Miller v. Astrue

Filing 17

OPINION MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is affirmed. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry E. Autrey on 2/7/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

SHAWN MILLER,
Plaintiff,
vs.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

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Case No. 1:12CV218 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review
under 28 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff’s
application for Supplemental Security Income (SSI) under Title XVI, 42 U.S.C.
§1381, et seq. For the reasons set forth below, the Court affirms the
Commissioner's denial of Plaintiff's application.
Facts and Background
Plaintiff was 30 years old at the time of the hearing. He did not graduate
from high school, nor had he obtained his GED, but was interested in doing so.
The ALJ found Plaintiff had the severe impairments of: degenerative disc disease

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as the Defendant in this suit. No further action needs to be taken to continue this
suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

of the cervical and lumbar spine, mild bilateral median neuropathy at wrists and
ulnar nerve, recent right rotator cuff injury in March, 2011 with surgical repair in
June, 2011 and depression.

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At the September 2, 2011 hearing, Plaintiff testified that he dropped out of
high school in ninth grade because his parents divorced and he went to work.
Plaintiff is married, with three children, two who were 11 (presumably twins), and
one 5 year old at the time of the hearing. Plaintiff had been a groundskeeper, a
grocery stocker, a restaurant prep and table busser, and construction worker.
Plaintiff was injured in a car accident and had to have fusion surgery at C5-6. In
addition, Plaintiff’s elbow was injured. Plaintiff testified that he has gotten worse
since his denial of benefits in 2006 in that he has no strength at all. He testified he
cannot lift a gallon of milk without using two hands. Plaintiff has pain in his neck
and both sides of his shoulders, the pain goes down his arms and makes his legs
tingle and throb. Plaintiff also testified that he can stand for 30 minutes at a time,
which seems to relieve some of the pain in his back, can sit for 10 minutes before
his back begins to hurt and has to lie down about an hour or two per day, three or
four times a day. If lying down for 15 minutes, he would have to lie down five to
six times per day.
Plaintiff testified that he sees a psychiatrist, for feelings of inadequacy and
panic attacks. Plaintiff doesn’t drive and he can only turn his head 45 degrees.
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Plaintiff takes Hydrocodone for pain, pristis for depression, clonazepam for
anxiety, seroquel to sleep. On a good day, Plaintiff can help his mother and sister,
who come to help Plaintiff daily, by folding clothes.
A vocational expert also testified. The VE testified that Plaintiff, with the
limitations of lifting ten pounds occasionally, standing and walking four hours in
an eight hour work day, change positions every 30 minutes, no ladders, ropes or
scaffolds, with balancing, kneeling, crouching, crawling, stooping, ramps and
stairs limited to occasionally, could perform sedentary unskilled work, such as a
hand packer job. The VE testified there are jobs in Missouri that satisfy these
requirements.
Plaintiff’s application for social security and supplemental security income
benefits under Titles II, 42 U.S.C. §§ 401, et seq., and XVI of the Act, 42 U.S.C. §
1381, et seq., was denied on March 2, 2010. On January 26, 2012, the ALJ issued
an unfavorable decision. On November 14, 2012, the Appeals Council denied
Plaintiff’s request for review of the ALJ’s decision. Thus, the decision of the ALJ
stands as the final decision of the Commissioner.
Standard For Determining Disability
The Social Security Act defines as disabled a person who is “unable to
engage in any substantial gainful activity by reason of any medically determinable
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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 period of not less than twelve
months.” 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir.2010). The impairment must be “of such severity that [the claimant] is not
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 the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
A five-step regulatory framework is used to determine whether an
individual claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a),
416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.2011)
(discussing the five-step process). At Step One, the ALJ determines whether the
claimant is currently engaging in “substantial gainful activity”; if so, then he is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I); McCoy, 648 F.3d at
611. At Step Two, the ALJ determines whether the claimant has a severe
impairment, which is “any impairment or combination of impairments which
significantly limits [the claimant's] physical or mental ability to do basic work
activities”; if the claimant does not have a severe impairment, he is not disabled.
