Michael James Kamann v. Carolyn W. Colvin, Acting Commissioner of Social Security1

United States Court of Appeals
For the Eighth Circuit
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No. 12-3396
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Michael James Kamann
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner of Social Security1
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: June 12, 2013
Filed: July 30, 2013
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Before LOKEN, BRIGHT, and BYE, Circuit Judges.
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BYE, Circuit Judge.
Acting Commissioner Colvin is substituted for her predecessor pursuant to1
Federal Rule of Appellate Procedure 43(c)(2).

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Michael Kamann appeals the district court's grant of summary judgment2
affirming the denial of his application for social security disability insurance benefits.
We affirm.
I
On November 7, 2007, Michael Kamann applied for disability insurance
benefits, claiming he had become disabled on March 15, 2001. Kamann has a high
school education and previously worked as a lumber handler, surveyor helper, and
construction worker. He stopped working in March 2001 because he finished the
seasonal job he had been working and was not called back to work.
Kamann, who was 43 at the time of his hearing, alleges disability due to
physical and mental limitations following a work-related back injury and an
automobile accident. His claim was denied initially, on reconsideration, and after a
hearing by an administrative law judge (ALJ). On April 11, 2011, the Social Security
Administration (SSA) Appeals Council denied review and the ALJ's decision became
the final decision of the SSA. Kamann sought review of the SSA's denial in the
district court for the District of Minnesota, which granted summary judgment in favor
of the SSA on August 6, 2012.
A. History of Physical Impairments
In 1995, Kamann suffered a back injury while working as a stonemason and
underwent two back surgeries within the next few years. Kamann claims the
procedures were only partially successful and he has suffered continuous back pain
The Honorable Joan N. Ericksen, United States District Judge for the District2
of Minnesota, adopting the report and recommendations of the Honorable Arthur J.
Boylan, United States Magistrate Judge for the District of Minnesota.
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since then. Kamann also reports having been in a car accident in 2000 which hurt his
neck, causing pain in his neck, shoulders, and hands.
At the request of the SSA, Dr. Roger Ralston examined Kamann in November
2002 (in connection with an earlier application for disability benefits, which was also
denied). Ralston diagnosed Kamann with chronic back pain syndrome, bilateral hand
pain, and mild-to-moderate cervical pain consistent with cervical degenerative disc
disease. Because Kamann exhibited no neurological loss, Ralston suggested he
would benefit from additional surgery. Nevertheless, Kamann sought no treatment
for his back for the next five years.
In August 2008, Kamann saw Dr. George Rounds to have a disability form
completed. Kamann complained of back pain. Rounds noted Kamann's gait
suggested some stiffness or pain in his lower back. Concluding Kamann's pain
stemmed from muscle traction, rather than spinal issues, Rounds referred Kamann to
Dr. Paul Olson for pain relief procedures.
Kamann saw Dr. Olson in October 2008. Kamann reported pain throughout
his spine and significant headaches. He reported that any activity might cause
discomfort, including lying down, getting up, twisting, bending, and standing. Olson
administered an alpha stimulation trial, which significantly reduced Kamann's
symptoms. Given the treatment's success, Olson recommended Kamann proceed with
the treatments. Although Kamann's insurance approved him for ten treatments,
Kamann only went back for two.
Kamann returned to Dr. Rounds in February 2009 for a follow-up on his back
pain. Rounds' notes indicate Kamann was applying for disability benefits and had
been advised to see a neurosurgeon. Kamann called Rounds's office in November
2009 to request a referral to see a neurologist. He stated he had a social security
hearing scheduled for January and needed the referral prior to the hearing.
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B. History of Mental Impairments
In April 2003, Kamann was involuntarily committed to Miller Dawn Medical
Center because of "escalating psychosis." His mother, who lived across the street
from him, reported Kamann had become paranoid and may have threatened a
neighbor. Upon examination, Kamann was alert, cooperative, and oriented to all
spheres; his speech was of normal rate and rhythm. Kamann denied being a risk to
himself or anyone else and was released three days later. The hospital physician
could not determine whether Kamann's psychosis was drug-induced since he had
refused drug screens. At the time, Kamann's mother said he was building a garage
and doing all the labor himself, was a tattoo artist and planned to start a tattoo
business, and had a very supportive fiancee.
