Neal-Adams v. Commissioner of Social Security, No. 2:2017cv01018 - Document 24 (N.D. Iowa 2018)
Court Description: MEMORANDUM ORDER AND OPINION re 3 Complaint filed by Alexandria Neal-Adams: The ALJ's decision is hereby affirmed. Signed by Chief Magistrate Judge CJ Williams on 6/20/2018. (skm)
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Neal-Adams v. Commissioner of Social Security Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION ALEXANDRIA NEAL-ADAMS, Plaintiff, No. 17-CV-1018-CJW vs. NANCY A. BERRYHILL, Acting Commissioner of Social Security, MEMORANDUM ORDER AND OPINION Defendant. ___________________________ The claimant, Alexandria Neal-Adams ( c‘ai’ant ), seeks judicia‘ review “f a fina‘ decisi“n “f the C“’’issi“ner “f S“cia‘ Security ( the C“’’issi“ner ) denying her application for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-34 (Act). Claimant contends that the Administrative Law Judge ( ALJ ) erred in deter’ining that c‘ai’ant was not disabled. For the reasons that follow, the ALJ s decisi“n is hereby affirmed. I. BACKGROUND The C“urt ad“”ts the facts as set f“rth in the ”arties J“int State’ent “f Facts (Doc. 18) and, therefore, will summarize only the pertinent facts. Claimant was born in 1988, was 24 years old when she allegedly became disabled, and was 27 years old at the ti’e “f the ALJ s decisi“n. (AR 23, 24).1 Claimant completed the ninth grade and does not have a General Equivalency Diploma (GED). (AR 38). She has no past relevant work, never having engaged in any substantial gainful employment activity. (AR 23). 1 AR refers t“ the ad’inistrative rec“rd be‘“w. Dockets.Justia.com On December 18, 2012, claimant applied for supplemental security income, alleging a disability onset date of December 18, 2012. (AR 12). In 2014, the Commissioner denied c‘ai’ant s a””‘icati“n initia‘‘y and on reconsideration. (AR 12830, 132). On March 10, 2016, ALJ Margaret Carey held a hearing at which claimant and a vocational expert testified. (AR 31-68). On May 4, 2016, the ALJ found claimant was not disabled. (AR 12-24). On June 1, 2017, the Appeals Counsel denied claimant s request f“r review “f the ALJ s decisi“n, ’aking the ALJ s decisi“n fina‘ and subject t“ judicial review. (AR 1-4). On August 2, 2017, claimant filed her Complaint in this Court. (Doc. 3). Claimant and the Commissioner both consented to proceedings before a United States Magistrate Judge, including final disposition of the case, and the Honorable Linda R. Reade, United States District Judge, reassigned this case to the undersigned. (Doc. 16). By May 5, 2018, the parties had submitted their briefs (Docs. 19 & 22), and by May 23, 2018, the Court deemed this case fully submitted and ready for decision. (Doc. 23). II. DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF A disability is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous ”eri“d “f n“t ‘ess than 12 ’“nths. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual has a disability when, due to his physical or mental impairments, he is n“t only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists . . . in significant numbers either in the region where such individual lives or in several regions “f the c“untry. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). If the c‘ai’ant is ab‘e t“ do work which exists in the national economy but is unemployed because of inability to 2 get work, lack of opportunities in the local area, economic conditions, employer hiring practices, or other factors, the ALJ will still find the claimant not disabled. To determine whether a claimant has a disability within the meaning of the Act, the Commissioner follows the five-step sequential evaluation process outlined in the regulations. Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007). First, the C“’’issi“ner wi‘‘ c“nsider a c‘ai’ant s w“rk activity. If the c‘ai’ant is engaged in substantial gainful activity, then the claimant is not disabled. § 416.920(a)(4)(i). 