# Kelley v. Social Security Administration Commissioner

> District Court, W.D. Arkansas · November 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10632895

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** November 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10632895

## How later opinions describe it (automated extraction)

- holding if an impairment can be controlled by treatment or medication, it cannot be considered disabling
- holding absence of formal treatment is a significant consideration when evaluating Plaintiff’s allegations of disability due to a mental impairment

## Opinion text

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

BRAD W. KELLEY PLAINTIFF

V. Civil No. 2:22-cv-02167-PKH-MEF

KILOLO KIJAKAZI, Acting Commissioner,
Social Security Administration DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Brad Kelley, brings this action under 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 supplemental security income (“SSI”) under Title XVI of the Social Security
Act (hereinafter “the Act”), 42 U.S.C. § 1382. 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 filed his application for SSI on May 20, 2020, alleging disability since December
18, 2018, due to traumatic brain injury (“TBI”), post-operative hematoma, seizures, a torn ACL in
the left knee, and post-surgical impairment of the right hand. (ECF No. 10, pp. 56, 75, 180-186,
202, 225-226). An administrative hearing was held on June 10, 2021. (Id. at 35-53). Plaintiff was
present and represented by counsel.
Born on July 23, 1983, Plaintiff was 36 years old on his alleged onset date and possessed
a limited education.1 (ECF No. 10, p. 26, 302). Although the Plaintiff had work experience as a

1 The Plaintiff advised Dr. Patricia Walz that he completed the 9th or 10th grade but was ultimately kicked out for
fighting. (ECF No. 10, p. 302).
dump truck driver, forklift driver, and lawncare worker, the ALJ found he had no qualifying past
relevant work (“PRW”). (Id. at 26, 268). He continued to work after his application date, though
said work did not rise to the level of substantial gainful activity. (Id. at 19).
On September 20, 2021, Administrative Law Judge (“ALJ”), Bill Jones, identified
Plaintiff’s seizure disorder status post TBI with craniotomy, persistent depressive disorder,

intermittent explosive disorder, and antisocial personality disorder as severe impairments, but he
concluded Plaintiff 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. 10, pp. 19-20). Despite his impairments, the ALJ found that Plaintiff retained the
residual functional capacity (“RFC”) to perform light work with no exposure to hazards, such as
dangerous machinery and unprotected heights; and where the interpersonal contact is incidental to
the work performed; the complexity of the tasks is learned and performed by rote, with few
variables and little judgment; and the supervision required is simple, direct, and concrete. (Id. at
22). With the assistance of a vocational expert (“VE”), the ALJ ultimately decided there were jobs

that exist in significant numbers in the national economy that the Plaintiff could perform, including
cleaner and parts inspector. (Id. at 27).
The Appeals Council denied Plaintiff’s request for review on August 22, 2022. (ECF No.,
10, pp. 6-11). Plaintiff subsequently filed this action on September 25, 2022. (ECF No. 2). Both
parties have filed appeal briefs (ECF Nos. 13, 15), and the matter is ready for Report and
Recommendation.
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 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 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.
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. § 1382c(a)(3)(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. § 1382c(a)(3)(D). 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. 20 C.F.R. § 416.920(a)(4). The fact finder only
considers Plaintiff’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. § 416.920(a)(4)(v).
III. Relevant Medical Evidence

At the outset, we note that the relevant period is limited in SSI cases. See 20 C.F.R. §
416.335; Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir. 1989) (using SSI application date to mark
the beginning of the relevant period); Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013) (using
the date of the ALJ’s decision on the SSI claim to mark the end of the relevant period). Thus, the
relevant period extends from May 20, 2020, the date the Plaintiff filed his SSI application, through
September 20, 2021, the date of the ALJ’s decision. Although the record is over 4,500 pages in
length, many of these records predate the relevant period. Accordingly, evidence predating his
application will only be used to elucidate his condition during the relevant period. Cox v. Barnhart,
471 F.3d 902, 907 (8th Cir. 2006) (holding records and medical opinions dated outside the relevant

