McLaughlin v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

MISTY D. MCLAUGHLIN PLAINTIFF

v. CIVIL NO. 23-2072

MARTIN J. O’MALLEY,1 Commissioner

Social Security Administration DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, Misty D. McLaughlin, 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 her 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 her current application for SSI on January 3, 2020, alleging an

inability to work due to post-traumatic stress disorder, manic depression, bipolar disorder,

degenerative disc disease, left arm nerve damage and scoliosis. (Tr. 47, 195). An administrative

telephonic hearing was held on June 30, 2021, at which Plaintiff appeared with counsel and

testified. (Tr. 14-44). By written decision dated August 3, 2021, the ALJ found Plaintiff maintained

1 Martin J. O’Malley, has been appointed to serve as Commissioner of Social Security

Administration and is substituted as Defendant pursuant to Rule 25(d)(1) of the Federal Rules of

Civil Procedure.

the RFC to perform sedentary work with limitations.2 (Tr. 92-106). On August 20, 2021, Plaintiff

requested a review of the hearing decision by the Appeals Council, who granted Plaintiff’s request

for review on January 12, 2023. (Tr. 187, 190).

On March 29, 2023, after reviewing additional evidence submitted by Plaintiff, the Appeals

Council adopted the ALJ’s statements regarding the pertinent provisions of the Act, the issues in

the case and the evidentiary facts; and the ALJ’s findings and conclusions regarding whether

Plaintiff was disabled during the time period in question. (Tr. 4). Specifically, the Appeals Council

found Plaintiff had the following severe impairments: thoracic spine disc herniation with

Schmorl’s nodule, asthma, depression, anxiety, post-traumatic stress disorder, and personality

disorder with borderline traits. (Tr. 5). After reviewing the evidence presented, the Appeals

Council 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. Id. The Appeals Council found Plaintiff retained the residual functional capacity (RFC) to

perform:

[S]edentary work, as defined in 20 CFR 416.967(a), except the claimant is limited

to occasional stooping, crouching, and bilateral overhead reaching, and frequent

left fingering. The claimant is further limited to no concentrated exposure to dust,

fumes, or other pulmonary irritants, and no extreme heat. The claimant is limited

to performing simple, routine, repetitive tasks with few variables and little

judgment required. The claimant requires supervision that is simple, direct, and

concrete, and social interaction that is incidental to the work performed.

Id. The Appeals Council determined Plaintiff could perform work as a document preparer, an

addresser, and a stuffer. Id.

2 Plaintiff, through her counsel, requested that the ALJ reopen a prior determination. (Tr. 20, 326).

The ALJ found the request timely and indicated that the hearing decision considered all evidence

since the previous application dated April 25, 2019. (Tr. 92).

Subsequently, Plaintiff filed this action. (ECF No. 3). Both parties have filed appeal briefs,

and the case is before the undersigned for report and recommendation. (ECF Nos. 9, 11). 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 her disability by establishing a physical or mental disability that has lasted at least one

year and that prevents her 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 her disability,

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

The Commissioner’s regulations require him 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 her 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 her 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 her residual functional capacity. Id.

III. Discussion:

In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by

substantial evidence in the record. (ECF No. 9). Plaintiff raises the following issues on appeal: A)

The ALJ erred in failing to fully and fairly develop the record; B) The ALJ erred in assessing the

credibility of Plaintiff’s subjective complaints; and C) The ALJ erred in determining Plaintiff’s

RFC.

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 she must also show that she 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 consultative

evaluations. (ECF No. 9. pp. 4-7). Defendant argues substantial evidence shows the ALJ met her

duty to fully and fairly develop the record. (ECF No. 11, pp. 1-7).

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 her 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; she 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.

After reviewing the entire administrative record, the Court finds nothing which establishes

the record was inadequate for the ALJ to make her decision. Plaintiff argues there is no opinion

evidence to support the ALJ’s finding with respect to reaching overhead with her left upper

extremity because the ALJ found the opinion of Dr. Jim Takach, the non-examining medical

consultant, unpersuasive. (ECF No. 9, p. 4). A review of the record revealed that on December 14,

2020, after reviewing the medical evidence, Dr. Takach completed a RFC assessment opining that

Plaintiff could occasionally lift or carry twenty pounds, frequently lift or carry ten pounds; could

stand and/or walk about six hours in an eight-hour workday; could sit about six hours in an eight-

hour workday; could push and/or pull but was limited to occasional use with the left upper

extremity and frequent use of left hand controls; could occasionally stoop and crouch; could

occasionally reach overheard bilaterally; could frequently use her left hand for fine dexterity; and

that visual, communicative and environmental limitations were not evident. (Tr. 79-81). In finding

Dr. Takach’s opinion unpersuasive, the ALJ stated the medical evidence dated after December of

2020, supported a more restrictive exertional limitation - sedentary instead of light- as well as

environmental limits which were included in the RFC determination. However, the ALJ also

included all upper extremity limitations found by Dr. Takach as she determined they were

supported by the record.

With respect to Plaintiff’s mental capabilities, Plaintiff argues that Dr. Steve A. Shry’s

consultative mental diagnostic evaluation is internally inconsistent and that the ALJ should have

recontacted Dr. Shry or ordered an additional consultative evaluation. (ECF No. 9, p.6). A review

of the record revealed Dr. Shry conducted a consultative mental diagnostic evaluation on August

14, 2020, and observed the following:

Claimant appears to be functioning within the Low Above Average Range

intellectually. Claimant is single and has children in DHS custody. She has a 12th

grade education without a history of special education classes. She reports a work

history and stopped working in 2018. She does have a driver’s license. She denied

a history of inpatient treatment, however reported current outpatient treatment. She

is on psychiatric medication. She reports she has been demonstrating symptoms

that have worsened over the last 12 months of crying, depression, social anxiety,

racing thoughts, feelings of panic, nightmares, startle responses, fearful of driving,

avoids people, social isolation, and environmental stress. She appears to meet the

diagnostic criteria for Post Traumatic Stress Disorder, as defined by the DSM-5.