20 C.F.R. Substantia‘ w“rk activity inv“‘ves ”hysica‘ “r ’enta‘ activities. Gainfu‘ activity is w“rk d“ne f“r ”ay “r ”r“fit, even if the c‘ai’ant did n“t u‘ti’ate‘y receive pay or profit. Second, if the claimant is not engaged in substantial gainful activity, then the C“’’issi“ner ‘““ks t“ the severity “f the c‘ai’ant s ”hysica‘ and ’enta‘ i’”air’ents. § 416.920(a)(4)(ii). If the impairments are not severe, then the claimant is not disabled. An impairment is not severe if it does not significantly limit [a] c‘ai’ant s ”hysica‘ “r mental ability to do basic work activities. Kirby, 500 F.3d at 707. The ability to do basic work activities means the ability and aptitude necessary to perform most jobs. Bowen v. Yuckert, 482 U.S. 137, 141 (1987). These include: (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. Id.; see also 20 C.F.R. § 404.1521. Third, if the claimant has a severe impairment, then the Commissioner will determine the medical severity of the impairment. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment meets or equals one of the presumptively disabling impairments listed in the 3 regulations, then the claimant is considered disabled regardless of age, education, and work experience. Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998). F“urth, if the c‘ai’ant s i’”air’ent is severe, but it d“es n“t ’eet “r equal one of the presumptively disabling impairments, then the Commissioner will assess the c‘ai’ant s residua‘ functi“na‘ ca”acity (RFC) and the de’ands “f his past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). If the claimant can still do his past relevant work, then he is considered not disabled. (Id.). Past relevant work is any work the claimant performed within the fifteen years prior to his application that was substantial gainful activity and lasted long enough for the claimant to learn how to do it. § 416.960(b). RFC is a ’edica‘ questi“n defined wh“‘‘y in ter’s “f the c‘ai’ant s ”hysica‘ abi‘ity t“ perform exertional tasks or, in other words, what the claimant can still do despite [ ] her ”hysica‘ “r ’enta‘ ‘i’itati“ns. Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (citations and internal quotation marks omitted). The RFC is based on all relevant medical and other evidence. The claimant is responsible for providing the evidence the Commissioner will use to determine the RFC. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). If a claimant retains enough RFC to perform past relevant work, then the claimant is not disabled. Fifth, if the c‘ai’ant s RFC as deter’ined in Ste” F“ur wi‘‘ n“t a‘‘“w the c‘ai’ant to perform past relevant work, then the burden shifts to the Commissioner to show there is “ther w“rk the c‘ai’ant can d“, given the c‘ai’ant s RFC, age, educati“n, and w“rk ex”erience. The C“’’issi“ner ’ust sh“w n“t “n‘y that the c‘ai’ant s RFC wi‘‘ a‘‘“w him to make the adjustment to other work, but also that other work exists in significant numbers in the national economy. Eichelberger, 390 F.3d at 591. If the claimant can make the adjustment, then the Commissioner will find the claimant not disabled. At Step Five, the C“’’issi“ner has the res”“nsibi‘ity “f deve‘“”ing the c‘ai’ant s ’edica‘ history before making a determination about the existence of a disability. The burden of 4 persuasion to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). III. THE ALJ’S FINDINGS The ALJ made the following findings at each step: At Step One, the ALJ found that claimant had not engaged in substantial gainful activity since December 18, 2012, the alleged onset date of her disability. (AR 14). At Step Two, the ALJ found that claimant had the following severe impairments: affective disorder, anxiety disorder, personality disorder, obesity, Wolff-Parkins“n sWhite syndrome, essential hypertension, asthma and supraventricular tachycardia with heart murmur. (Id.). At Ste” Three, the ALJ f“und that n“ne “f c‘ai’ant s i’”air’ents ’et “r equa‘ed a presumptively disabling impairment listed in the relevant regulations. (AR 15). At Step Four, the ALJ found claimant had the residual functional capacity to perform sedentary work with the following limitations: [Claimant] cannot climb ladders, ropes or scaffolds. She can occasionally climb ramps and stairs. She is unlimited in balancing and stooping, but cannot kneel, crouch or crawl. She needs to avoid tasks that require excellent vision defined as the ability to see and discriminate all but extremely detailed or fine work. She can tolerate only occasional exposure to extreme cold, heat, humidity, fumes, odors, dust, gases