period can only be used in “helping to elucidate a medical condition during the time for which
benefits might be rewarded”).
The Plaintiff’s relevant history began in December 2018, when his motorcycle struck
another vehicle broadside at 50 miles per hour. (ECF No. 10, pp. 575-931; ECF No. 10-1, pp. 1-
3, 5-7, 9-39, 47-50, 53-66, 68-98, 100-112, 194-201, 204-207, 221-226; ECF No. 10-2, pp. 1-2725;
ECF No. 10-3, pp. 149-153, 291-525, 532-620). He was ejected from the motorcycle and, to his
own detriment, was not wearing a helmet. As a result, he suffered a closed head TBI, requiring
bilateral temporal craniotomies to evacuate hematomas. These injuries affected both his
personality and his ability to manage his anger. The Plaintiff also suffered a fracture of the base
of the fourth metacarpal bone with partial degloving and a partial tendon laceration to the right
hand, necessitating reconstructive surgery. He was released home on January 9, 2019, with home
health and outpatient occupational therapy. (ECF No. 10-3, pp. 1-79). Thereafter, the Plaintiff
reported residual symptoms to include headaches, dizziness, memory loss, and tendon adhesions.
(ECF No. 10-1, pp. 174-177, 185-191; ECF No. 10-3, pp. 283-287, 713).

In July 2019, Dr. Patricia Walz conducted a consultative mental evaluation of the Plaintiff.
(ECF No. 10, pp. 301-306). Despite a history of depression dating back to childhood, the Plaintiff
reported no current psychotropic medications or formal mental health treatment. Further, he
admitted to a criminal history2 and a lengthy history of alcohol abuse, stating that he consumed
alcohol until his accident. He also used marijuana on a weekly basis, indicating that it calmed him
and squelched his anger. Dr. Walz diagnosed persistent depressive disorder exacerbated by the
accident, probable intermittent explosive disorder, antisocial personality disorder, cannabis use
disorder, alcohol use disorder reportedly in sustained remission, and rule out major cognitive
disorder due to his TBI. She assessed the Plaintiff with borderline to low average intellectual

functioning and opined that his social skills would be impaired by his irritability and angry
outbursts. Dr. Walz also indicated that his attention and concentration were impaired, and his
thought processes and speed of information were quite slow. Although he reported memory issues,
he was noted to be a good historian and did fairly well on the memory portion of the mental status
exam. Accordingly, she concluded the Plaintiff could only manage a simple budget without
assistance.
Later that month, Dr. Chester Carlson conducted a general physician exam. (ECF No. 10-
1, pp. 208-220; ECF No. 10-3, pp. 281-282, 529-530). The exam revealed decreased dorsiflexion

2 The Plaintiff has been to prison on three occasions, the first due to possession of marijuana and the other two related
to probation violations. (ECF No. 10, pp. 301-306).
and palmar flexion in the right wrist; restricted proximal interphalangeal and metacarpophalangeal
joint motion in the right hand; decreased flexion in the right hip; decreased flexion in the right
knee; and a reduced range of motion in the cervical spine. There was, however, no muscle
weakness, atrophy, sensory abnormalities, or gait/coordination abnormalities noted. And an x-ray
of the right hand revealed a healed fracture of the right metacarpal. Dr. Carlson diagnosed an

injury to the right hand secondary to a motorcycle accident. He assessed moderate to severe
impairment of his ability to grip, carry, lift, and write with the right hand. The doctor noted that
the Plaintiff could hold a pen and write and touch fingers to palm with his left hand only; he could
not walk on heel and toes secondary to a right leg injury; he could not squat/arise from a squatting
position secondary to his right knee; and he exhibited 50% normal grip strength in the right hand
(unable to completely close hand) but full strength in left hand.
Due to tendon adhesions in the fingers of the right hand, orthopedic surgeon, Dr. Eric Heim,
performed tenolysis of the extensor tendon of the right ring and middle fingers in August 2019.
(ECF No. 10-1, pp. 208-220; ECF No. 10-3, pp. 281-282, 529-530). Three days later, the Plaintiff