On April 21, 2003, a friend reported to the police that Kamann had threatened
to kill him. Police picked up Kamann and brought him into the University Medical
Center in Hibbing, Minnesota, where he was assessed as exhibiting paranoid and
psychotic behavior. Kamann refused all lab work, causing the treating physician to
believe he was on drugs. Ultimately, Kamann did not meet the criteria for
involuntary commitment and was released after a seventy-two-hour hold. A hospital
nurse noted Kamann had been out of the area for the past two years "working on road
construction."
On April 29, 2003, Kamann was again admitted to the University Medical
Center at the request of the Itasca County Court for evaluation prior to a
court-ordered confinement hearing. Kamann again refused lab work, leading the
examiner to believe he was using drugs. Kamann admitted to a history of
amphetamine abuse and acknowledged that he sometimes had delusional responses
when using amphetamines. He eventually tested positive for cannabis but continued
to refuse the metabolic panel. As the substance left his system, Kamann became
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generally pleasant and cooperative. His ultimate diagnosis was psychosis, probably
induced by substance abuse.
C. Psychological Evaluations
In December 2007, psychologist Jeffrey Toonstra conducted a mental health
consultative examination of Kamann. Kamann told Toonstra he did not get along
well with people, avoided contact with people, and stayed home all the time. He told
Toonstra he dislikes humanity and considers himself an "extremely dangerous
person," although he had never hurt people or animals. Kamann's reported daily
activities consisted only of caring for his dogs, cannabis use, watching television, and
drinking wine. He reported that he had no positive relationships with family and
lived alone. Because Kamann's account of his limitations was inconsistent with
Toonstra's observations, Toonstra suspected malingering of psychological symptoms.
He ultimately diagnosed Kamann with an unspecified adjustment disorder and
personality disorder.
The state agency's reviewing psychologist, Dr. J. Pressner, analyzed Toonstra's
evaluation. He concluded there was insufficient evidence to make a decision with
respect to Kamann's current mental functioning and gave no weight to Toonstra's
opinions because they were based on Kamann's self reports, which were not credible.
Dr. Pressner found Kamann's self-report on the disability questionnaire to be clearly
exaggerated and contradictory—for example, Kamann denied any form of human
contact, yet indicated he obtained food from begging and obtained wine and
marijuana for daily use. Dr. Pressner concluded Kamann's condition may be related
to drug and alcohol abuse and that his actual level of functioning and limitations
could not be ascertained.
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Another state agency reviewing psychologist, Dr. Ray M. Conroe, concurred
with Dr. Pressner's assessment. He noted Kamann smoked marijuana daily and had
no prescriptions or any type of medical care for his problems.
D. ALJ Hearing and Decision
In January 2010, a disability hearing was held before an ALJ, which lasted only
thirteen minutes. Kamann was represented by a non-attorney. A vocational expert
testified that Kamann's physical condition would prevent him from performing any
of his past work, but that Kamann might be capable of performing certain kinds of
light, unskilled work. The ALJ touched briefly on Kamann's mental evaluations and
focused primarily on his back injury. Kamann's representative informed the ALJ that
a functional capacity assessment had not been performed and Kamann's insurance
would not pay for one.
The ALJ found Kamann suffered from the following severe impairments:
"chronic back pain syndrome . . . , psychosis (possibly induced by substance abuse),
adjustment disorder (unspecified), rule out malingering [sic], personality disorder not
otherwise specified, history of cannabis abuse, and history of methamphetamine
abuse." Appellant's Addendum 3. Nevertheless, he determined Kamann's
impairments did not meet the criteria for benefit eligibility under 20 C.F.R.