and other pulmonary irritants. She can tolerate no exposure to moving mechanical parts or unprotected heights. She needs the ability to elevate he [sic] legs 6 inches off the ground. The claimant retains the mental capacity for simple, routine, repetitive work in a low stress environment defined as having only occasional simple work related decisions and few if any changes in the work setting. She will need a break every 2 hours that can be accommodated by routine breaks and lunch. She should have no interaction with the public and only occasional interaction with coworkers but no tandem or team tasks or tasks where one production step depends upon another. 5 (AR 16). Also at Step Four, the ALJ found that claimant had no past relevant work. (AR 23). At Step Five, the ALJ f“und that c“nsidering c‘ai’ant s age, educati“n, w“rk experience, and residual functional capacity, there were jobs in significant numbers in the national economy that claimant could perform. (Id.). These included Sorter, Assembler, and Packer. (AR 24). Therefore, the ALJ found that claimant was not disabled. (Id.). IV. THE SUBSTANTIAL EVIDENCE STANDARD The C“’’issi“ner s decisi“n ’ust be affir’ed if it is su””“rted by substantia‘ evidence “n the rec“rd as a wh“‘e. Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006); see 42 U.S.C. § 405(g) ( The findings “f the C“’’issi“ner “f S“cia‘ Security as to any fact, if supported by substantial evidence, shall be conclusive . . . . ). Substantia‘ evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate t“ su””“rt a c“nc‘usi“n. Lewis, 353 F.3d at 645 (citations and internal quotation marks omitted). The Eighth Circuit Court of Appeals explains the standard as s“’ething ‘ess than the weight “f the evidence and [that] allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal “n a””ea‘. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (citations and internal quotation marks omitted). In deter’ining whether the C“’’issi“ner s decision meets this standard, a court consider[s] all of the evidence that was before the ALJ, but . . . do[es] not re-weigh the evidence. Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (citation omitted). A c“urt c“nsiders b“th evidence that su””“rts the C“’’issi“ner s decisi“n and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The Court must search the rec“rd f“r evidence c“ntradicting the [C“’’issi“ner s] decisi“n and 6 give that evidence appropriate weight when determining whether the overall evidence in su””“rt is substantia‘. Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)). In evaluating the evidence in an appeal of a denial of benefits, the Court must apply a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health & Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The Court, however, do[es] not reweigh the evidence ”resented t“ the ALJ, Baldwin, 349 F.3d at 555 (citing Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995)), “r review the factua‘ rec“rd de n“v“. Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (quoting Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if, after reviewing the evidence, the Court find[s] it possible to draw two inconsistent positions from the evidence and one of those positions represents the C“’’issi“ner s findings, [the C“urt] ’ust affir’ the [C“’’issi“ner s] denia‘ “f benefits. Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). This is true even in cases where the C“urt ’ight have weighed the evidence different‘y. Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)). The C“urt ’ay n“t reverse the C“’’issi“ner s decisi“n ’ere‘y because substantia‘ evidence w“u‘d have su””“rted an “””“site decisi“n. Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) ( [A]n ad’inistrative decisi“n is n“t subject t“ reversa‘ si’”‘y because s“’e evidence ’ay su””“rt the “””“site c“nc‘usi“n (citati“n “’itted).). V. DISCUSSION Claimant argues that the ALJ erred in tw“ ways. First, c‘ai’ant argues the ALJ s mental residual functional capacity finding was not supported by substantial evidence. (Doc. 19, at 12-29). Sec“nd, c‘ai’ant argues the ALJ s finding “n h“w high c‘ai’ant could elevate her legs was not supported by substantial evidence. (Doc. 19, at 29-37). The Court will address each argument in order. 