Smith v. Social Security Administration, No. 1:2016cv00150 - Document 15 (E.D. Ark. 2017)
Court Description: MEMORANDUM OPINION AND ORDER dismissing Smith's complaint; and denying all requested relief. Judgment will be entered for the Commissioner. Signed by Magistrate Judge Patricia S. Harris on 7/13/2017. (ljb)
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Smith v. Social Security Administration Doc. 15 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION ELMER SMITH PLAINTIFF v. NO. 1:16-cv-00150 PSH NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff Elmer Smit h (“ Smit h” ) began t his case by filing a complaint pursuant t o 42 U.S.C. 405(g). In t he complaint , he challenged t he final decision of t he Act ing Commissioner of t he Social Securit y Administ rat ion (“ Commissioner” ), a decision based upon findings made by an Administ rat ive Law Judge (“ ALJ” ). Smit h maint ains t hat t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. 1 It is Smit h’ s cont ent ion t hat his residual funct ional capacit y was erroneously assessed. He so maint ains for t he following t hree reasons: 1) t he record does not cont ain a physical or ment al residual funct ional capacit y assessment from a t reat ing or examining physician, 2) t here is not hing t o support t he ALJ’ s finding t hat Smit h is capable of performing t he st anding and walking requirement s of light work, and 3) Smit h has great er ment al limit at ions t han t he ALJ found. The quest ion for t he Court is whet her t he ALJ’ s findings are support ed by subst ant ial evidence on t he record as a whole. “ Subst ant ial evidence means less t han a preponderance but enough t hat a reasonable person would find it adequat e t o support t he decision.” See Boet t cher v. Ast rue, 652 F.3d 860, 863 (8t h Cir. 2011). 1 Dockets.Justia.com The ALJ is required t o assess t he claimant ’ s residual funct ional capacit y, which is a det erminat ion of “ t he most a person can do despit e t hat person’ s limit at ions.” See Brown v. Barnhart , 390 F.3d 535, 538-39 (8t h Cir. 2004). The assessment is made using all of t he relevant evidence in t he record, but t he assessment must be support ed by some medical evidence. See Wildman v. Ast rue, 596 F.3d 959 (8t h Cir. 2010). As a part of making t he assessment , t he ALJ must evaluat e t he claimant ’ s subj ect ive complaint s. See Pearsall v. Massanari, 274 F.3d 1211 (8t h Cir. 2001). The ALJ does so by considering t he medical evidence and evidence of t he claimant 's daily act ivit ies; t he durat ion, frequency, and int ensit y of his pain; t he dosage and effect iveness of his medicat ion; precipit at ing and aggravat ing fact ors; and f unct ional rest rict ions. See Id. at 1218 [cit ing Polaski v. Heckler, 739 F.2d 1320 (8t h Cir. 1984)]. Smit h alleged in his applicat ions for disabilit y insurance benefit s and supplement al securit y income payment s t hat he became disabled beginning on May 8, 2013. He alleged t hat he became disabled beginning on t hat dat e as a result of impairment s t hat include depression, diabet es, neuropat hy, hypert ension, j oint pain, right knee surgery, back pain, headaches, blurred vision, ost eoart hrit is, and degenerat ive disc disease. He ably summarized t he t est imonial, document ary, medical, and psychological evidence in t he record, see Document 13 at CM/ ECF 2-18, and t he Commissioner did not challenge t he summary or ot herwise place any of it in disput e. The Court accept s t he summary as a fair summat ion of all t he evidence. The summary will not be reproduced, save t o not e several mat t ers germane t o t he issues raised in t he part ies’ briefs. 