Story v. Colvin

Filing 20

OPINION MEMORANDUM..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 Edward Autrey on 4/15/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

CYNTHIA GAIL STORY
Plaintiff,
vs.
CAROLYN W. COLVIN
Commissioner of Social
Security Administration,
Defendant.

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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review, under
28 U.S.C. § 1383(c)(3), 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 38 years old at the time of the hearing. She was 36 at the time
of her application for benefits. She finished high school and has training in medical
billing and coding. The ALJ found Plaintiff had the severe impairments of:
obesity, insulin dependent diabetes mellitus, learning disorder and posttraumatic

stress disorder/anxiety, as well as reactive mood disorder pursuant to 20 CFR
416,920(c). At the October 18, 2011 hearing, Plaintiff testified that she was not
employed at the time. Plaintiff resides in a house with two other individuals who,
according to her, receive some type of benefits. She was able to lift 5 pounds when
necessary. Plaintiff applied for benefits on October 23, 2009. Plaintiff testified that
she cannot comprehend things so well; she cannot stand for longer than15 minutes
or sit for longer than 30 minutes. She cannot walk farther than two blocks without
stopping to rest. She also testified that she cleans from time to time and that neither
of the other residents of her abode will. She further testified that her back hurts
from time to time and may be the result of her weight.
A vocational expert also testified at the hearing. In response to the
hypothetical question of an individual who is 38 years old, no past relevant work,
high school education with training as medical billing or coding, and limited
medium exertional work and occasionally climb stairs and ramps, but never climb
ropes, ladders, and scaffolds; should work in temperature controlled environment;
avoid concentrated exposure to pulmonary irritants, unprotected heights, hazardous
machinery. Included was the limitation to performing simple tasks and only
occasional contact with then public or coworkers. The VE testified there were
other jobs available for the Plaintiff. The vocational expert testified that the jobs of
a metal spraying machine operator, shuttle spotter and riveting machine operator
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were available. Given another hypothetical, changing to light exertional level
restrictions, the VE testified that the position of collator operator, photocopy
machine operator and folding machine operator were available. The VE was also
inquired on whether there would be jobs available at the sedentary exertional level
and responded there would be positions available as a lens inserter and as a patcher
as well as document preparer, microfilm. Lastly the ALJ inquired if there would be
jobs available with the additional limitations that any job must allow for occasional
unscheduled disruptions in the work day and work week secondary to unreliability
as far as showing up for work, the necessity to lie down for extended periods
during the day, and an inability to focus or concentrate for a full eight hours. The
VE testified there would be no such jobs available.
Plaintiff’s application for supplemental security income benefits was denied
on February 5, 2010. Plaintiff appeared and testified before an ALJ on October
18, 2011. On December 16, 2011, the ALJ issued an unfavorable decision. On
April 25, 2013, 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. 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
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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 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.
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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 Decision
The ALJ utilized the five-step analysis as required in these cases. Here the
ALJ determined at Step One, that Plaintiff had not engaged in substantial gainful
activity since October 23, 2009, the application date. The ALJ found at Step Two
that Plaintiff has the severe impairments of obesity, insulin dependent diabetes
mellitus, learning disorder and posttraumatic stress disorder/anxiety, as well as
reactive mood disorder pursuant to 20 CFR 416,920(c).
At Step Three, the ALJ found that Plaintiff does not suffer from an
impairment or combination of impairments of a severity that meets or medically
equals the required severity of a listing as set out in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 416.920 (d), 416.925 and 416.926).
As required, prior to Step Four, the ALJ determined the Residual Functional
Capacity of Plaintiff to be as follows: to perform light work (lift or carry 20 pounds
occasionally and 10 pounds frequently, stand or walk for six hours out of an eighthour workday and sit for six hours out of an eight-hour workday). Plaintiff can
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occasionally stoop, kneel, crouch, or crawl. She must work in a temperaturecontrolled environment and avoid concentrated exposure to excessive vibration,
pulmonary irritants, unprotected heights, and hazardous machinery. She can only
perform simple tasks which require no more than occasional contact with the
public and coworkers.
At Step Four it was the finding of the ALJ that Plaintiff had no past relevant
work.
Finally, at Step five, the ALJ found that Plaintiff could perform other work
that existed in significant numbers in the national economy. The ALJ, therefore,
found Plaintiff not disabled, and denied the benefits sought by the Application.
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
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
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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 her appeal of the Commissioner's decision, Plaintiff makes the following
contentions: (1) The ALJ erred in arbitrarily determining a Residual Functional
Capacity by not giving enough weight to a treating physician; (2) The ALJ’s RFC
is not based upon the substantial evidence of record as required in that the ALJ did
not cite any medical evidence that supports the RFC; (3) The ALJ erred by failing
to conduct a proper credibility analysis when he improperly disregarded Plaintiff’s
statements concerning her mental and physical ability.
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RFC
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. As true, 596 F.3d 959,
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.
A claimant's subjective complaints may not be disregarded solely because
the objective medical evidence does not fully support them. The absence of
objective medical evidence is just one factor to be considered in evaluating the
claimant's credibility and complaints. The ALJ must fully consider all of the
evidence presented relating to subjective complaints, including the claimant's prior