was transported to the emergency room (“ER”) after experiencing a seizure lasting two to three
minutes. (ECF No. 10, pp. 336-349, 469-472, 491-494, 510-511; ECF No. 10-3, pp. 82-148, 154-
157). A CT scan of the head without contrast revealed peripheral encephalomalacia in the lateral
left temporal lobe subadjacent to the craniotomy defect. There was, however, no acute intracranial
abnormality. As such, the Plaintiff was given seizure precautions and advised to follow-up with
neurology.
On September 3, 2019, Dr. Heim indicated he was very pleased with the Plaintiff’s
progress. (ECF No. 10-3, pp. 711-712). He advised him to resume therapy and prescribed pain
medication. The following month, Plaintiff’s right hand continued to show improvement. (ECF
No. 10, pp. 321-325, 396-398; ECF No. 10-3, pp. 631-634, 706-709). He could make a full
composite fist and had less tendon-skin adhesions and pulling. Dr. Heim advised him to continue
motion and hook exercises and scar massages, prescribed Hydrocodone, and recommended he
allow at least six months for full medical improvement.
The Plaintiff was again transported to the ER in late November 2019 for complaints of

dizziness, headache, and memory loss. (ECF No. 10, pp. 390-395, 407-417, 429-435, 440-441;
ECF No. 10-3, pp. 275-280, 526-528). He admitted that he had not followed up with neurology
as he had been directed because he did not have the money to pay his co-pay. Following a normal
CT scan of the head, the ER doctor diagnosed dizziness with a history of a head injury. He
prescribed Hydrocodone and Meclizine.
On January 1, 2020, the Plaintiff experienced another seizure, requiring transport via
emergency medical services. (ECF No. 10, pp. 350-360, 460-465, 476-478; ECF No. 10-3, pp.
158-161). During the episode, he fell and struck his head on the corner of the door frame, resulting
in a laceration to his scalp. Although no significant changes were noted on a CT scan of his head,

the doctor diagnosed a seizure and prescribed Keppra. An EEG dated January 15, 2020, was
normal. (ECF No. 10, pp. 381-383, 456-457, 474-475, 500-503). Unfortunately, the Plaintiff only
took the Keppra for a few days before determining he did not like the way it made him feel and
discontinuing the medication. The doctor prescribed a Keppra load and directed the Plaintiff to
restart the medication at home.
He suffered a second seizure in February 2020. (ECF No. 10-3, pp. 162-270). Plaintiff
presented in the ER with a headache, fatigue, nausea, dizziness, and an altered level of
consciousness. Following an unchanged CT scan, the doctor diagnosed recurrent generalized
seizure and prescribed Hydrocodone, Ondansetron, Naproxen, and Keppra.
The Plaintiff established care with Dr. Ronald Schlabach on February 12, 2020, and
requested that he complete an assessment for disability. (ECF No. 10, pp. 327-331, 452-456). He
reported chronic right-sided head pain throughout the day with a history of seizure activity.
Although he had been noncompliant with Keppra in the past, the Plaintiff indicated he was taking
the medication as directed. He was, however, now out of Hydrocodone and Ondansetron. An

exam revealed appropriate motion in the extremities, no obvious peripheral sensory or motor
deficits, good strength in the proximal and distal musculature of the extremities, and a normal gait.
He was able to hear finger rubs in the left ear but not in the right. Additionally, the Plaintiff was
alert and fully oriented with a somewhat flat affect, normal speech, and good eye contact. Dr.
Schlabach advised him to continue the Keppra and to keep his appointment with neurology in May.
He also indicated the Plaintiff could continue using medical marijuana, as it decreased his overall
headache intensity and helped decrease his anxiety. Although the doctor refused to complete an
RFC assessment, he did indicate it would be logical to say the Plaintiff should not operate
motorized tools. He was of the opinion, however, that someone could drive Plaintiff to work, and