2 On January 9, 2012, or approximat ely sixt een mont hs before t he alleged onset dat e, Smit h was seen by Dr. Michael Spat aro, M.D., (“ Spat aro” ) for a consult at ive examinat ion. See Transcript at 363-367. Spat aro assessed Smit h’ s ment al st at us/ psychiat ric condit ion and found not hing remarkable. Spat aro performed a physical examinat ion and found evidence t o subst ant iat e Smit h’ s complaint s of pain in his shoulders, lower back, hips, knees, and f eet . Spat aro offered t he following opinions regarding Smit h’ s abilit y t o perform work-relat ed act ivit ies: Based on t oday’ s examinat ion, I believe t he claimant has mild t o moderat e limit at ions t o sit , walk, and st and for a full workday secondary t o chronic lower back pain, hip pain, knee pain, and foot pain. He has mild t o moderat e limit at ions t o rout inely lift and carry heavy obj ect s secondary t o same, as well as int ermit t ent neck pain and shoulder pain bilat erally. There are no limit at ions t o hold a conversat ion and respond appropriat ely t o quest ions. There are no limit at ions t o carry out and remember inst ruct ions. ... See Transcript at 366. Bet ween Oct ober 12, 2012, and July 18, 2015, Smit h was seen at t he Whit e River Medical Cent er on what appears t o have been approximat ely sixt een occasions. See Transcript at 459-493 (10/ 12/ 2012-10/ 13/ 2012), 494-499 (12/ 09/ 2012), 506-510 (01/ 24/ 2013), 516-521 (04/ 14/ 2013), 528-535 (05/ 16/ 2013), 543-548 (05/ 19/ 2013), 550-558 (06/ 13/ 2013), 561-564 (10/ 03/ 2013), 369-379, 570-586 (10/ 31/ 2013- 11/ 04/ 2013), 621-624 (04/ 30/ 2014), 827-832 (06/ 21/ 2014), 1032-1034 (11/ 11/ 2014), 987-992 (06/ 15/ 2015), 1040-1044 (07/ 05/ 2015), 1104-1108 (07/ 18/ 2015), 1099-1102 (10/ 08/ 2015). He was seen for complaint s t hat included abdominal pain, elevat ed blood sugar, hallucinat ions, low back pain, headaches, right arm numbness, suicidal t hought s, dizziness, and leg pain. 3 The Whit e River Medical Cent er progress not es reflect , int er alia, t hat a CT scan of Smit h’ s lumbar spine was performed on June 13, 2013, aft er he inj ured his back in a fall. See Transcript at 558. The result s of t he t est ing revealed art hrit ic changes wit h small disc bulges at t he L3-4 and L5-S1 levels. Smit h was hospit alized at t he Whit e River Medical Cent er from Oct ober 31, 2013, t hrough November 4, 2013, aft er experiencing t hought s of suicide. See Transcript at 369-379, 570-586. A medical hist ory was compiled and included t he following selfreport s and observat ions: ... [Smit h] has had depression for some t ime now. He has mult iple medical problems, including diabet es, chronic pain, ost eoart hrit is, degenerat ive disc disease, and neuropat hy. At t his t ime, he is unable t o work, which has definit ely made his mood worse. He expresses some hopelessness and helplessness. He is on a variet y of different medicat ions, and t reat ment of his pain has been complicat ed. Thankfully, he has not used opioid medicat ions, and so t his is not an issue; however, he would like t o get some relief from his pain. He would cert ainly like t o go back t o work. He has not been able t o get disabilit y. He is current ly t aking aspirin, lisinopril, met formin and insulin; diclofenac for pain, amit ript yline for pain, Naprosyn for pain; simvast at in and fluoxet ine. See Transcript at 370. Dr. James St anley, M.D., (“ St anley” ) assessed Smit h’ s ment al st at us/ psychiat ric condit ion and observed t hat he was alert and fully orient ed and exhibit ed a depressed mood, a congruent affect , and a goal-direct ed and logical t hought process. St anley observed t hat Smit h “ appear[ed] t o funct ion wit hin t he broad limit s of average” cognit ive abilit y. See Transcript at 371. St anley addit ionally observed t hat Smit h’ s gait was wit hin normal limit s. St anley diagnosed, int er alia, a maj or depressive disorder. St anley cont inued Smit h’ s medicat ion, advised him t o follow-up wit h his primary care physician, and advised him seek ment al healt h t reat ment . 