7 A. Claimant’s Mental Residual Functi“nal Ca”acity C‘ai’ant argues that the ALJ s residua‘ functi“na‘ ca”acity assess’ent at Step Four was flawed because it was not supported by substantial evidence. Claimant argues that the ALJ improperly discounted the opinions of claimant s treating professionals, fai‘ed t“ inquire int“ the reas“n f“r c‘ai’ant s n“nc“’”‘iance with treatment, and failed to develop the record. (Doc. 19, at 14-15). Regarding c‘ai’ant s ’enta‘ hea‘th, the ALJ ackn“w‘edged that c‘ai’ant suffers from mental health impairments. (AR 21). The ALJ re‘ated that c‘ai’ant a‘‘eged she did not get along well with “thers and had difficu‘ty interacting with “thers. (Id.). The ALJ found it significant, however, that claimant failed to attend the recommended STEPPS programs and did not continue with therapy, and that claimant had not sought mental health treatment since early 2013. (Id.). Finally, the ALJ noted that claimant married and attended school, which the ALJ found were inconsistent with the disabling mental health impairment claimant described. (Id.). The ALJ gave great weight to the State Agency psychological mental assessments, noting that those consulting psychologists f“und c‘ai’ant was ca”ab‘e “f si’”‘e, r“utine and repetitive work with the ability to maintain a schedule, but would be limited to no interacti“n with the ”ub‘ic and “ccasi“na‘ interacti“n with c“w“rkers. (AR 23). The ALJ f“und c‘ai’ant retained the ’enta‘ ca”acity f“r si’”‘e, r“utine, re”etitive w“rk in a low stress environment defined as having only occasional simple work related decisions and few if any changes in the w“rk setting and have n“ interacti“n with the ”ub‘ic and only occasional interaction with coworkers, but no tandem or team tasks or tasks where one production step depends up“n an“ther. i. (AR 16, 21). Treatment Providers’ O”ini“ns Claimant argues that the ALJ i’”r“”er‘y disc“unted the “”ini“ns “f c‘ai’ant s treating professionals, but there are no such opinions in any way pertaining to her 8 functional limitations due to mental health impairments. Claimant has a very limited mental health treatment history. She was subject to a consultative examination in 2009 by Dr. Robert Buchanan, but that was not part of her mental health treatment. (AR 414 17). In any event, that consultation predated the alleged onset of disability by three years. Claimant was the subject of another consultative examination by Dr. Don White, Ph.D., on November 14, 2013. (AR 785-788). Again, Dr. White was not a treatment provider. (Id.). The first record of any mental health treatment is on November 16, 2012. (AR 550).2 Claimant sought treatment at the Vera French Mental Health Center from November 16, 2012, until March 2013 (a period of four months), where she was seen by Licensed Social Worker Carla Mohr and Carolyn Seifert, M.D. (AR 542-681). The treatment notes reflect a diagnosis of schizoaffective disorder, Post-Traumatic Stress Disorder, and Borderline Personality Disorder. (AR 552). The records generally reflect that the treatment providers prescribed medications and treatment with which claimant was often noncompliant. The treatment records reflect GAF scores between 40 and 43. (AR 546, 553, 555, 558, 681). The records do not reflect, however, any opinion as to work-related limitations. It is significant that n“ ”hysician who examined [claimant] submitted a medical conclusion that she is disabled and unable to perform any type of w“rk. Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000). C‘ai’ant cites the GAF sc“res f“r the ”r“”“siti“n that c‘ai’ant s GAF sc“res ’ust mean that claimant has major impairments in several areas, such as work. (Doc. 19, at 16-17). C‘ai’ant further argues that [i]t is c‘ear that Dr. Seifert diagn“sed [c‘ai’ant] at the least functional range of serious symptoms and that her opinion agrees with the 2 The notes from this first visit reflect that claimant told the treatment provider that she had been treated for depression and had been off medication for four months (Id.), but there is no medical records extant that support that assertion. M“re“ver, c‘ai’ant c“ncedes that [t]here is n“ rec“rd “f treat’ent fr“’ 2009 unti‘ 2012. (D“c. 19, at 16). 