious mood, appropriate
appearance, good judgment/insight, and intact attention and concentration with a withdrawn
demeanor and avoidant eye contact.
After reviewing this evidence, we find that the record contains ample evidence upon which

the ALJ could base his decision. “‘[A]n 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.’” Swink v. Saul, 931 F.3d 765, 770 (8th Cir. 2019) (quoting Anderson v.
Shalala, 51 F.3d 777, 779 (8th Cir. 1995)).
As posited by the Plaintiff, the most recent RFC assessments and consultative exams were
completed between June and September 2018. (ECF No. 11, pp. 81-87, 11-106, 506-515, 519-
523). And we note that the relevant period in this case extends from September 11, 2014,
Plaintiff’s alleged onset date, through December 31, 2019, his date last insured. See Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006) (to be entitled to benefits, the claimant must prove
that he was disabled before his insurance expired). They clearly relate to the Plaintiff’s condition

during the relevant period. Thus, given that there is no indication that the Plaintiff’s condition
worsened after these assessments were completed, the fact that the ALJ did not issue a final
decision until May 2021 has no bearing on their overall validity.
The Plaintiff also asserts that ALJ failed to develop the record regarding Cole’s
manipulative limitations after concluding that his osteoarthritis of the hands was a severe
impairment. We disagree. The record contains no evidence that any such manipulative limitations
were assessed by any of Cole’s physicians during the relevant period. See Depover v. Barnhart,
349 F.3d 563, 567 (8th Cir. 2003) (relevant that none of claimant’s providers offered an opinion
that he was disabled or made any statement/recommendation that he was unable to work); Raney
v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005) (similar); Hensley v. Barnhart, 352 F.3d 353,
357 (8th Cir. 2003) (no functional restrictions on activities is inconsistent with claim of disability).
And, contrary to the Plaintiff’s contention that the RFC contained no restrictions related to Cole’s
hand impairment, the ALJ limited him to light work which involves lifting and carrying 10 pounds

frequently and 20 pounds occasionally.
Cole was involved in a four-wheeler (ATV) accident in March 2016. (ECF No. 11, pp.
758-762, 828-829). After allegedly going over the handlebars, he complained of pain in his right
arm, ribs, and buttocks, and well as both elbows. Thereafter, Cole reported a 30 to 75 percent
improvement in pain with chiropractic treatment. (Id. at 818-827).
He began complaining of CTS symptoms in June 2016. (ECF No. 11, pp. 466-467). In
December 2016, Dr. McCauley injected his left thumb after noting pain and swelling at its base.
(Id. at 452-454). Thereafter, Cole reported pain relief. Due to recurrent swelling, tenderness, and
poor use of his left thumb, the doctor referred Cole to an orthopedic surgeon, Dr. Rolando Cheng,
in October 2017 for further treatment. (Id. at 456-448). Notably, there is no evidence Cole

followed through with this referral. And the record contains only a few additional references to
his thumb/hand pain. See Whitman, 762 F.3d at 706 (ALJ can consider claimant’s failure to follow
prescribed treatment or seek medical attention).
As previously mentioned, Dr. Westbrook conducted a consultative physical exam in July
2018. (ECF No. 11, pp. 519-523). Although he exhibited a diminished range of motion in the
right metacarpophalangeal (“MP”) joint (60/90 degrees), Cole had normal grip strength in both
hands and a normal range of motion in the shoulders, elbows, wrists, left hand, hips, knees, ankles,
cervical spine, and lumbar spine with no evidence of muscle spasm, weakness, or atrophy. Further,
x-rays showed only mild DJD in the left thumb and carpal bones of both hands. Cole was able to
perform all limb function tests including holding a pen and writing, touching his fingertips to his
palm, opposing thumb to fingers, and picking up a coin. Accordingly, Dr. Westbrook assessed
only mild limitations in the ability to sit, stand, walk, lift, carry, handle, and finger.
In August 2018, Dr. Alice Davidson reviewed the evidence of record and determined Cole

could perform a full range of light work. (ECF No. 11, pp. 84-85). And, on September 14, 2018,
Dr. William Harrison agreed with Dr. Davidson’s findings. (ECF No. 11, pp. 103-104).
Accordingly, we find ample evidence upon which the ALJ could base her conclusion that
Cole could perform light work with mental restrictions. And, given Cole’s death in September
2020, remand for additional evaluations at this point would be futile.
Further, because the Plaintiff has failed to provide the Court with evidence as to what the
additional examinations might have shown, had they been conducted, we can find no harm
resulting from the ALJ’s failure to order additional exams. Therefore, no additional exams or
assessments were required.
B. Subjective Complaints