4 Smit h present ed t o t he Whit e River Medical Cent er on April 30, 2014, complaining of back pain. See Transcript at 621-624. He report ed t hat he had been experiencing pain for several years, and it was becoming progressively worse. He report ed t hat it was not cont rolled wit h rest , act ivit y modificat ion, or medicat ion. He report ed t hat aggravat ing fact ors included walking and st anding. Dr. Meraj Siddiqui, M.D., (“ Siddiqui” ) nevert heless observed t hat Smit h had a normal gait and st at ion and exhibit ed normal muscle st rengt h and t one in his ext remit ies. Siddiqui did observe, t hough, t hat palpat ion and hyperext ension of Smit h’ s lumbar facet j oint s produced low back pain. Siddiqui diagnosed back pain and recommended, int er alia, lumbar medial branch blocks. Smit h present ed t o t he Whit e River Medical Cent er on June 15, 2015, complaining of lower ext remit y pain. See Transcript at 987-992. Upon physical examinat ion, he was found t o have a normal range of mot ion in his ext remit ies and no neurologic abnormalit ies. Test ing revealed mild soft t issue swelling in his left leg. Smit h present ed t o t he Whit e River Medical Cent er on Oct ober 8, 2015, for cont inued complaint s of back pain. See Transcript at 1099-1102. Smit h report ed t hat his medicat ion included meloxicam, gabapent in, and Flexeril, and t he medicat ion had “ helped some.” See Transcript at 1099. Dr. Neeraj Kumar, M.D., (“ Kumar” ) observed t hat Smit h had pain wit h palpat ion of t he lumbar facet j oint s at L3-L4, L4-L5, and L5S1. Kumar diagnosed, int er alia, “ [l]umbosacral spondylosis wit hout myelopat hy,” lumbago, and chronic pain syndrome. See Transcript at 1101. His recommendat ions included lumbar medial branch blocks. Kumar st art ed Smit h on Tramadol, changed t he Flexeril t o t izanidine, but ot herwise cont inued him on his medicat ion. 5 Bet ween November 7, 2013, and March 11, 2014, Smit h was seen at Healt h Resources of Arkansas on what appears t o have been approximat ely seven occasions. See Transcript at 645-650 (10/ 31/ 2013), 644 (11/ 07/ 2013), 638-643 (11/ 12/ 2013), 635637 (11/ 27/ 2013), 634 (01/ 06/ 2014), 633 (01/ 21/ 2014), 631-632 (03/ 11/ 2014). The progress not es reflect t hat he repeat edly report ed a depressed mood, feelings of wort hlessness because he could not work, and, at t imes, suicidal ideat ions. He report ed t hat he had t rouble sleeping and maint aining concent rat ion. He also report ed becoming angry over small t hings. A maj or depressive disorder was diagnosed on at least t hree occasions, and it appears t hat he was t aking Prozac and amit ript yline during t hat period of t ime for his sympt oms, see Transcript at 640, 644. Bet ween February 19, 2014, and June 16, 2015, Smit h sought t reat ment for his leg problems on what appears t o have been approximat ely four occasions at t he Medical Park Ort hopaedic Clinic. See Transcript at 445-448 (02/ 19/ 2014) 449-452 (02/ 24/ 2014), 453-455 (02/ 27/ 2014), 1036-1038 (06/ 16/ 2015). An MRI revealed a right medial meniscus t ear, and surgery was performed on February 27, 2014, t o repair t he t ear. When he present ed on June 16, 2015, a rupt ured t endon in his left leg was diagnosed, and he was prescribed a walking boot . Bet ween April 30, 2014, and July 6, 2015, Smit h was seen at t he Oak Park Medical Office on what appears t o have been approximat ely six occasions. See Transcript at 678-682 (04/ 30/ 2014), 976-979 (05/ 21/ 2014), 944-948 (10/ 21/ 2014), 1077-1081 (11/ 18/ 2014), 1085-1087 (06/ 17/ 2015), 1091-1093 (07/ 06/ 2015). He was seen for complaint s t hat included depression; chest , back, and hand pain; anxiet y; headaches; abdominal pain; and problems relat ed t o his diabet es. 6 The Oak Park Medical Office not es reflect , int er alia, t hat when Smit h was seen on April 30, 2014, a musculoskelet al examinat ion produced largely normal findings. See Transcript at 678-682. He had normal st rengt h and t one in his lower ext remit ies, his gait was normal, and he was able t o st and wit hout difficult y. A ment al st at us examinat ion revealed t hat he was orient ed t o