9 “”ini“n “f Car‘a M“hr ab“ut the severity “f her sy’”t“’s. (D“c. 19, at 17). C‘ai’ant then c“nc‘udes that the ALJ s finding that c‘ai’ant had ’“derate ‘i’itati“ns ’eans, [a]s a ’atter “f si’”‘e ‘“gic, that the ALJ did n“t ref‘ect the seri“us ‘imitations noted by her treating ”sychiatrist. (D“c. 19, at 25). A GAF score is not, however, an opinion of a treatment provider regarding workrelated limitations, moderate, serious, or otherwise. The GAF sca‘e is a nu’eric sca‘e used to rate social, occupational, and psychological functioning on a hypothetical continuum of mental-hea‘th i‘‘ness. 2016). Mabry v. Colvin, 815 F.3d 386, 391 n.6 (8th Cir. The sca‘e ranges fr“’ zer“ t“ “ne hundred. Id. The introductory paragraph of the GAF scale instructs a clinician t“ c“nsider ”sych“‘“gica‘, s“cia‘, and “ccu”ati“na‘ functi“ning “n a hy”“thetica‘ c“ntinuu’ “f ’enta‘ i‘‘ness. DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS, 34 (4th ed., text rev. 2000). GAF scores have no direct correlation, however, to the severity standard used by the Commissioner. Wright v. Colvin, 789 F.3d 847, 855 (8th Cir. 2015) (citing 65 Fed. Reg. 50746, 50764–65). Rather, as the ALJ n“ted, a GAF sc“re is a subjective assess’ent by an exa’iner that re‘ies “n vari“us fact“rs inc‘uding the c‘ai’ant s subjective state’ents and is, theref“re, a sna”sh“t and fai‘s t“ ”r“vide a ‘“ngitudina‘ view “f the c‘ai’ant. (AR 22). See Jones v. Astrue, 619 F.3d 963, 973 (8th Cir. 2010) (stating that a GAF score is a subjective deter’inati“n that re”resents the c‘inician s judg’ent “f the individua‘ s “vera‘‘ ‘eve‘ “f functi“ning. ). That is especially so when, as here, the records reflect GAF scores for only four months between November 2012 and March 2013. Finally, [t]he most recent edition of the Diagnostic and Statistical Manual of Mental Disorders disc“ntinued use “f the GAF sca‘e. Mabry at 391 n.6. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 16 (5th ed. 2013). An ALJ should nevertheless consider GAF scores, along with other evidence, in deter’ining a c‘ai’ant s RFC. Pate-Fires v. Astrue, 564 F.3d 935, 944-45 (8th Cir. 10 2009). Here, the ALJ did consider the GAF scores. (AR 22). The ALJ also, however, c“nsidered at ‘ength and in detai‘ c‘ai’ant s ’ental health treatment records, the c“nsu‘tative ’enta‘ exa’inati“ns, c‘ai’ant s dai‘y activities, and the “ther ’edica‘ evidence in concluding that she should afford the GAF scores little weight. Mabry, 815 F.3d at 391 ( GAF sc“res ’ay be re‘evant t“ a determination of disability based on mental impairments. But an ALJ may afford greater weight to medical evidence and testi’“ny than t“ GAF sc“res when the evidence requires it. ). Therefore, the Court finds the ALJ properly considered and weighed the import “f c‘ai’ant s ‘i’ited GAF scores in light of the totality of the evidence. See Jones, 619 F.3d at 972–74 & n.4 (distinguishing from Pate–Fires because the claimant did not have a lengthy history of low GAF scores, scores were inconsistent with other evidence in the record, and the ALJ explained why he was discrediting the scores). In any event, the GAF scores standing alone simply do not constitute an opinion by any treat’ent ”r“vider regarding c‘ai’ant s functi“na‘ ‘i’itati“ns. Theref“re, the Court finds that the ALJ did not improperly fail to give proper weight to the opinions of a treat’ent ”r“vider regarding c‘ai’ant s ‘i’itati“ns. ii. Claimant’s N“n-Compliance Claimant also argues that the ALJ failed to consider why claimant was noncompliant with mental health treatment. (Doc. 19, at 24-26). Claimant argues, in essence, that the ALJ sh“u‘d have c“nc‘uded that c‘ai’ant s fai‘ure t“ seek ’enta‘ hea‘th treatment and failure to comply with treatment regiments when she did seek treatment, must be the result of her mental illness. Although it is true that the failure to seek or comply with mental health treatment can be due to the mental illness itself, (SSR 16-3p), that is not always the case. Contrary t“ c‘ai’ant s argu’ent, the ALJ did address the reas“ns f“r c‘ai’ant s non-c“’”‘iance. The ALJ n“ted that c‘ai’ant de’“nstrated a bad attitude during her 11 ’enta‘ hea‘th c“nsu‘ts, but that c‘ai’ant was “ften f“und t“ be c““”erative and ”‘easant with her “ther ”r“viders. (AR 21). The ALJ c“nc‘uded that c‘ai’ant was ca”ab‘e “f