The Plaintiff also maintains that the ALJ’s reasons for discounting Cole’s subjective
complaints of pain and mental limitations are not clear, beyond a finding that they were not
supported by the objective medical evidence. The ALJ is required to consider all the evidence
relating to Plaintiff’s subject complaints, including: (1) the Claimant’s daily activities; (2) the
duration, frequency, and intensity of his pain; (3) precipitating and aggravating factors; (4) dosage,
effectiveness, and side effects of his medication; and (5), his functional restrictions. See Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). In so doing, the ALJ must also consider the
observations made by third parties and the opinions of treating and examining physicians. Id.
An ALJ may not discount the Claimant’s subjective complaints solely because the medical
evidence fails to support them. Id. However, “[a]n ALJ . . . may disbelieve subjective reports
because of inherent inconsistencies or other circumstances.” Wright v. Colvin, 789 F.3d 847, 853
(8th Cir. 2015) (citing Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007) (quotation and citation

omitted). The Eighth Circuit has observed, “[o]ur touchstone is that [a claimant’s] credibility is
primarily a matter for the ALJ to decide.” Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
Contrary to the Plaintiff’s argument, the ALJ properly considered Cole’s subjective
complaints. As detailed above, the ALJ properly concluded that the objective medical evidence
did not support a finding of disability. See 20 C.F.R § 404.1529(c)(2) (objective evidence medical
is a “useful indicator” in evaluating subjective symptoms). In addition, she pointed out that none
of Cole’s treatment providers imposed any work-related restrictions. See Depover, 349 F.3d at
567 (relevant that none of claimant’s providers offered an opinion that he was disabled or made
any statement/recommendation that he was unable to work); Raney, 396 F.3d at 1010 (similar);
Hensley, 352 F.3d at 357 (no functional restrictions on activities inconsistent with claim of

disability).
The ALJ also considered Cole’s activities, namely his own reports that he could care for
his personal needs; shop in stores for groceries, albeit it late at night; drive; go out alone; mow the
yard using a riding mower; follow written instructions; and handle his finances. See 20 C.F.R §
404.1529(c)(3)(i) (ALJ can consider daily activities in subjective symptom evaluation). Similarly,
the ALJ noted that the Plaintiff was able to hunt, operate a four-wheeler, and do yard work in 2016;
work on vehicles with others in April 2017; work on a small boat in June 2018, and fish and work
on trucks in December 2018. (Id. at 462-463, 627-628, 658-659, 674-681, 694-697, 760, 764-769,
809-815). These activities all require some manipulative ability and provide support for the ALJ’s
physical RFC determination. See Lynch v. Astrue, 687 F. Supp. 2d 841, 865 (N.D. Iowa 2010)
(ALJ entitled to consider activities claimant performed, despite her alleged manipulative
limitations). Working on vehicles with others also demonstrates an ability to work in proximity
to others.

Further, the ALJ noted that Cole’s pain was well-controlled, and the medications
prescribed to treat his mental impairments were relatively effective in improving his symptoms.
Although he alleged various side effects from his medications, including drowsiness, the record
indicates that those side effects were generally mild, as Cole did not complain about them to his
medical providers. See 20 C.F.R §§ 404.1529(c)(3)(iv), 404.1529(c)(3)(v) (ALJ can consider type,
dosage, effectiveness, and side effects of medication, as well as treatment other than medication
taken for relief of pain or other symptoms). And the only signs of grogginess noted in the record
were documented by Dr. Ott during a one-time consultative exam.
Accordingly, the record clearly demonstrates that the ALJ conducted a proper subjective
complaint analysis.

C. RFC Determination
Next, the Plaintiff revives her argument concerning the ALJ’s treatment of the objective
medical evidence, arguing that the limited range of light RFC accounts for Cole’s non-severe DDD
of the lumbar spine but not his mental impairments, the DJD/osteoarthritis of his hands, or his
obesity. She contends this constitutes error because all three of the Dictionary of Occupational
Titles (“DOT”) titles provided by the vocational expert contain manipulative requirements. See
DOT § 323.687-014 (requires frequent reaching and handling and occasional fingering); DOT §
753.687-038 (requires constant reaching and handling and frequent fingering); and DOT §
525.687-074 (requires constant reaching and handling and occasional fingering).
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545.
The ALJ’s RFC determination must be based on all relevant evidence in the record, including
medical records, observations of treating physicians and others, limitations resulting from factors
such as pain, and the Claimant’s own descriptions of her limitations. Id. § 404.1545(a)(3); see

also Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) and Davidson v. Astrue, 578 F.3d 838, 844
(8th Cir. 2009). In assessing RFC, the ALJ must consider limitations resulting from all an
individual’s impairments, even those found to be non-severe. Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, SSR 96-8p, (S.S.A. 1996) 1996 WL 37418, *5.
Although the Plaintiff cites several records to support her allegation that Cole’s mental
impairments were disabling, she is essentially asking the Court to reweigh the evidence in his
favor, which we may not do. See Austin v. Kijakazi, 52 F.4th 723, 731 (8th Cir. 2022). She does
point to Dr. Ott’s statements that Cole was hospitalized for one week in 2013 after threatening
someone with a gun and his 16-year history of outpatient mental health with minimal change in
his symptoms, but she has failed to show how this supports Cole’s application for benefits. (ECF