person, place, and t ime; his memory was int act ; and his at t ent ion and concent rat ion were wit hin normal limit s. On May 21, 2014, an Oak Park Medical Office advanced pract ice regist ered nurse (“ APRN” ) complet ed a migraine headache form on behalf of Smit h. See Transcript at 653. Smit h report ed having daily headaches for t wo t o t hree hours in durat ion but report ed good result s wit h ibuprofen. The APRN did not e, t hough, t hat Smit h had never been t reat ed for headaches at t he Oak Park Medical Office. Smit h was last seen at t he Oak Park Medical Office on July 6, 2015. See Transcript at 1091-1093. A musculoskelet al examinat ion revealed t enderness t o palpat ion in his spine, but he nevert heless had a full range of mot ion and normal st rengt h and t one. He had diffuse t enderness t o palpat ion in his lower left ext remit y, and mild pain was elicit ed on palpat ion of his left leg calf. A ment al st at us examinat ion was unremarkable. An assessment of Smit h’ s physical residual funct ional capacit y was made by t wo st at e agency physicians, Dr. Ronald Davis, M.D., (“ Davis” ), see Transcript at 101-104, 121-124, and Dr. Lucy Sauer, M.D., (“ Sauer” ), see Transcript at 145-147, 166-168. They opined t hat Smit h is capable of, int er alia, lift ing and/ or carrying t went y pounds frequent ly and t en pounds occasionally. They also opined t hat he is capable of st anding, walking, and sit t ing for about six hours in an eight hour workday but has limit at ions in his abilit y t o push and pull wit h his lower ext remit ies because of his knee surgery. 7 An assessment of Smit h’ s ment al residual funct ional capacit y was made by t wo st at e agency physicians, Dr. Jon Et ienne Mourot , Ph.D., (“ Mourot ” ), see Transcript at 104-106, 124-126, and Dr. Susan Daughert y, Ph.D., (“ Daughert y” ), see Transcript at 147-149, 168-170. They agreed t hat Smit h has moderat e limit at ions caused by depression and anxiet y but is capable of performing simple, repet it ive one t o t wo st ep t asks wit h limit ed public or int erpersonal cont act . The record cont ains a hist ory of Smit h’ s report able earnings for t he years 1980 t hrough 2015. See Transcript at 264-267. The hist ory reflect s t hat he had report able earnings t hrough 2010, alt hough he t est ified during t he administ rat ive hearing t hat he had self-employment earnings t hrough 2013. See Transcript at 43-44. Smit h and his wife complet ed a series of document s in connect ion wit h his applicat ions for disabilit y insurance benefit s and supplement al securit y income payment s. See Transcript at 281-292, 293-302, 303-305, 306-313, 314-315, 321-327, 350-351. In t he document s, it was represent ed t hat he was t aking prescript ion and overt he-count er medicat ion for insomnia, st omach problems, back and knee pain, diabet es, hypert ension, neuropat hy, depression, and high cholest erol. He represent ed t hat he can at t end t o his own personal care but cannot prepare meals or perform any house or yard work. Smit h has t rouble get t ing around, has no hobbies or int erest s, and does not engage in social act ivit ies. He prefers t o be left alone and t ypically spends t he day by himself. A t ypical day consist s of get t ing dressed, t aking his medicat ion, eat ing his meals, wat ching t elevision, and rest ing. He can lift bet ween fift een t o t went y pounds and can walk for about t en minut es before t he pain in his knees becomes so severe t hat he must st op and rest . 