Claimant denied significant mental difficulties attending to daily adaptive

functioning…

(Tr. 646). Dr. Shry further noted Plaintiff reported the ability to take care of her personal hygiene

independently and to manage her own shopping without assistance but noted physical limitations

with performing household chores and experiencing anxiousness in crowds of people. Dr. Shry

opined Plaintiff was able to communicate and interact in a socially adequate manner; to cope with

the typical demands of basic work like tasks; to attend well, noting some impaired ability to attend

and sustain concentration on tasks at times; and to complete work like tasks within acceptable time

frames. Dr. Shry noted Plaintiff did not tolerate frustration well and became tense and anxious

when sirens blasted by the office. Even if the Court determined, which it does not, Dr. Shry’s

evaluation findings were internally inconsistent, the record also consists of Plaintiffs mental health

treatment records and a non-examining medical consultant’s December 2020 assessment

completed by Dr. Abesie Kelly. (Tr. 74-85). After reviewing the evidence of record, to include Dr.

Shry’s evaluation, Dr. Kelly opined Plaintiff retained:

[T]he capacity for work where interpersonal contact is incidental to work

performed, e.g. assembly work; complexity of tasks is learned and performed by

rote, few variables, little judgment; supervision required is simple, direct and

concrete.

(Tr. 77). After reviewing the record, the Court finds that the medical evidence - to include treating

physician records, non-examining and examining medical consultant opinions, individual therapy

notes, diagnostic evaluations, and objective testing - provided an adequate record for the ALJ’s

decision.

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

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

record. Plaintiff has not set forth any evidence showing that had the ALJ required additional

consultative examinations, the ALJ would have arrived at a different decision. Accordingly,

Plaintiff has failed to demonstrate that the record was not fully developed or that she was

prejudiced by any perceived failure to develop the record.

B. Subjective Allegations:

Plaintiff claims the ALJ erred in evaluating her subjective allegations of disability. (ECF

No. 9, p. 7). In assessing the subjective allegations of a claimant, the ALJ is required to examine

and to apply the five factors from Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), or from 20

C. F. R. §416.929. See Shultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 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 at 1322.

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

allegations 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

allegations. 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 claimant’s subjective

allegations are not entirely valid, the ALJ’s determination is entitled to deference. See Id.; Cox v.

Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). The ALJ, however, cannot discount a claimant’s

subjective allegations “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 allegation of pain, the ALJ must make a specific evaluation

of a claimant’s subjective allegations, articulating the reason for discrediting the testimony,

addressing 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 claimant disabled within the strict definition of the Act. The issue is not the

existence of pain, but whether the pain a claimant experiences precludes the performance of

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

In the present action, the ALJ fully complied with Polaski in her evaluation of Plaintiff’s

subjective complaints. (Tr. 94-104). The ALJ’s opinion outlines Plaintiff’s subjective allegations

and noted inconsistencies between those allegations and the record. Id. The ALJ also noted

Plaintiff’s daily activities and set forth the reasons for finding them not as limiting as described by

Plaintiff. Id. Furthermore, the ALJ carefully summarized Plaintiff’s medical records and noted

how she was receiving medication therapy and individual mental health counseling with some

improvement in her symptoms. Bernard v. Colvin, 774 F.3d 482, 488 (8th Cir. 2014) (an

impairment that is “controllable or amenable to treatment [does] not support a finding of total

disability”) (internal quotation omitted). A review of the ALJ’s decision reveals that she properly

supported her findings regarding Plaintiff’s subjective statements based on the medical and other

evidence in the record. Based upon the Court’s review of the record, there is no basis for reversal

on this issue.

C. RFC Determination:

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

with limitations. (Tr. 97). Plaintiff argues the ALJ erred in this RFC determination. (ECF No. 9,

p. 10). 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 her 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. The ALJ provided a thorough summary of Plaintiff's medical records and subjective

complaints in this matter. The ALJ addressed evidence that revealed Plaintiff was able to perform

personal grooming tasks, noting difficulty with her lack of arm strength; to do her laundry and

light housekeeping chores; to socialize by talking on her phone, texting and video chatting; to

make bonfires with others three times a month; to shop for items; and to see her minor children,

who live with their grandparent, and to help them with their homework. The mere fact that Plaintiff

suffers from several impairments does not demonstrate she has more limitations than those found

in the RFC assessment above. In her opinion, the ALJ considered Plaintiff's alleged impairments

and discounted those she found were not credible. The ALJ considered the results of objective

diagnostic tests, examination findings, and therapy notes, and discussed these in the decision. The

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

function reports in assessing the RFC. While Plaintiff argues the ALJ failed to address Plaintiff’s

hospitalization in 2020 due to her post-traumatic stress disorder, a review of the evidence cited by

Plaintiff indicates that Plaintiff was treated for out-patient therapy at Quapaw House (not in-patient

treatment), and the ALJ addressed this evidence in the hearing decision. (Tr. 528, 644).

Plaintiff has the burden of establishing her claimed RFC. See Perks v. Astrue, 687 F. 3d

1086, 1092 (8th Cir. 2012) (burden of persuasion to demonstrate RFC and prove disability remains

on claimant). 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 12th day of March 2024.

isi ( Asset Comateck _

HON. CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE

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