No. 11, pp. 506-515). As previously mentioned, his alleged onset date was September 2014. Thus,
a reference to a hospitalization that occurred in 2013 is of little value to the overall case. This is
especially true given that the relevant evidence shows Cole’s mental symptoms were responsive
to both medication and therapy. See Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004) (“If an
impairment can be controlled by treatment or medication, it cannot be considered disabling.”
(internal quotation marks and citation omitted)); Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.
2000) (“Impairments that are controllable or amenable to treatment do not support a finding of
total disability.” (internal quotation marks and citation omitted)).
Moreover, the Plaintiff ignores Dr. Ott’s actual examination findings, which showed Cole
to be pleasant and cooperative with no aggression or hostility; normal speech, thought processes,
and thought content; intact cognition, and no evidence of auditory or visual hallucinations. (ECF
No. 11, pp. 506-515). Other than noting he was groggy from medication and not very focused,

Dr. Ott assessed no limitations, including social restrictions. Nonetheless, the Plaintiff avers that
Cole’s report to Dr. Ott that he did not have major conflicts with others was the result of his limited
social contact with others, rather than an admission that he gets along well with others.
Unfortunately, even accepting her argument as true, there is no evidence that Cole’s social
restrictions extended beyond the ALJ’s limitation to incidental social interaction. As previously
noted, the record indicates he was able to assist others in working on vehicles, which he described
as an outlet. And he reported no difficulties getting along with these men. His only issues appeared
to have been with his partner.
The Plaintiff has also failed to show how Cole’s April 2017 report to his therapist that his
partner called the police on him for allegedly kidnapping their child supports mental disability.

(ECF No. 11, pp. 606-610, 627-628). She called the police because Cole left the home with their
son following an argument and was ultimately charged with filing a false police report. Evidence
indicates that Cole was trying to work things out with his partner at that time. Thus, the record
supports the ALJ’s determination that Plaintiff could perform work where social interaction is
incidental to the work performed.
It is also significant to note that the ALJ’s RFC determination is supported by the
consultative examinations of Dr. Westbrook and Dr. Ott, as well as the assessments of the state
agency physicians. (ECF No. 11, pp. 519-523). The Plaintiff has not challenged the ALJ’s
determination that these assessments were persuasive. See Vandenboom v. Barnhart, 421 F.3d
745, 750 (8th Cir. 2005) (undeveloped argument waived). And, although Dr. Westbrook noted a
decreased range of motion in Cole’s right MP joints, no functional limitations were documented.
The state agency experts agreed, concluding Cole could perform light work without the need for
manipulative restrictions. (ECF No. 519-523). His reported activities further undermine the

Plaintiff’s claim that manipulative limitations were required. See Kamann v. Colvin, 721 F.3d 945,
951 (8th Cir. 2013) (substantial evidence, including findings on physical examinations, examiner’s
report, and claimant’s daily activities, supported ALJ’s RFC determination).
Plaintiff has also not cited any evidence that Cole’s obesity, which the ALJ found severe
at step two, warranted RFC limitations beyond light work. The ALJ explained that while she found
Cole’s obesity severe, “it is not so limiting as to prevent the performance of work tasks within the
residual functional capacity as set out below.” (ECF No. 11, p. 20). She correctly observed that
his body mass index (“BMI”) remained consistent throughout the record and did not interfere with
his ability to enjoy activities such as hunting and riding 4-wheelers, nor did it prevent him from
working on vehicles. In fact, none of his treating providers restricted his activities or opined that

he was unable to work due to obesity. Thus, we find no error in the ALJ’s treatment of Cole’s
obesity, utilizing it as further justification to limit him to light work.
Finally, Plaintiff contends that the ALJ incorrectly characterized Cole as a “younger
individual” on his date last insured, noting that he subsequently changed age categories to “closely
approaching advanced age.” (ECF No. 11, pp. 29). This, however, appears to be a typographical
error, as the ALJ correctly noted Cole was 50 years old, which is within the “closely approaching
advanced age” category, on his DLI. (Id.). The ALJ also referenced Grid rule 202.21 (younger
individual), as well as 202.14 (individual closely approaching advanced age), covering his proper
age category. (Id.). Therefore, we find the error to be harmless. And, the Plaintiff admits that this
typographical error, standing alone, was indeed harmless.
Due to Cole’s death in 2020, the Plaintiff urges this Court to reverse and award benefits in
this case, to the benefit of Cole’s surviving minor child. We note, however, that Cole’s death was

seemingly unrelated to the impairments upon which he based his DIB application. His cause of
death is listed as lobar pneumonia with methamphetamine intoxication, obesity, and cardiomegaly
noted as contributing factors. (ECF No. 11, pp. 887-888). There is no indication that the two were
connected. Therefore, while we are saddened for the loss suffered by Cole’s minor child, a reversal
and award of benefits is not justified in this case, as we find substantial evidence to support the
ALJ’s RFC determination.
IV. Conclusion
For the reasons and upon the authorities discussed above, it is recommended that the ALJ’s
decision be affirmed, and that the Plaintiff’s Complaint be dismissed with prejudice.
The parties have fourteen (14) 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. We remind the parties
that objections must be both timely and specific to trigger de novo review by the district
court.
DATED this 1st day of August 2023.
/s/ Mark E. Ford
HON. MARK E. FORD
CHIEF UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632790. Public record. Not legal advice.