that he should be able to do manual labor activity with other tools.
During an April follow-up phone call with Dr. Heim’s office, the Plaintiff reported doing
well with no pain and no problems. (ECF No. 10, p. 390).
The Plaintiff saw Timothy Booker, physician’s assistant to Dr. William Knubley at Mercy
Neurology, on May 5, 2020. (ECF No. 10, pp. 372-380, 445-452). Plaintiff claimed to have had
a fourth seizure a couple of months prior, but he did not seek out medical attention for it. At this
time, a physical exam revealed full motor strength, a normal gait, no sensation abnormalities, and
a normal neurological evaluation. PA Booker noted him to be stable on Keppra but stressed the
importance of taking it faithfully. He also encouraged good sleep hygiene, abstinence from
alcohol, and the effective management of stress as these were all ways to increase his seizure
threshold. The Plaintiff indicated that he was no longer drinking or using marijuana.
On September 29, 2020, PA Booker completed a treating physician’s seizure report. (ECF
No. 10, pp. 528-529, 545-546). He indicated that he had treated the Plaintiff for convulsive,
generalized seizures since May 2020. Since that time, the Plaintiff had reported two seizures.

Dr. James Hazlewood examined the record on October 20, 2020, concluding the Plaintiff
could perform light work with no exposure to hazards such as machinery and heights. (ECF No.
10, pp. 65-67). That same day, Dr. Marilyn Jordan completed a psychiatric review technique form
and mental RFC, concluding the Plaintiff would have moderate limitations in the following areas:
carrying out detailed instructions; maintaining attention and concentration for extended periods;
making simple work-related decisions; completing a normal workday and workweek without
interruptions from psychologically based symptoms; performing at a consistent pace without an
unreasonable number of rest periods; interacting appropriately with the general public; accepting
instructions and responding appropriately to criticism; and getting along with coworkers or peers

without distracting them or exhibiting behavioral extremes. (ECF No. 10, pp. 62-63, 67-69).
On November 5, 2020, the Plaintiff advised PA Booker that his last seizure occurred in
March, but he raised a concern regarding a new onset of paroxysmal vertigo with associated
nausea. (ECF No. 10, pp. 539-545). These episodes occurred twice per week and lasted 45
minutes. He also reported chronic tinnitus in the right ear following his TBI. An exam revealed
the Plaintiff to be pleasant and cooperative with no apparent distress, a normal mental status exam,
intact memory, normal motor function, and normal coordination and gait. Vestibular testing
revealed a slightly sharpened Romberg, past pointing, and Quik’s to the right. PA Booker referred
him to an otolaryngologist for the evaluation of his spells, as he could not ascertain whether they
were an atypical form of Meniere’s or purulent fistula secondary to head trauma. He noted,
however, the Plaintiff’s seizure disorder was stable on Keppra.
Two weeks later, Dr. Rachel Morrisey conducted an independent review of the record and
concluded the Plaintiff’s mental impairments would moderately limit his ability to carry out
detailed instructions, maintain attention and concentration for extended periods, work in

coordination with or proximity to others without being distracted by them, complete a normal
workday and workweek without interruptions from psychologically based symptoms, perform at
a consistent pace without an unreasonable number and length of rest periods, interact appropriately
with the general public, accept instructions and respond appropriately to criticism from
supervisors, and get along with coworkers or peers without distracting them or exhibiting
behavioral extremes. (ECF No. 10, pp. 83-86, 92-95). Later that month, Dr. Cheryl Snyder
completed a physical RFC assessment concluding the Plaintiff could perform light work with no
exposure to hazards such as machinery and/or heights. (Id. at 88-92).
Plaintiff returned to PA Booker on March 9, 2021. (ECF No. 10, p. 559-567). Although