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20 C.F.R. §§ 404.1520(a) (4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c);
McCoy, 648 F.3d at 611. At Step Three, the ALJ evaluates whether the claimant's
impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the claimant has such an impairment, the Commissioner will
find the claimant disabled; if not, the ALJ proceeds with the rest of the five-step
process. 20 C.F.R. §§ 404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the ALJ must assess the claimant's “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his] limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.2009) (citing 20 C.F.R. § 404.1545
(a) (1)); see also 20 C.F.R. §§ 404.1520(e), 416.920(e). At Step Four, the ALJ
determines whether the claimant can return to his past relevant work, by
comparing the claimant's RFC with the physical and mental demands of the
claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can
perform his past relevant work, he is not disabled; if the claimant cannot, the
analysis proceeds to the next step. Id.. At Step Five, the ALJ considers the
claimant's RFC, age, education, and work experience to determine whether the
claimant can make an adjustment to other work in the national economy; if the
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claimant cannot make an adjustment to other work, the claimant will be found
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at
611.
Through Step Four, the burden remains with the claimant to prove that he is
disabled. Moore, 572 F.3d at 523. At Step Five, the burden shifts to the
Commissioner to establish that the claimant maintains the RFC to perform a
significant number of jobs within the national economy. Id.; Brock v. Astrue, 674
F.3d 1062, 1064 (8th Cir.2012).
ALJ’s Decision
Applying the foregoing five-step analysis, the ALJ in this case determined
at Step One that Plaintiff had not engaged in substantial gainful activity since
October 19, 2009, the application date. At Step Two, the ALJ found that Plaintiff
had the following severe impairments: degenerative disc disease of the cervical
and lumbar spine, mild bilateral median neuropathy at wrists and ulnar nerve,
recent right rotator cuff injury in March, 2011 with surgical repair in June, 2011
and depression. At Step Three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that met or equaled in severity of any
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1.
Prior to Step Four, the ALJ found that Plaintiff had the residual functional
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capacity to perform a limited range of light work as defined in 20 CFR 416.967(a).
Specifically, Plaintiff could lift, carry push, or pull 10 pounds occasionally, and
less than 10 pounds frequently; stand or walk up to fur hours total in an 8 hour
workday; sit four hours in an 8 hour work day. He would also require to change
position between sitting and standing every 30 minutes. He would be unable to
use ladders, ropes or scaffolds, occasionally balance, kneel, crouch, crawl, stoop
and climb ramps or stairs. Plaintiff could not perform overhead work or tasks
requiring turning the head from left to right and would be limited to performing
simple routine tasks.
At Step Four, the ALJ determined that Plaintiff is unable to perform any
past relevant work.
At Step Five, the ALJ considered Plaintiff’s RFC, age, education, and work
experience to determine that there are jobs that exist in the national economy that
Plaintiff can perform.
Standard For Judicial Review
The Court’s role in reviewing the Commissioner’s decision is to determine
whether the decision “‘complies with the relevant legal requirements and is
supported by substantial evidence in the record as a whole.’” Pate–Fires v. Astrue,
564 F.3d 935, 942 (8th Cir.2009) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th
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Cir.2008)). “Substantial evidence is ‘less than preponderance, but enough that a
reasonable mind might accept it as adequate to support a conclusion.’” Renstrom
v. Astrue, 680 F.3d 1057, 1063 (8th Cir.2012) (quoting Moore v. Astrue, 572 F.3d
520, 522 (8th Cir.2009)). In determining whether substantial evidence supports
the Commissioner’s decision, the Court considers both evidence that supports that
decision and evidence that detracts from that decision. Id. However, the court
“‘do[es] not reweigh the evidence presented to the ALJ, and [it] defer[s] to the
ALJ’s determinations regarding the credibility of testimony, as long as those
determinations are supported by good reasons and substantial evidence.’” Id.
(quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.2006)). “If, after
reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s
findings, the court must affirm the ALJ’s decision.’” Partee v. Astrue, 638 F.3d
860, 863 (8th Cir.2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th
Cir.2005)). The Court should disturb the administrative decision only if it falls
outside the available “zone of choice” of conclusions that a reasonable fact finder
could have reached. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.2006).