§ 404.1567(b). Specifically, Kamann's back pain was not coupled with neurological
loss and, therefore, fell short of the criteria for spine disorders. Kamann's mental
impairments resulted only in mild restrictions in his activities of daily living and in
social functioning. Finally, the ALJ determined Kamann retained the capacity to
perform light work with a number of specified limitations. The ALJ acknowledged
Kamann's impairments could reasonably be expected to cause his symptoms, but
concluded that Kamann's "statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they are inconsistent
with the above residual functional capacity assessment." Appellant's Addendum 8.
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In coming to this conclusion, the ALJ gave great probative weight to the state
agency medical consultants' determinations and no weight to psychologist Toonstra's
assessment (for the same reasons discussed above regarding Toonstra's reliance upon
Kamann's subjective history). With respect to Kamann's capacity, the ALJ noted
Kamann had sought infrequent medical treatment despite supposedly disabling
symptoms, had taken no pain medications, and had not followed up with specialists
for treatment.
The district court determined that, in light of the record evidence as a whole,
substantial evidence supported the ALJ's residual functional capacity finding.
Kamann now appeals.
II
On appeal, Kamann contends the district court erred in (1) concluding the ALJ
adequately developed the record, (2) permitting the ALJ to formulate his own medical
opinion, and (3) permitting the ALJ to use an improper standard to discount Kamann's
credibility. We review de novo the district court's grant of summary judgment
upholding the ALJ's denial of social security benefits. Box v. Shalala, 52 F.3d 168,
170 (8th Cir. 1995). "Our role is to determine whether the Secretary's decision is
supported by substantial evidence on the entire record." Id. (quoting Cook v. Bowen,
797 F.2d 687, 690 (8th Cir. 1986)). "Substantial evidence is less than a
preponderance, but enough that a reasonable mind might accept as adequate to
support a conclusion." Kelley v. Callahan, 133 F.3d 583, 587 (8th Cir. 1998) (citing
Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997)).
A. Development of the Record as to Mental Impairments
Kamann first contends the district court erred in concluding the ALJ met his
basic duty to fully and fairly develop the record as to the material issues. See Snead
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v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) ("[T]he ALJ bears a responsibility to
develop the record fairly and fully, independent of the claimant's burden to press his
case."). Specifically, Kamann notes both agency doctors suggested the record was
insufficient to determine the extent of Kamann's mental impairments. Thus, he argues
the ALJ should have ordered additional testing rather than concluding based on an
insufficient record that Kamann's mental impairments did not meet the criteria for
disability benefits.
Ultimately, the claimant bears the burden of proving disability and providing
medical evidence as to the existence and severity of an impairment. Snead, 360 F.3d
at 836; 20 C.F.R. § 404.1512. Past this point, "an ALJ is permitted to issue a decision
without obtaining additional medical evidence so long as other evidence in the record
provides a sufficient basis for the ALJ's decision." Naber v. Shalala, 22 F.3d 186,
189 (8th Cir. 1994). Beyond the medical evidence presented by Kamann, the SSA
ordered one psychological evaluation and two additional reviews by agency
psychologists. The ALJ then thoroughly reviewed all the medical evidence before
him. For the reasons stated by the district court with respect to this issue, we
conclude the ALJ met his duty to fully and fairly develop the record. See Kamann v.
Astrue, No. 11-1261, 2012 WL 3229413, at *10-11 (D. Minn. July 11, 2012); 8th Cir.
R. 47B.
2. Functional Capacity Assessment
Kamann next challenges the ALJ's determination that he has the residual
functional capacity ("RFC") to perform light, unskilled work. Because psychologist
Toonstra opined that Kamann's mental impairments would present an obstacle even
to entry-level work and both agency psychologists concluded there was insufficient
information to diagnose Kamann accurately, Kamann argues the ALJ's conclusion is
unfounded. The SSA emphasizes, in turn, that the determination of a claimant's RFC
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at the administrative hearing level is the responsibility of an ALJ alone and is distinct
from a medical source's opinion. 20 C.F.R. § 404.1546(c).