he reported one seizure the previous month, despite taking the Keppra faithfully, his main concern
was his anger issues. The Plaintiff reported waking up angry, with little things seeming to set him
off. His fiancé indicated that this was a problem prior to his head injury, but it had worsened since
the injury. Noting an unchanged exam, PA Booker increased Plaintiff’s Keppra dosage, added
Lamictal, and referred the Plaintiff for psychiatric assistance regarding his mood disorder. He also
referred him back to Dr. Schlabach for the completion of his RFC assessment.
On May 5, 2021, the Plaintiff was evaluated by otologist, Dr. David Walker, for complaints
of hearing difficulty and ringing in the right ear. (ECF No. 10-3, pp. 651-694). This had reportedly
begun approximately one year after his head injury. The Plaintiff reported that his hearing had
improved mildly, as had his tinnitus, but his dizzy spells remained intermittent. Riding in a car,
looking down, and looking back up exacerbated his symptoms, making him feel drunk. Antivert
was said to be helpful, as was marijuana. An audiogram revealed right sensorineural hearing loss
and borderline hearing loss in the left ear. Dr. Walker ultimately concluded that the Plaintiff’s
dizziness was multifactorial, related to his lower extremity paresthesias, his TBI, and the side

effects of the anti-convulsant medications to prevent seizures.
IV. Discussion
Plaintiff raises four issues on appeal: (1) whether the ALJ fully and fairly developed the
record; (2) whether the ALJ erred at Step Two of the sequential evaluation; (3) whether the ALJ
properly considered the Plaintiff’s subjective complaints; and (4) whether the RFC determination
is supported by substantial evidence.
A. Development of the Record
In his first issue, the Plaintiff contends that the ALJ failed to develop the record fully and
fairly by obtaining additional RFC assessments from a treating and/or examining source. While

the ALJ does owe a duty to a claimant to develop the record fully and fairly to ensure that his
decision is an informed decision based on sufficient facts, the ALJ is only required to develop a
reasonably complete record. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004); see also
Whitman v. Colvin, 762 F.3d 701, 707 (8th Cir. 2014) (citing Clark v. Shalala, 28 F.3d 828, 830-
831 (8th Cir. 1994)). An ALJ need not recontact a treating or consulting physician unless a critical
issue is undeveloped, and an ALJ is not required to order medical examinations and tests unless
the medical records presented do not provide sufficient evidence upon which a disability
determination can be made. Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (quotation,
alteration, and citation omitted). There is no requirement that the ALJ’s RFC finding be supported
by a specific medical opinion. Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). Instead, the
RFC is a decision reserved to the agency such that it is neither delegated to medical professionals
nor determined exclusively based on the contents of medical records. See Perks v. Astrue, 687
F.3d 1086, 1092-1093 (8th Cir. 2012) (holding RFC determination is reserved to Commissioner
and based on the evidence of record). The ALJ must rely on all the relevant medical and non-

medical evidence, not just the medical opinions, in forming the RFC. See Boyd v. Colvin, 831
F.3d 1015, 1020 (8th Cir. 2016); 20 C.F.R. § 416.945(a)(3). Thus, while there must be some
evidence of the Plaintiff’s ability to function in the workplace, every aspect of the RFC is not
required to be supported by a specific medical opinion. Twyford v. Comm’r, Soc. Sec. Admin., 929
F.3d 512, 518 (8th Cir. 2019) (quoting Hensley, 829 F.3d at 932).
In the present case, we note that the record contains a plethora of medical evidence,
including treatment notes from the Plaintiff’s treating physicians and specialists; operative reports;
hospitalization notes; occupational therapy notes; emergency room records; imaging results;
seizure statements from the Plaintiff and his friends/family; a treating physician’s seizure report

prepared by PA Booker; and physical and mental RFC assessments from four agency physicians.
We find this evidence sufficient to support the ALJ’s conclusion that the Plaintiff was not disabled.
Swink v. Saul, 931 F.3d 765, 770 (8th Cir. 2019) (holding ALJ permitted to issue decision without
obtaining additional medical evidence where other evidence in record provided sufficient basis for
decision).
Plaintiff’s argument that the ALJ must adopt the opinions of the agency physicians in toto,
is also misplaced. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (“[T]he ALJ is not required
to rely entirely on a particular physician’s opinion or choose between the opinions of any of the
claimant’s physicians.). An ALJ is free to accept only those portions of the assessments he finds
to be supported by the overall record. See Webster v. Kijakazi, 19 F.4th 715, 719 (5th Cir. 2021)
(while ALJ did not adopt opinion verbatim which limited claimant to minimal interaction with
others, ALJ incorporated opinion by limiting claimant to occasional public contact, and RFC
assessment was supported by substantial evidence); Krogmeier v. Barnhart, 294 F.3d 1019, 1024
(8th Cir. 2002) (substantial evidence supported RFC determination based on medical records,