Discussion
In his appeal of the Commissioner's decision, Plaintiff makes the following
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arguments: (1) The ALJ erred when he found Plaintiff did not meet listing
1.02(B)(2)(b), 1.05 and 1.08. (2) The ALJ erred in failing to consider Plaintiff’s
pain as significant non-exertional limitation and therefore his evaluation of
Plaintiff’s RFC was deficient.
Listings 1.02(B)(2)(b), 1.05 and 1.08
“The claimant has the burden of proving that his impairment meets or equals
a listing,” Carlson v. Astrue, 604 F.3d 589, 593 (8th Cir.2010); and, “ ‘[t]o meet a
listing, an impairment must meet all of the listing's specified criteria,’” id. (quoting
Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir.2004)).
Listing 1.02 states, in relevant part,
1.02 Major dysfunction of a joint(s) (due to any cause): Characterized
by gross anatomical deformity (e.g., subluxation, contracture, bony or
fibrous ankylosis, instability) and chronic joint pain and stiffness with
signs of limitation of motion or other abnormal motion of the affected
joint(s), and findings on appropriate medically acceptable imaging of
joint space narrowing, bony destruction, or ankylosis of the affected
joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (I .e.,
hip, knee, or ankle), resulting in inability to ambulate effectively, as
defined in 1.00B2b; or
B. Involvement of one major peripheral joint in each upper extremity
(i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform
fine and gross movements effectively, as defined in 1.00B2c.
20 C.F.R. Part 404, Subpart P, App. 1, § 1.02.
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Although Plaintiff argues that he meets Listing “1.02(B)(2)(b),” no such
section exists. Plaintiff appears to be relying instead on listing 1.02(B). Listing
1.02(B) requires that plaintiff demonstrate an inability to perform fine and gross
movements effectively. There is no evidence of difficulty in Plaintiff's ability to
perform fine and gross movements. Thus, Plaintiff's argument that the ALJ erred
in finding he did not meet Listing 1.02(B) lacks merit.
Plaintiff next argues that he meets Listing 1.05. Listing 1.05 concerns
amputation. See 20 C.F.R. Part 404, Subpart P, App. 1, § 1.05. This issue is not
relevant to this case. Thus, the ALJ properly found that plaintiff did not meet
Listing 1.05.
Plaintiff finally argues that he meets Listing 1.08. To meet Listing 1.08, a
claimant must have “[s]oft tissue injury (e.g., burns) of an upper or lower
extremity, trunk, or face and head.” See 20 C.F.R. Part 404, Subpart P, App. 1, §
1.08. There is no evidence in the record of soft tissue injury. Thus, the ALJ
properly found that plaintiff did not meet Listing 1.08.
In this case, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals a listed impairment.
The ALJ specifically considered Listing 1.04, disorders of the spine, which was
appropriate due to Plaintiff's severe spinal impairments. The ALJ found that
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Plaintiff did not meet this listing because the medical evidence did not establish
the requisite evidence of nerve root compression, spinal arachnoiditis or lumbar
spinal stenosis as required under this listing. There was no evidence that Plaintiff’s
back disorder has resulted in an inability to ambulate effectively, as defined in
1.00(B)(2)(b).
In consideration of Listing 11.01 the ALJ found that the record failed to
establish significant and persistent disorganization of motor function in two
extremities resulting in sustained disturbance of gross and dexterous movement or
gait and station or significant interference with speech, vision, mental function or
daily activities.
In consideration of Listing 11.14, the ALJ found that the record failed to
demonstrate any significant and persistent disorganization of motor function in
two extremities that have resulted in sustained disturbance of gross and dexterous
movements or gait and station.