Viewing the record as a whole, we find substantial evidence supported the
ALJ's determination. In February 2009, Kamann visited Dr. Rounds in preparation
for a disability hearing and self-reported his back pain level as a ten on a ten-point
scale. Admin. R. 389. Just four months prior, however, Kamann's insurance had
approved him for ten pain treatments, of which Kamann sought only two. Indeed, as
the ALJ noted, "[o]verall, [Kamann] has been seen relatively infrequently for his
impairments despite his allegations of disabling symptoms[,] . . . has not followed up
with specialists for further treatment[,] . . . has taken no pain medications."
Appellant's Addendum 9. With respect to Kamann's failure to seek treatment or take
medication, Kamann testified before the ALJ that he would not take any pain
medication because of his history with addiction. The record shows, however, that
Kamann received a prescription for percocet in connection with some dental work in
October 2009.
The discrepancies between Kamann's self-reported limitations and observed
capacity continue. On his disability report, Kamann suggested he had no family or
friends who could complete a third-party function report. But in fact, Kamann had
lived with his mother for a number of years and subsequently lived across the street
from her with a girlfriend/fiancée of thirteen years, whose daughter he helped raise.
Kamann reported his daily activities as walking to a table and sitting, feeding his
dogs, and eating. However, his mother told a treatment facility in 2003 that Kamann
had been building a garage by himself and was a practicing tattoo artist. As the
district court notes, "even the evaluation that Mr. Kamann argues should be given
more weight, that of Dr. Toonstra, concluded that there was cause for concern and
suspicion that Mr. Kamann was malingering his psychological symptoms." Kamann,
2012 WL 3229413, at *12. In light of these discrepancies, the ALJ reasonably
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rejected Toonstra's opinion—based entirely on Kamann's self-reported
condition—that Kamann would have difficulty performing even entry-level work.
Turning to the other medical evidence before the ALJ, the record substantially
supports the determination that Kamann is capable of performing light, unskilled
labor. Physical examinations conducted in 2002, 2003, and 2008 suggest Kamann
possessed a good range of motion and strength in his upper extremities, suffered no
spinal abnormalities other than mild scoliosis, and walked with a gait that showed
only some stiffness in the lower back. With regard to Kamann's mental impairments,
the record suggests doctors suspected each of Kamann's psychotic episodes were
associated with drug use. In connection with Kamann's commitment of April 29,
2003, after testing positive for cannabis, Kamann was described as becoming
"generally pleasant and cooperative as his substance was leaving his system." Admin.
R. 241. Contrary to Kamann's assertion that the record contained insufficient
evidence to support a RFC determination, we find the ALJ thoroughly reviewed years
of medical evidence on record and issued a finding consistent with the views of Dr.
Pressner, the reviewing agency psychologist. Accordingly, the district court correctly
upheld the ALJ's determination of Kamann's RFC.
3. ALJ's Determination of Kamann's Credibility
Finally, Kamann contends the ALJ used an improper standard to discount his
credibility. The ALJ found "[Kamann's] statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with the above residual functional capacity assessment." Appellant's
Addendum 8. Because credibility should be used to determine a claimant's RFC,
rather than using RFC to gauge credibility, Kamann argues he is entitled to reversal.
In our view, this is an argument concerning semantics and nothing more. As
discussed above, substantial evidence supports the ALJ's determination that Kamann
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lacked credibility with respect to the presence and extent of his disabling symptoms.
In reviewing the ALJ's findings, it is clear the ALJ first developed a credibility
determination based on numerous inconsistencies in Kamann's accounts and medical
evaluations reporting Kamann's suspected malingering of symptoms. Only then did
the ALJ develop Kamann's RFC. This is illustrated by the fact that in assessing
Kamann's RFC, the ALJ discredited Toonstra's opinion because (and only after
coming to the conclusion that) Kamann lacked credibility. See Appellant's
Addendum 10-11. Kamann is not entitled to reversal on this ground.
III
For the foregoing reasons, the district court's grant of summary judgment in
favor of the SSA is affirmed.
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