consultant and other medical opinions, and some aspects of claimant’s testimony). Further, an
ALJ may also rely on the opinions of Agency physicians if he “sufficiently explain[s] the
inconsistencies” in the treating physicians’ opinions that led the ALJ to “give greater weight to the
consultative opinion.” Kraus v. Saul, 988 F.3d 1019, 1025-1026 (8th Cir. 2021). Because the ALJ
did so in this case, no error was committed.
Further, the Plaintiff has also failed to put forth additional functional assessments to
establish prejudice resulting from the ALJ’s failure to order additional RFCs. See Haley v.
Massanari, 258 F.3d 742, 750 (8th Cir. 2001) (quoting Shannon v. Chater, 54 F.3d 484, 488 (8th
Cir. 1995) (holding reversal “due to failure to develop the record is only warranted where such

failure is unfair or prejudicial”)). Therefore, reversal is not required.
B. Step Two Findings
In his second argument, the Plaintiff insists that the ALJ failed to consider his right ear
deafness, severe hand trauma, PTSD, and developmental/learning disability at Step Two. At Step
Two, a claimant has the burden of providing evidence of functional limitations in support of their
contention of disability. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). “An impairment is
not severe if it amounts only to a slight abnormality that would not significantly limit the claimant’s
physical or mental ability to do basic work activities.” Id. (citing Bowen v. Yuckert, 482 U.S. 137,
153 (1987)); 20 C.F.R. § 416.922(a). “If the impairment would have no more than a minimal
effect on the claimant’s ability to work, then it does not satisfy the requirement of step two.” Id.
(citing Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)). Failure to find a particular
impairment to be severe at Step Two, however, is not a reversible error unless the ALJ ends his
analysis at Step Two. See Bowen, 482 U.S. at 156-157 (“failure to find a particular impairment
severe at step two is not reversible error as long as the ALJ finds that at least one other impairment

is severe”); Valley v. Astrue, 2011 WL 5999260, at *2 (E.D. Ark. Nov. 29, 2011) (step two error
harmless where ALJ proceeded past step two and considered all of claimant’s impairments).
As previously mentioned, the ALJ concluded that the Plaintiff had severe impairments,
namely seizure disorder status post TBI with craniotomy, persistent depressive disorder,
intermittent explosive disorder, and antisocial personality disorder as severe impairments. (ECF
No. 10, pp. 19-20). He then proceeded through the sequential process, concluding that the Plaintiff
was not disabled because the combination of his impairments, both severe and non-severe, do not
prevent him from performing work that exists in significant numbers in the national economy. As
such, any error at Step Two is harmless.

C. Subjective Complaints Analysis
The Plaintiff also asserts that the ALJ failed to properly consider his subjective complaints.
Aside from considering the findings of the treating and examining physicians, he maintains that
the ALJ failed to identify any inconsistencies in the record.
An ALJ is required to consider all the evidence relating to a claimant’s subjective
complaints, including: (1) Plaintiff’s daily activities; (2) the duration, frequency, and intensity of
the pain; (3) precipitation and aggravating factors; (4) dosage, effectiveness, and side effects of
medication; and (5) functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984). In so doing, the ALJ must also consider the claimant’s prior work record, observations
made by third parties, and the opinions of treating and examining physicians. Id. The Eighth
Circuit has held, however, that an ALJ is not required to discuss each Polaski factor methodically.
Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005); Brown v. Chater, 87 F.3d 963, 966 (8th Cir.
1996). The ALJ’s analysis will be accepted if the opinion reflects acknowledgment and
consideration of the factors before discounting the claimant’s subjective complaints. Lowe v.

