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Mouser v. Astrue: SOCIAL SECURITY - no abuse not remanding for new evidence; medical evidence weighed OK; no notice regarding mental capacity

United States Court of Appeals
No. 08-1609
Bruce Mouser, *
Appellant, **
Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Michael J. Astrue, Commissioner, *
Social Security Administration, *
Appellee. *
Submitted: September 26, 2008
Filed: November 6, 2008
Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
WOLLMAN, Circuit Judge.
Bruce Mouser appeals from the district courts order denying remand and
affirming the Commissioners denial of disability insurance benefits and supplemental
security income benefits. We affirm.
Mouser is a forty-four-year-old man who completed high school by taking
special education classes. Prior to filing for disability, Mouser worked as a gin worker
and fork-lift operator for twenty-five years. Both positions are considered semiskilled.
Mouser currently lives with his parents.
On March 24, 2000, Mouser was admitted to the St. Bernards Regional Medical
Center in Jonesboro, Arkansas, with complaints of neck and back pain. Dr. Mark
Newman concluded that Mouser had broad-based disc bulges at L2-L3 and L3-L4 and
a posterior central disc protrusion at L4-L5, but that these protrusions had not resulted
in any significant stenosis. In a April 8, 2005, automobile accident, Mouser sustained
a left pneumothorax fracture, a left clavicle and scapula fracture, a left ischial fracture,
a left superior pubic ramus fracture, and a sacral fracture. Medical records from
March 1, 2006, reflect a diagnosis of probable chronic obstructive pulmonary disease
(COPD) from nicotine abuse. Likewise, pulmonary function tests performed on
March 14, 2006, were consistent with severe obstructive pulmonary impairment.
Although doctors repeatedly advised Mouser to stop smoking, at the time of the April
6, 2006, hearing before the administrative law judge (ALJ) he was still smoking a
pack of cigarettes per day.
Mouser filed for disability insurance benefits and supplemental security income
benefits on April 18, 2005. On June 30, 2006, the ALJ issued an opinion that
concluded that Mouser was not disabled. The ALJ found that Mousers testimony was
not entirely credible in light of the medical evidence and his failure to follow doctors
orders to stop smoking. After hearing testimony from a vocational expert, the ALJ
concluded that although Mouser could not perform his past relevant work, he
possessed the residual functional capacity to perform a range of medium work with
restrictions and was therefore not disabled. The Appeals Council denied Mousers
request for review on October 4, 2006, making the ALJs decision final. Mouser
timely appealed the decision to the district court and alternatively asked the district
court to remand his case to the ALJ so that a recently issued report concerning
Mousers mental capacity could be evaluated. The magistrate judge granted summary
judgment to the Commissioner, affirming the ALJs decision, and denied Mousers
1The Honorable Beth Deere, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was assigned by consent of the parties. See
28 U.S.C. 636(c)(1).
request to remand.1 2008 U.S. Dist. LEXIS 7307 No. 3:06-cv-203 (E.D. Ark. Jan. 31,
2008). It is from these orders that Mouser appeals.
Mouser argues that the district court erred in not remanding this case for
consideration of new evidence pursuant to 42 U.S.C. 405(g), a decision that we
review for abuse of discretion. Thomas v. Sullivan, 928 F.2d 255, 260 n.6 (8th Cir.
1991). Section 405(g) allows the court to remand a case upon a showing that there
is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding . . . .
The report at issue was released on December 6, 2006, after Mouser underwent
a psychological evaluation performed by Dr. George M. DeRoeck. This evaluation
showed that Mouser reads and spells at a second grade level and does arithmetic at a
fourth grade level. According to the report, Mouser has a verbal IQ of sixty-six, a
performance IQ of seventy-eight, and a full scale IQ of sixty-nine. Mouser asserts that
this mental deficiency is a life-long condition that has contributed to his inability to
The parties do not dispute the newness or materiality of the report. The
Commissioner argues, however, and the district court found, that there was not good
cause for Mousers failure to include such evidence during the proceedings before the
ALJ or the Appeals Council. Mousers explanation to the district court was that the
report did not exist. While that may be true, Mousers alleged mental deficiency did
exist, but it apparently was not considered by his lawyer or doctors until after the
Appeals Council denied review and the administrative record closed.
Mouser relies primarily on authority from the Ninth and Eleventh Circuits for
the premise that good cause exists when the evidence at issue did not exist at the time
of the proceedings before the ALJ. See Milano v. Rowen, 809 F.2d 763 (11th Cir.
1987); Cherry v. Heckler, 760 F.2d 1186 (11th Cir. 1985); Burton v. Heckler, 724
F.2d 1415 (9th Cir. 1984). Unlike our court, however, the Ninth and Eleventh
Circuits review a district courts denial of the motion to remand de novoa standard
requiring no deference to the district courts determination. See Cherry, 760 F.2d at
1194 (citing Booz v. Secretary of Health and Human Servs., 734 F.2d 1378, 1380 (9th
Cir. 1984)). Further, the cited cases reflect a liberal construction of section 405(g) that
defines good cause as simply an absence of bad faith. See Burton, 724 F.2d at 1417-
We have required a more stringent showing of good cause. Good cause does
not exist when the claimant had the opportunity to obtain the new evidence before the
administrative record closed but failed to do so without providing sufficient
explanation. Hepp v. Astrue, 511 F.3d 798, 808 (8th Cir. 2008). Although we have
held that good cause is established where the condition and associated records did not
exist at the time of the hearing, see Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir.