8 Smit h t est ified during t he administ rat ive hearing. See Transcript at 41-56. He was born on Oct ober 25, 1967, and was fort y-seven years old at t he t ime of t he hearing. He t ook special educat ion classes in school and only complet ed t he sixt h grade. He cannot read or writ e but can do basic mat hemat ics. He t ook insulin for his diabet es, which helped t reat t he impairment , but he st opped t aking t he medicat ion when his healt h insurance was cancelled. Wit hout t he insulin, he becomes forget ful and loses t rack of t hings. Smit h experiences neuropat hy, which causes his hands and feet t o hurt . He can be on his feet for about an hour before he experiences pain. He also experiences pain in his back, pain he at t ribut ed t o art hrit is. The ALJ found at st ep t wo t hat Smit h has severe impairment s in t he form of “ diabet es mellit us, obst ruct ive sleep apnea, residual of right knee surgery, hypert ension, obesit y, periodic limb movement disorder, anxiet y, and depression.” See Transcript at 14. The ALJ assessed Smit h’ s residual funct ional capacit y and found t hat he can perform “ less t han t he full range of light work ...” See Transcript at 24. The ALJ found t hat Smit h’ s impairment s cause t he following addit ional limit at ions: ... The claimant can occasionally st oop, kneel, crouch, and crawl. He cannot work around hazards such as unprot ect ed height s or dangerous machinery. He is limit ed t o performing simple, rout ine t asks. He is limit ed t o incident al int erpersonal cont act . He can t olerat e only occasional changes in a rout ine work set t ing. See Transcript at 24. In making t he foregoing findings, t he ALJ gave great weight t o t he opinions offered by Nix, Davis, Sauer, Mourot , and Daughert y. The ALJ found at st ep four t hat Smit h cannot ret urn t o his past relevant work but found at st ep five t hat t here was ot her work he can perform. 9 Smit h has limit at ions caused primarily by back pain, knee pain, and depression. The quest ion for t he ALJ was t he ext ent t o which t he limit at ions impact t he most Smit h can do. The ALJ incorporat ed limit at ions for t he impairment s int o t he assessment of Smit h’ s residual funct ional capacit y but found t hat he was not disabled for purposes of t he Social Securit y Act . The ALJ could find as he did because subst ant ial evidence on t he record as a whole support s his considerat ion of t he evidence and his assessment of Smit h’ s residual funct ional capacit y. The Court so finds for t hree reasons. First , t he ALJ adequat ely considered t he medical evidence relevant t o Smit h’ s physical limit at ions. For inst ance, t he ALJ not ed t he result s of t he June 13, 2013, CT scan which revealed art hrit ic changes in Smit h’ s back wit h small disc bulges at L3-4 and L5-S1. The ALJ not ed t hat Smit h underwent surgery on February 27, 2014, t o repair a right medial meniscus t ear, and Smit h report ed at a follow-up examinat ion t hat he was “ doing bet t er” but was st ill experiencing some pain. See Transcript at 682. The ALJ also not ed Siddiqui’ s observat ions during t he April 30, 2014, examinat ion, observat ions t hat Smit h had a normal gait and st at ion, normal muscle st rengt h and t one in his upper and lower ext remit ies, but palpat ion and hyperext ension of t he lumbar facet j oint s produced low back pain. The ALJ not ed t he findings of t he June 15, 2015, emergency room examinat ion, findings t he ALJ could and did charact erize as “ largely normal.” See Transcript at 26. The findings reflect t hat Smit h had a normal range of mot ion in his ext remit ies and no neurologic abnormalit ies. Test ing did reveal, t hough, mild soft t issue swelling in his left leg. When Smit h present ed t o t he Medical Park Ort hopaedic Clinic on June 16, 2015, a rupt ured t endon in his left leg was diagnosed, and he was prescribed a walking boot . 