Apfel, 226 F.3d 969, 972 (8th Cir. 2000); see also Brown, 87 F.3d at 966.
While the ALJ may not discount the Plaintiff’s subjective complaints solely because the
medical evidence fails to support them, he may disbelieve subjective reports that are inherently
inconsistent with other evidence. Id.; see also 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)).
Thus, when, as here, the ALJ considers the relevant factors and discredits the Plaintiff’s complaints
for good reason, the decision will be upheld. Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001).
The ALJ properly considered the Plaintiff’s subjective complaints and testimony, as well
as the relevant medical evidence. (ECF No. 10, p. 23). The Plaintiff indicated that he stopped

working in December 2018 after experiencing TBI with residuals to include seizures and chronic
right sided head pain. Although the seizures appeared without warning, they only occurred once
every four or five months. (Id. at 42-43). And, as the ALJ documented, he only experienced four
seizures between September 2019 and September 2020. PA Booker even noted his seizure
disorder to be stable on medication. (ECF No. 10, pp. 372-380, 445-452, 539-545). See Patrick
v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003) (holding if an impairment can be controlled by
treatment or medication, it cannot be considered disabling). And although he did report some
headaches to his physicians, they were not of the same severity and/or intensity he reported at the
hearing. (Id. at 43-44, 49). Further, although he did report some use of marijuana to his physicians,
the Plaintiff testified that he had not been prescribed any pain medication to treat his headaches.
The Plaintiff also experienced some residual pain and stiffness in his right hand/wrist
following the accident in 2018. Acknowledging Dr. Carlson’s July 2019 documentation of 50%
normal grip strength in the right hand with limitations holding a pen and writing and touching

fingers to palm, the ALJ properly concluded that the Plaintiff’s ability to use said hand improved
after Dr. Heim performed tenolysis of the extensor tendon of the right ring and middle fingers in
August 2019. (ECF No. 10, pp. 308-312, 394-404, 425-428; ECF No. 10-1, pp. 208-220; ECF
No. 10-3, pp. 281-282, 529-530). By October 2019, he could make a full fist, although he remained
sore. (ECF No. 10, pp. 321-325, 396-398; ECF No. 10-3, pp. 631-634, 706-709). Further, during
a follow-up telephone call in April 2020, the Plaintiff reported doing well with no pain and no
problems. (ECF No. 10, p. 390).
In addition, the record indicates that the Plaintiff suffered from some dizzy spells,
sensorineural hearing loss in the right ear, and borderline hearing loss in the left ear. Interestingly,

these symptoms did not begin until approximately one year after his TBI. But, regardless of the
timing, Plaintiff admitted that his vertigo was responsive to Antivert/Meclizine. See Patrick, 323
at 596. Further, despite his hearing loss, there is no evidence in the record to indicate that he was
unable to hear his physicians and/or treatment providers and did not require his attorney and/or the
ALJ to repeat questions at the administrative hearing. (Id. at 36-53). See Lacroix v. Barnhart, 465
F.3d 881, 889 (8th Cir. 2006) (holding that fact that plaintiff did not have trouble hearing or
understanding the ALJ weighed against claim for disability). And no intervention was prescribed.
Thus, it seems clear that the Plaintiff’s hearing impairment did not significantly affect his ability
to function in society.
Mentally, the Plaintiff reported difficulties with anger management, focus, and memory.
We note, however, that despite his alleged memory issues, mental status exams fail to support his
assertion. Dr. Walz even found him to be a good historian with no significant memory deficits
apparent on examination. (ECF No. 10, pp. 301-306). She concluded that his attention and
concentration were impaired, and his thought processes and speed of information were slow.