1991), here it is only the associated records that were lacking. The introduction of this
report at this stage constitutes an attempt to present an entirely new basis for disability
following the Commissioners final determination. Given that Mouser bears the
burden of proving his disabilities and the responsibility for presenting the strongest
case possible, id., we cannot say that the district court abused its discretion in finding
a lack of good cause to remand.
In the alternative, Mouser argues that the ALJs decision should be reversed
because the ALJ improperly discounted evidence relating to his COPD and failed to
adequately develop the record concerning his mental impairments. We will uphold
the [Commissioners] final decision if it is supported by substantial evidence on the
record as a whole. Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993).
Substantial evidence is relevant evidence that a reasonable mind would accept as
adequate to support the Commissioners conclusion. Wheeler v. Apfel, 224 F.3d
891, 894 (8th Cir. 2000) (citing Craig v. Apfel, 212 F.3d 433, 435 (8th Cir. 2000)).
A decision may not be reversed simply because there is evidence in the record to
support an alternative conclusion. That said, [t]he review we undertake is more than
an examination in support of the Commissioners decision, we also take into account
whatever in the record fairly detracts from the decision. Kelley v. Callahan, 133 F.3d
583, 587 (8th Cir. 1998) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
The ALJ found that Mousers complaints of pain and testimony regarding his
limitations were not entirely credible in light of the record as a whole. In order to
assess a claimants subjective complaints, the ALJ must make a credibility
determination by considering the claimants daily activities; duration, frequency, and
intensity of the pain; precipitating and aggravating factors; dosage, effectiveness and
side effects of medication; and functional restrictions. Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984). Other relevant factors include the claimants relevant
work history and the absence of objective medical evidence to support the
complaints. Wheeler, 224 F.3d at 895. Thus, the ALJ may not discount subjective
complaints solely because they are not supported by objective medical evidence. See
ODonnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003).
The ALJ weighed the Polaski factors and concluded that Mousers complaints
of pain, specifically the limitations imposed on him by his COPD, were not entirely
credible. The ALJ noted that Mouser did not seek medical treatment between March
2000 and April 2005, and has not sought further medical treatment since June 2005.
Mousers doctors have not put him under any restrictions because of his pulmonary
status, and the only medication he uses is an inhaler. The ALJ determined that such
evidence is inconsistent with complaints of persistent and debilitating symptoms.
Mouser complains of shortness of breath, which in turn limits his physical
abilities. As indicated earlier, however, Mouser continued to smoke a pack of
cigarettes a day. Medical records reflect that smoking likely caused Mousers COPD,
and his continued smoking amounts to a failure to follow a prescribed course of
remedial treatment. See Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997)
(noting that a failure to follow prescribed treatment may be grounds for denying an
application for benefits). This is not a case in which the correlation between
claimants smoking and claimants impairment is not readily apparent. See Kelley,
133 F.3d at 589 (noting that there is no evidence that claimants muscoskeletal
complaints would be affected by smoking cessation). To the contrary, there is no
dispute that smoking has a direct impact on Mousers pulmonary impairments. Thus,
the ALJ appropriately considered Mousers failure to stop smoking in making his
credibility determination. See Wheeler, 224 F.3d at 895.
Although the ALJ may have overstated Mousers daily activities, the record
indicates that Mouser is generally able to care for himself. The record suggests that
Mouser is not very active, yet he is able to complete chores at home when asked.
Additionally, the record shows that his reliance on his parents for transportation is due
to his license being revoked, rather than on any inability to drive. Based on the record
as a whole, then, the ALJs credibility assessment was proper.
Mouser contends that there was sufficient evidence in the record to alert the
ALJ as to Mousers alleged mental impairment and that the ALJs failure to develop
the record on this issue requires reversal. Although the ALJ must fairly and fully
develop the record, Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994), he is not
obliged to investigate a claim not presented at the time of the application for benefits
and not offered at the hearing as a basis for disability. Gregg v. Barnhart, 354 F.3d
710, 713 (8th Cir. 2003) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996)).
There is no bright line rule indicating when the Commissioner has or has not
adequately developed the record; rather, such an assessment is made on a case-by-case
basis. Battles, 36 F.3d at 45.
Mouser did not raise the issue of his mental capacity until his case was under
review in the district court. While there is some evidence in the record indicating that
Mouser might be mentally deficientsuch as his enrollment in special education
classes during high school and the assistance he occasionally receives from his parents
with reading and pronouncing difficult wordsthere is also evidence to suggest he
is mentally competent. Mouser held semi-skilled jobs for twenty-five years. He
testified that he gets along well with people, is able to count money, follow directions,
and focus on the task at hand.
Although we have previously faulted the Commissioner for not sufficiently
developing the record where the issue was not explicitly raised by the claimant, those
cases involved far more evidence indicating that further development was necessary
than the facts before us now. See Gasaway v. Apfel, 187 F.3d 840 (8th Cir. 1999);
Thompson v. Sullivan, 878 F.2d 1108 (8th Cir. 1989). In Gasaway, for example, the
record before the ALJ not only showed that the claimant was in special education
classes in high school, but included her school records indicating she had a verbal IQ
of sixty-nine and medical records that specifically noted a history of mental
retardation. Gasaway, 187 F.3d at 843. The relevant evidence here is more analogous
to that which existed in Hensley v. Barnhart, 352 F.3d 353, 357 (8th Cir. 2003), where
a prescription for anti-depressants did not constitute evidence sufficient to require
further inquiry into the claimants psychological state. Accordingly, we conclude that
the record is lacking in evidence that would have put the ALJ on notice that Mousers
mental capacity may be at issue and that the ALJ fully and fairly developed the record
based on the evidence before him.
The judgment is affirmed.


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