The ALJ also considered Plaintiff’s mental impairment and found it did not
meet or medically equal the criteria of listing 12.04. Plaintiff only had mild
restrictions in activities of daily living. He is able to attend to his personal needs
independently, he is able to live with his wife and children, and his actions are
appropriate and effective in manner. He only has mild difficulties in social
functioning. He has been married for 13 years, has three children, he goes to the
doctor when necessary. Regarding concentration, persistence or pace, the ALJ
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found that Plaintiff has moderate difficulties. During the hearing, Plaintiff did not
demonstrate or manifest any difficulty concentrating. He was able to process
questions without difficulty, and responded appropriately. He paid attention.
While the ALJ found that the record established that Plaintiff had some difficulties
with concentration, he would be able to perform simple routine tasks.
The Plaintiff has had no periods of decompensation. Since Plaintiff’s
mental impairment failed to satisfy at least two “marked” limitations, or one
“marked” limitation with repeated episodes of decompensation, each one of
extended duration, he did not meet Paragraph B criteria. The ALJ also analyzed
whether Plaintiff met Paragraph C, and found that the evidence failed to establish
the presence of the necessary criteria.
Residual Functional Capacity
Plaintiff next argues that the ALJ failed to consider Plaintiff's pain as a
significant non-exertional limitation. Plaintiff contends that the ALJ's
determination that Plaintiff retained the RFC for light work is not supported by
substantial evidence.
A claimant's RFC is the most an individual can do despite the combined
effects of all of his or her credible limitations. See 20 C.F.R. § 404.1545. An
ALJ's RFC finding is based on all of the record evidence, including the claimant's
testimony regarding symptoms and limitations, the claimant's medical treatment
records, and the medical opinion evidence. See Wildman v. Astrue, 596 F.3d 959,
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969 (8th Cir.2010); see also 20 C.F.R. § 404.1545; Social Security Ruling (SSR)
96–8p. An ALJ may discredit a claimant's subjective allegations of disabling
symptoms to the extent they are inconsistent with the overall record as a whole,
including: the objective medical evidence and medical opinion evidence; the
claimant's daily activities; the duration, frequency, and intensity of pain; dosage,
effectiveness, and side effects of medications and medical treatment; and the
claimant's self-imposed restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir.1984); 20 C.F.R. § 404.1529; SSR 96–7p.
Although the ALJ bears the primary responsibility for assessing a claimant's
RFC based on all relevant evidence, a claimant's RFC is a medical question.
Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.2001) (citing Lauer v. Apfel, 245
F.3d 700, 704 (8th Cir.2001)). Therefore, an ALJ is required to consider at least
some supporting evidence from a medical professional. See Lauer, 245 F.3d at 704
(some medical evidence must support the determination of the claimant's RFC);
Casey v. Astrue, 503 F .3d 687, 697 (the RFC is ultimately a medical question that
must find at least some support in the medical evidence in the record). An RFC
determination made by an ALJ will be upheld if it is supported by substantial
evidence in the record. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.2006).
The ALJ made the following determination with regard to Plaintiff's RFC:
perform a limited range of light work as defined in 20 CFR 416.967(a).
Specifically, Plaintiff could lift, carry push, or pull 10 pounds occasionally, and
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less than 10 pounds frequently; stand or walk up to fur hours total in an 8 hour
workday; sit four hours in an 8 hour work day. He would also require to change
position between sitting and standing every 30 minutes. He would be unable to
use ladders, ropes or scaffolds, occasionally balance, kneel, crouch, crawl, stoop
and climb ramps or stairs. Plaintiff could no perform overhead work or tasks
requiring turning the head from left to right and would be limited to performing
simple routine tasks.
As stated above, Plaintiff contends that the ALJ's determination that
Plaintiff retained the RFC for light work is not supported by substantial evidence.
In determining Plaintiff's RFC, the ALJ first assessed the credibility of
Plaintiff's subjective complaints of pain and limitations under Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir.1984). Polaski requires the consideration of: (1) the
claimant's daily activities; (2) the duration, frequency, and intensity of the pain;
(3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects
of medication; and (5) functional restrictions. 739 F.2d at 1322.