Additionally, despite his purported anger issues, he reportedly got along well with others,
including authority figures. (Id. at 227-234). And the Plaintiff reported no history of being laid
off or fired from a job due to his alleged anger or irritability. Therefore, while we do not doubt
that he experiences a level of anger and frustration, it does not appear from the record to
significantly affect his ability to interact with others.
The ALJ also acknowledged Plaintiff’s self-reported activities, which were said to include
watching television, caring for his emotional support dog, cooking, performing light house chores,
maintaining relationships, socializing with friends and family, shopping for groceries, and
managing his personal care. (ECF No. 10, pp. 227-234). This evidence, coupled with the

assessments of Drs. Hazlewood, Snyder, Jordan, and Morrisey, indicate that the Plaintiff was much
less limited, both physically and mentally, than he has alleged.
Accordingly, we find that the ALJ properly considered the Plaintiff’s subjective complaints
and discussed the inconsistencies contained in the record. His decision was not based solely on
the absence of objective medical evidence to support the Plaintiff’s complaints.
D. RFC Determination
In his final argument, the Plaintiff avers that the ALJ’s RFC determination is not supported
by substantial evidence. RFC is the most a person can do despite that person’s limitations. 20
C.F.R. § 416.945. A disability claimant has the burden of establishing his RFC. Vossen, 612 F.
3d at 1016. “The ALJ determines a claimant’s RFC based on all relevant evidence in the record,
including medical records, observations of treating physicians and others, and the claimant’s own
descriptions of his or her limitations.” Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010);
Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009). Limitations resulting from symptoms such
as pain are also factored into the assessment. 20 C.F.R. § 416.945(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.” Miller, 784 F.3d at 479 (citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001)). Therefore, an ALJ’s determination concerning a claimant’s RFC must be supported by
medical evidence that addresses the claimant’s ability to function in the workplace. Perks v.
Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012).
The ALJ considered Dr. Carlson’s July 2019 findings, but as previously mentioned, found
that the overall record showed improvement in the Plaintiff’s functional use of his right hand/wrist
following surgery in August 2019. (ECF No. 10-1, pp. 208-220; ECF No. 10-3, pp. 281-282, 529-
530). Thus, he concluded that Dr. Carlson’s opinion was not persuasive.

The ALJ also found Dr. Schlabach’s opinion that the Plaintiff should not be operating a
motor vehicle or motorized tools but should be able to do manual labor activity with other tools to
be somewhat persuasive. (ECF No. 10, pp. 327-331, 452-456). The ALJ noted, however,
Plaintiff’s largely unremarkable neurological workup as weighing against Dr. Schlabach’s limited
opinion.
Additionally, the ALJ discussed the opinions of Drs. Hazlewood and Snyder, concluding
that the Plaintiff could perform light work with no exposure to hazards such as machinery and/or
heights. (ECF No. 10, pp. 65-67, 88-92). He ultimately concluded that these assessments were
supported by a thorough review and summary of the Plaintiff’s medical records, including the
records detailing his treatment for TBI and seizures and the absence of medical evidence to show
neurological and physical deficits.
From a mental perspective, the ALJ found Dr. Walz’s conclusions to be largely
unpersuasive, as they were vague, did not point to any specific work limitations, and were not
supported by the overall record. He noted the consistent mental status examinations showing no

significant deficits and the absence of both psychotropic medication and formal mental health
treatment. See Kirby, 500 F.3d at 709 (holding absence of formal treatment is a significant
consideration when evaluating Plaintiff’s allegations of disability due to a mental impairment).
As for Drs. Jordan and Morrisey, the ALJ found their opinions to be both persuasive and
supported by the overall record. They concluded the Plaintiff could perform interpersonal contact
that is incidental to the work performed, where the complexity of the tasks is learned and
performed by rote with few variables, little judgment, and the supervision required is simple,
direct, and concrete. We agree that these assessments are consistent with a diagnosis of mood
disorder with no evidence of suicidal ideation, psychosis, paranoia, or hallucinations and are

supported by Plaintiff’s own statements regarding his interaction with others.
Thus, while the Plaintiff bears the burden of producing evidence to establish his RFC, the
RFC is ultimately a determination reserved solely for the Commissioner. See Vossen, 612 F. 3d
at 1016; see also Perks, 687 F.3d at 1092-1093. It need not track or be based on any particular
medical opinion. See Twyford, 929 F.3d at 518. Accordingly, we find substantial support in the
record for the ALJ’s RFC determination.
VI. 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 (ECF No. 2) 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 27th day of November 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/10632895. Public record. Not legal advice.