acting appropriately with other medical providers. (Id.). The ALJ also reasoned that c‘ai’ant s dai‘y activities, inc‘uding getting ’arried and attending sch““‘, were inconsistent with the conclusion that claimant was so severely mentally ill that she could not seek or comply with treatment. (Id.). U”“n the C“urt s “wn review “f the limited mental health records, the Court finds they su””“rt the ALJ s c“nc‘usi“ns and reasoning. The records reflect that claimant often si’”‘y had a ”““r attitude. (AR 559 (n“ting a chi” “n the sh“u‘der, disres”ective [sic] attitude, res”“nding t“ her treat’ent ”r“vider with a hatefu‘, y“u-must-be-an-idiot tone of voice accompanied by eye r“‘‘ing ); 660 (describing c‘ai’ant as having a s’arta‘ecky attitude, but n“t as in-your-face as at her ‘ast visit ); 661 (describing c‘ai’ant s attitude as unc““”erative, Resentfu‘ and de’anding ); 666 (describing c‘ai’ant as having an I ain t g“nna take n“ shit fr“’ anyb“dy attitude )). On “ther “ccasi“ns she was cooperative. (AR 663, 675, 678, 681). The medical records show that upon examination c‘ai’ant s reas“ning was genera‘‘y fair and her th“ught ”r“cesses ‘“gica‘, which suggests she was capable of seeking and complying with treatment. (AR 552, 555, 661, 664, 668, 675, 678, 681). The record also reflects that claimant at the same time she was receiving mental health treatment, she got married and attended school (AR 559, 663), conduct that is inconsistent with a person suffering a mental illness to such a degree that it impaired her from seeking mental health treatment or complying with treatment instructions. Finally, the C“urt s “wn review “f the ’edica‘ rec“rds ”ertaining t“ clai’ant s ”hysica‘ hea‘th care ref‘ects that she was ca”ab‘e “f seeking ’edica‘ care and complying with treatment instructions, and could and did act appropriately with others. There is simply nothing in the record from which the ALJ should have concluded that c‘ai’ant s fai‘ure t“ seek ’enta‘ hea‘th treat’ent “r c“’”‘y with treat’ent 12 instructions was a result of her mental illness. Therefore, the Court finds the ALJ did n“t err in assessing the reas“ning f“r c‘ai’ant s fai‘ure t“ seek “r c“’”‘y with ’enta‘ health treatment. iii. Development of the Record Claimant argues that the ALJ should have ordered a consultative mental health examination given the absence of any mental health treatment or examinations after November 2013. (Doc. 19, at 28). Dr. White performed a comprehensive psychological examination in November 2013. Dr. White diagnosed claimant with schizoaffective disorder, posttraumatic stress disorder, and personality disorder. (AR 788). Dr. White c“nc‘uded that c‘ai’ant had adequate Ada”tive Behavi“ra‘ Functi“ning, and Evidence of psychosis, some evidence that claimant could be harmful to others if provoked. Claimant is oriented as to time, place and person. No impairment in Immediate, Recent or Remote Memory Functioning. Claimants Fund of Information, Ability to do Calculations, Ability to Analyze and Synthesize Data appear to be functional. Abstract Thinking and Judgment are impaired. (AR 788). Claimant bears the burden to provide evidence to support her claims. Baldwin, 349 F.3d at 556. On the other hand, an ALJ owes 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, 377 F.3d at 806. But, an ALJ is required to order medical examinations and tests only if the medical records presented do not give sufficient medical evidence to determine whether the claimant is disabled. Halverson v. Astrue, 600 F.3d 922, 933 (8th Cir. 2010). Thus, the proper inquiry for this Court is not whether the ALJ should have ordered a consultative examination; rather, it is whether the record contained sufficient evidence for the ALJ to make an informed decision. See Payton v. Shalala, 25 F.3d 684, 686 (8th Cir. 1994). Finally, it is appropriate for this Court to remand a case 13 for failure to fully develop the record only when there is a showing of unfairness or prejudice. Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993). The record in this case contained sufficient evidence for the ALJ to make an informed decision without ordering an“ther c“nsu‘tative exa’inati“n. After Dr. White s report in 2013, c‘ai’ant s case ”r“ceeded thr“ugh ad’inistrative a””ea‘s and the ALJ s hearing. Claimant was given an opportunity at each step along the way to allege a change in her condition, but did not do so regarding mental health. (AR 267, 273, 291). M“re“ver, there are n“ ’edica‘ rec“rds sh“wing any change in c‘ai’ant s c“nditi“n. The ALJ re‘ied “n Dr. White s re”“rt and the other medical evidence and non-medical evidence regarding c‘ai’ant s ’enta‘ hea‘th i’”air’ents. These rec“rds contained sufficient evidence for the ALJ to make an informed decision regarding c‘ai’ant s ’enta‘ residual functional capacity. Claimant has made no showing that a failure to order another consultative examination, when there is no indication of a change in her condition since the last one, was unfair or prejudiced her. Therefore, the Court finds the ALJ did not err in failing to order another consultative mental health examination. In summary, the Court finds that substantial evidence in the record as a whole su””“rts the ALJ s ’enta‘ hea‘th residua‘ functi“na‘ ca”acity assess’ent. B. Claimant’s Leg Elevation C‘ai’ant argues that substantia‘ evidence d“es n“t su””“rt the ALJ s finding that allowing claimant to elevate her legs six inches is sufficient to relieve her swelling. (Doc. 19, at 29). Claimant testified that she needed to elevate her legs to hip level (AR 17), which claimant asserts would preclude all employment. (Doc. 19, at 29). Claimant argues that the ALJ s residua‘ functi“na‘ ca”acity assess’ent, theref“re, sh“u‘d have included the need for claimant to elevate her legs to hip level. Claimant concedes that [t]here is n“ ’edica‘ evidence in this rec“rd t“ indicate h“w high [claimant] must elevate her ‘egs in “rder t“ reduce the swe‘‘ing. (Id., at 34). Claimant argues, therefore, that 14 the ALJ again should have developed the record to determine how high claimant had to elevate her legs to eliminate swelling. (Id., at 35-36). The ALJ reviewed c‘ai’ant s ’edica‘ hist“ry in s“’e detai‘, inc‘uding rec“rds pertaining to her leg swelling and the need for her to elevate her legs. The ALJ noted that on March 13, 2012, claimant presented to a hospital complaining of lower extremity ede’a ”resent f“r three weeks. (AR 18). day and did n“t e‘evate feet. She re”“rted that she st““d f“r eight h“urs a (Id.). She was diagnosed with dependent edema due to prolonged standing and obesity. (Id.). Claimant was seen again January 2013 and was prescribed a diuretic and potassium due to her lower extremity swelling. (Id.). An examination in February 2013 noted her obesity, but was otherwise had normal findings. (AR 19). The ALJ noted that the record indicates that claimant has not experienced significant swelling since early 2013 and has not sought treatment for leg swelling since that time. (AR 20). The ALJ discussed c‘ai’ant s testi’“ny regarding her a‘‘eged need t“ e‘evate her ‘egs as we‘‘. The ALJ f“und c‘ai’ant s testi’“ny regarding how often she had to e‘evate her ‘egs was a’bigu“us. (Id.). The ALJ n“ted that, [i]nitia‘‘y the c‘ai’ant alleged she had to elevate her legs all day every day at hip level, however upon further questioning from her representative, she clarified that she had to elevate her legs 4-5 ti’es ”er day. (Id.). The ALJ also addressed the January 25, 2013, recommendation that claimant elevate her legs (AR 706), giving it little weight. (AR 22). The ALJ found the recommendation vague because it did not say how high, how often, or for how long claimant needed to elevate her legs. (Id.). Moreover, the ALJ again noted the absence “f any ’edica‘ evidence “f “ng“ing, ”r“‘“nged swe‘‘ing “f c‘ai’ant s ‘“wer extre’ities. (AR 22). The ALJ concluded, however, that [t]“ reduce the ”“ssibi‘ity “f swe‘‘ing 15 related to the obesity [claimant] needs the ability to elevate her legs six inches off the gr“und. (AR 21, 22). Again, it is the c‘ai’ant s res”“nsibi‘ity t“ ”r“ve her residua‘ functi“na‘ ca”acity. Stormo, 377 F.3d at 806. The only evidence in the record that claimant needed to elevate her legs to hip height is her own testimony. That is legally insufficient. Roesler v. Colvin, No. 12-1982 (JRT/JJK), 2013 WL 4519388, at *22 (D. Minn. Aug. 26, 2013)(affir’ing an ALJ s refusa‘ t“ inc‘ude a ‘i’itati“n f“r e‘evating ‘egs, finding that the c‘ai’ant s subjective c‘ai’ “f a need t“ e‘evate her ‘egs t“ heart ‘eve‘ three t“ f“ur times a day was insufficient to carry her burden). The only extant medical record referencing claimant s need to elevate her legs is the January 25, 2013 entry, which si’”‘y reads: Av“id sa‘t, e‘evate ‘egs. (AR 706). These w“rds a””ear as ”art “f the record of an office visit and is under the heading Assess’ent/P‘an. These recommendations do not constitute an opinion regarding a work limitation. Further, the medical record did not assert that claimant could not work with swollen legs. Thus, although it is true that there is no medical evidence in the record that elevating claimant s ‘egs by six inches w“u‘d ”revent c‘ai’ant s ‘egs fr“’ swe‘‘ing, this is n“t a case where the ALJ s six-inch limitation was inconsistent with a medical opinion that they need to be raised higher or longer. See Andrews v. Astrue, No. 08-2116, 2009 WL 4573239, at * 5 (W.D. Ark. Dec. 1, 2009) (re’anding because, a’“ng “ther things, the ALJ s RFC stated that c‘ai’ant be ab‘e t“ e‘evate her ‘egs f“r ab“ut five-’inutes ”er h“ur, when the medical opinion was that claimant needed to have her legs on a foot stool whenever sitting at a desk). In any event, c‘ai’ant s argu’ent c“nf‘ates the height “f ‘eg e‘evati“n needed to relieve swelling with the height of leg elevation needed to work. In other words, claimant may still work even with swollen legs. This was demonstrated when in 2012 she saw a doctor for treatment for leg swelling after working eight hour shifts while standing. Her 16 doctor instructed claimant to use compression stockings and elevate her legs when not working, but did not indicate that she was unable to work with swollen legs. (AR 58286). The ALJ f“und that c‘ai’ant s “besity was an i’”air’ent. Her ”ast ex”erience with swollen legs was a symptom of her obesity when working long hours on her legs. The ALJ did not find claimant had an impairment of swollen legs; to the contrary, the ALJ f“und there was n“ ’edica‘ evidence su””“rting c‘ai’ant s asserti“n that she had an ongoing problem with swollen legs. In understanding the ‘ack “f significance “f the ALJ s height ‘i’itati“n, it is important to reiterate that the ALJ found there was no medical evidence to support c‘ai’ant s asserti“n that she c“ntinued t“ suffer fr“’ sw“‘‘en ‘egs after ear‘y 2013. The ALJ concluded that it was reasonable to include a prophylactic limitation for claimant to be able elevate her legs by six inches in order to help prevent the possibility of swollen legs. The fact the ALJ specified six inches, versus three inches or twelve inches, is of little practical import when the record is devoid of any medical evidence or opinion that claimant continued to suffer from swollen legs or needed to elevate her legs to hip height. Cf. Skeen v. Astrue, No. 10-4037-SSE-CV-C-MJW, 2011 WL 1113443, at *2 (W.D. M“. Mar. 24, 2011) (affir’ing an ALJ s residual functional capacity limitation that claimant should be able to elevate her legs during breaks and on her lunch hour, although there was no specific medical evidence about how often she should be able to elevate her legs). When, as here, the medical evidence fails to show that claimant had on-going, prolonged issues with swelling legs that would necessitate any limitation on the elevation “f her ‘egs whi‘e w“rking, the ALJ s s“’ewhat arbitrary ‘i’itati“n “f six inches is immaterial and does not justify a remand. See Arkansas v. Oklahoma, 503 U.S. 91, 109 n.13 (1992) (immaterial flaw by ALJ will not justify remand). Nor has claimant carried her burden of showing that the ALJ erred by not developing the record further regarding how high she would need to elevate her legs. As 17 noted, there was no medical evidence showing leg swelling after early 2013, and no medical opinion that claimant needed to elevate her legs as a work limitation. Claimant cann“t sh“w, theref“re, that the ALJ s fai‘ure t“ further deve‘“” the rec“rd “n this issue was either unfair or prejudicial. VI. CONCLUSION F“r the af“re’enti“ned reas“ns, the ALJ s decisi“n is hereby affirmed. IT IS SO ORDERED this 20th day of June, 2018. __________________________________ C.J. Williams Chief United States Magistrate Judge Northern District of Iowa 18
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