10 Clearly, Smit h has mild t o moderat e degenerat ive j oint disease. When he was seen at t he Oak Park Medical Office on April 30, 2014, t hough, a musculoskelet al examinat ion produced largely normal findings. Specifically, he had normal st rengt h and t one in his lower ext remit ies, his gait was normal, and he was able t o st and wit hout difficult y. When Smit h was seen on July 6, 2015, a musculoskelet al examinat ion revealed t enderness t o palpat ion in his spine and diffuse t enderness t o palpat ion in his lower left ext remit y. Nevert heless, he exhibit ed a full range of mot ion and normal st rengt h and t one. Second, t he ALJ adequat ely considered t he medical evidence relevant t o Smit h’ s ment al limit at ions. For inst ance, t he ALJ not ed t hat Smit h sought medical at t ent ion for suicidal ideat ions during 2013 and 2014. The ALJ could and did find, t hough, t hat Smit h’ s ment al and/ or cognit ive funct ioning event ually improved, part icularly aft er a five day hospit alizat ion. 2 When Smit h was discharged aft er t he five day hospit alizat ion, St anley observed t hat Smit h was alert and fully orient ed, had a congruent affect , a goal-direct ed and logical t hought process, but manifest ed a depressed mood. St anley addit ionally observed t hat Smit h “ appear[ed] t o funct ion wit hin t he broad limit s of average” cognit ive abilit y. See Transcript at 371. When Smit h was seen at t he Oak Park Medical Office on April 30, 2014, a ment al st at us examinat ion revealed t hat he was orient ed t o person, place, and t ime; his memory was int act ; and his at t ent ion and concent rat ion were wit hin normal limit s. When he was seen at t he Oak Park Medical Office on July 6, 2015, a ment al st at us examinat ion revealed unremarkable findings. “Because individuals with a mental illness may experience periods during which they are relatively symptom free,” the Court recognizes that “their level of functioning can vary significantly over time.” See Mabry v. Colvin, 815 F.3d 386, 392 (8th Cir. 2016). 2 11 Third, t he ALJ adequat ely considered t he non-medical evidence relevant t o Smit h’ s physical and ment al limit at ions. For inst ance, t he ALJ considered Smit h’ s daily act ivit ies. Alt hough Smit h can at t end t o his own personal care and represent ed he can lift bet ween fift een t o t went y pounds, he cannot prepare meals or perform any house or yard work. He has t rouble get t ing around, has no hobbies or int erest s, and does not engage in social act ivit ies. He prefers t o be left alone and t ypically spends t he day by himself. There is lit t le evidence, t hough, t o support such an ext reme limit at ion of his act ivit ies. It is conceivable t hat t he limit at ion of his act ivit ies is t he product of a personal choice and not t he result of his impairment s. Smit h t akes prescript ion medicat ion for his pain, and lumbar medial branch blocks have been recommended. Alt hough he report ed having severe headaches, he rarely sought t reat ment for t hem and report ed having good result s wit h ibuprofen. He t akes prescript ion medicat ion for his depression and anxiet y, medicat ion t hat has included Prozac, and he appears t o have gained some benefit from t he medicat ion. The ALJ gave lit t le ment ion t o t he remaining Polaski v. Heckler fact ors, but his failure t o give great er considerat ion t o t hose fact ors does not warrant a remand. The evidence relevant t o t he fact ors is minimal. Smit h challenges t he assessment of his residual funct ional capacit y because t he record does not cont ain a physical or ment al residual funct ional capacit y assessment from a t reat ing or examining physician. Alt hough it is t rue t hat t here is no such assessment , a remand is not warrant ed. “ [T]here is no requirement t hat a [residual funct ional capacit y] finding be support ed by a specific medical opinion,” see Hensley v. Colvin, 829 F.3d 926, 932 (8t h Cir. 2016), and t he record in t his case cont ains ample 12 evidence for t he ALJ t o have made an informed decision. Specifically, t he ALJ could and did rely upon t he findings and observat ions of t he medical professionals during t heir examinat ions of Smit h. The ALJ could and did also rely t o some ext ent upon t he opinions of t he st at e agency physicians, who opined t hat Smit h is capable of st anding, walking, and sit t ing for about six hours in an eight hour workday and is capable of performing simple, repet