The ALJ noted that the objective medical evidence did not support
Plaintiff's allegations of disability. Although the ALJ may not discount subjective
complaints solely because they are not fully supported by the objective medical
evidence, the lack of supporting objective medical evidence may be considered as
a factor in evaluating the claimant's credibility. See Curran–Kicksey v. Barnhart,
315 F.3d 964, 968 (8th Cir.2003).
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The ALJ discussed Plaintiff's medical records vis a vis Plaintiff’s complaints
of disabling pain. The MRI of Plaintiff’s lumbar spine in December, 2006 showed
some mild annular bulges. The MRI of his lumbar spine in October 2009 was
negative for any abnormality. Another MRI in August, 2009 showed all findings
within normal limits. Plaintiff’s cervical spine X-rays in December 2008 the
previous fusion at C5-6 in good position and a straightening of overall alignment
suggested associated muscular spasm. X-rays of the cervical spine from
December 2009 showed anterior fusion at C5-6, but, otherwise preserved vertebral
body heights, disc spaces, intra vertebral foramen and alignment.
Plaintiff’s doctors reported some tenderness and some limited range of
motion, but no major problems.
Plaintiff has never been prescribed an assistance device; he has been treated
primarily with medications for pain management, which has provided Plaintiff
relief for pain. Indeed, Dr. Haiderzad diagnosed Plaintiff with “prescription pain
medication abuse,” establishing that Plaintiff did not comply with the prescribed
manner of taking his pain medication. Evidence of effective medication resulting
in relief may diminish the credibility of a claimant's complaints. See Rose v. Apfel,
181 F.3d 943, 944 (8th Cir.1999).
The ALJ concluded that Plaintiff's post fusion surgery is not disabling. (Tr.
16). The ALJ stated that Plaintiff does not require an assistive device, and
additional surgery and physical therapy have not been recommended. The medical
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evidence cited by the ALJ supports these findings.
The ALJ considered the finding of non-disability made by State agency
mental medical consultants pursuant to Ruling 96-6p. Dr. Spence determined that
Plaintiff’s mental impairments were not severe. Plaintiff also takes his prescribed
mental health medications as prescribed. No treating physician has determined
that Plaintiff has any mental limitations. The presence or absence of functional
limitations is an appropriate Polaski factor, and “[t]he lack of physical restrictions
militates against a finding of total disability.” Hutton v. Apfel, 175 F.3d 651, 655
(8th Cir.1999) (citing Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993)).
An administrative opinion must establish that the ALJ considered the
appropriate factors. See Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir.2001).
However, each and every Polaski factor need not be discussed in depth, so long as
the ALJ points to the relevant factors and gives good reasons for discrediting a
claimant's complaints. See Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir.2001).
In this case, the reasons given above by the ALJ for discrediting Plaintiff's
complaints of disabling pain are sufficient and his finding that Plaintiff's
complaints are not entirely credible is supported by substantial evidence.
The ALJ's RFC determination is supported by the record as a whole. The
medical evidence discussed above reveals that Plaintiff's back pain improved with
medication. The ALJ acknowledged that Plaintiff experienced some pain due to
his back impairment and found he was capable of only a limited range of light
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work. The ALJ included a sit/stand option, which is consistent with Plaintiff's
testimony that he has to stand to relieve the pressure. The ALJ also credited
Plaintiff's testimony that he experienced difficulty with concentration and being
around people, in limiting him to simple routine tasks. The record does not
support the presence of any greater limitations than those found by the ALJ. The
vocational expert testified that an individual with the RFC found by the ALJ was
capable of performing other work existing in significant numbers in the national
economy.
The ALJ’s RFC finding is clearly based upon the record as a whole. The
ALJ summarized Plaintiff’s testimony regarding his limitations, the treatment
notes regarding his impairments, the medical opinions in the record, Plaintiff’s
representations in his disability report, and the ALJ’s credibility findings. The
ALJ applied the proper standard to the facts before him and his determination of
Plaintiff’s RFC is supported by the record as a whole.
Conclusion
After careful examination of the record, the Court finds the Commissioner's
determination is supported by substantial evidence on the record as a whole, and
therefore, the decision will be affirmed.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of
Social Security is affirmed.
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A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 7th day of February, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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