it ive one t o t wo st ep t asks wit h limit ed public or int erpersonal cont act . Smit h challenges t he assessment of his residual funct ional capacit y because t here is no evidence he is capable of sat isfying t he st anding and walking requirement s of light work. The ALJ, t hough, could find as he did. Smit h has back pain, but t he findings and observat ions of t he medical professionals wit h regard t o his gait , st at ion, range of mot ion, and muscle st rengt h and t one were largely unremarkable. Moreover, alt hough t he opinions of t he st at e agency physicians are cert ainly not ent it led t o great weight , t he ALJ could and did give t he opinions some weight . The physicians opined t hat Smit h is capable of performing t he requisit e st anding and walking. Smit h challenges t he assessment of his residual funct ional capacit y because he has great er ment al limit at ions t han t he ALJ found. The ALJ, t hough, could find as he did. It is t rue t hat Smit h sought t reat ment for his ment al impairment s on several occasions and was even hospit alized for suicidal ideat ions. The progress not es from his examinat ions at t he Oak Park Medical Office, t hough, cont ain unremarkable findings. Moreover, t he ALJ could and did rely t o some ext ent upon t he opinions of Mourot and Daughert y, bot h of whom opined t hat Smit h has moderat e limit at ions caused by depression and anxiet y but is capable of performing simple, repet it ive one t o t wo st ep t asks wit h limit ed public or int erpersonal cont act . 13 The governing st andard in t his case, i.e., subst ant ial evidence on t he record as a whole, allows for t he possibilit y of drawing t wo inconsist ent conclusions; it t herefore embodies a zone of choice wit hin which t he ALJ may decide t o grant or deny benefit s wit hout being subj ect t o reversal. See Culbert son v. Shalala, 30 F.3d 934 (8t h Cir. 1994). In t his inst ance, t he ALJ’ s assessment of Smit h’ s residual funct ional capacit y was wit hin t he zone of choice, and t he ALJ could properly find as he did. Smit h offers a second reason why t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. Smit h maint ains t hat t he record was not fully developed wit h respect t o his illit eracy. The Court cannot agree as t he record cont ains sufficient informat ion for t he ALJ t o have made an informed decision. 3 The ALJ considered Smit h’ s educat ion and found t hat he has a sixt h grade educat ion wit h some special educat ion classes, i.e., he has a “ marginal educat ion.” The ALJ’ s finding is consist ent wit h t he record. Moreover, it is wort h not ing t hat St anley observed Smit h t o be funct ioning wit hin t he broad limit s of average cognit ive abilit y. Alt hough Smit h has limit at ions caused by his educat ion, t he ALJ account ed for t hose limit at ions by rest rict ing Smit h t o t asks t hat are simple and rout ine, involve “ incident al int erpersonal cont act ,” and involve “ only occasional changes in a rout ine work set t ing.” On t he basis of t he foregoing, t he Court finds t hat t here is subst ant ial evidence on t he record as a whole t o support t he ALJ’ s findings. Smit h’ s complaint is dismissed, all request ed relief is denied, and j udgment will be ent ered for t he Commissioner. Error! Main Document Only.The ALJ has an obligation to fully develop the record, even if the claimant is represented by counsel. See Battles v. Shalala, 36 F.3d 43 (8th Cir. 1994). There is no bright line test for determining whether the ALJ fully developed the record; the determination is made on a case by case basis. See Id. It involves examining whether the record contains sufficient information for the ALJ to have made an informed decision. See Pratt v. Astrue, 372 Fed.Appx. 681 (8th Cir. 2010). 3 14 IT IS SO ORDERED t his 13t h day of July, 2017. ________________________________________ UNITED STATES MAGISTRATE JUDGE 15
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