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work record, and observations by third parties and treating and examining
physicians relating to such matters as:
(1) the claimant's daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant's pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant's functional restrictions.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him to reject the claimant's complaints.
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir.2005). “It is not enough that the
record contains inconsistencies; the ALJ must specifically demonstrate that he
considered all of the evidence.” Id. The ALJ, however, “need not explicitly discuss
each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.2004).
The ALJ need only acknowledge and consider those factors. Id. Although
credibility determinations are primarily for the ALJ and not the court, the ALJ's
credibility assessment must be based on substantial evidence. Rautio v. Bowen, 862
F.2d 176, 179 (8th Cir.1988).
The ALJ erred in arbitrarily determining a Residual Functional Capacity by
not giving enough weight to a treating physician
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Plaintiff contends that the ALJ should have afforded Dr. Dale, her treating
physician, controlling, or at least substantial weight. Story argues the ALJ should
have given controlling weight or substantial weight to the opinion Dr. Dale
provided through the Medical Source Statement-Physical relating to Plaintiff’s
limitations rather than the little weight determination made by the ALJ. The
claimant has the burden to prove the RFC at step four of the sequential evaluation,
and the ALJ determines it based on all relevant evidence. See Harris v. Barnhart,
356 F.3d 926, 930 (8th Cir. 2004). The RFC formulation is a part of the medical
portion of a disability adjudication as opposed to a vocational portion, which
involves consideration of age, education, and work experience. Although it is a
medical question, it is not based only on “medical” evidence, i.e., evidence from
medical reports or sources; rather an ALJ has the duty to formulate the RFC based
on all the relevant, credible evidence. See McKinney v. Apfel, 228 F.3d 860, 863
(8th Cir. 2000); Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000).
The ALJ here properly accorded little weight to the opinion of Dr. Dale.
The ALJ need not assign controlling or even significant weight just because the
doctor has treated the claimant in the past, as is here where Dr. Dale treated Story
for approximately 13 months before the evaluation which forms the basis for
Plaintiff’s argument. The ALJ will also consider whether the doctor’s opinion is
consistent with other evidence and opinions, the doctor’s specialty, and “other
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factors” like the extent to which doctor is familiar with other information in the
claimant’s case. See 20 C.F.R § 404.1527(c)(2) (2012); Brace v. Astrue, 578 F.3d
882, 885 (8th Cir. 2009). The ALJ may reject opinions that he finds are not
supported by other credible objective evidence in the record, or which are
unexplained or conclusory. See Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010)
(treating source “opinion does not automatically control in the face of other
credible evidence on the record that detracts from that opinion.”). The ALJ fully
discussed the medical and other evidence of record supporting the RFC finding.
See SSR 96-8p; McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (affirming
ALJ’s residual functional capacity determination where it was consistent with the
medical records and the observations of treating physicians and others relevant
evidence of pre-expiration disability (emphasis added).
Once the ALJ has reached his conclusion about the weight assigned to the
medical opinions in a case, the court need only evaluate whether substantial
evidence supports the ALJ’s analysis, not whether the evidence could have
supported a different conclusion in the first instance. See Goff v. Barnhart, 421
F.3d 785, 790-91 (8th Cir. 2005) (“[A]n appropriate finding of inconsistency with
other evidence alone is sufficient to discount the opinion.”); Metz v. Shalala, 49
F.3d 374, 377 (8th Cir. 1995) (internal quotes and citation omitted). Thus the issue
here is not whether Dr. Dale’s opinion was due controlling weight but whether
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substantial evidence supported the rejection of the opinion under the facts of this
case. Dr. Dale’s opinion was properly viewed in the context of the remainder of the
record, which showed that Plaintiff had little treatment for over a year during the
relevant period, and that Plaintiff’s other treating doctor, James Seeman, M.D.,
found little wrong with her gait or range of motion. Dr. Dale’s treatment notes
were benign, with little mention of deficits in upper extremity strength or gait
sufficient to account for the marked limitations he suggested on the form. Most of
his treatment notes documented normal neurological and musculoskeletal
attributes. The doctor had no imaging studies on which to base his opinions of
Plaintiff’s residual functional capacity. The objective evidence or absence thereof
provided no support of Dr. Dale’s opinion and was inconsistent with his opinion.
Substantial evidence clearly supports the decision. The RFC was supported by
substantial evidence of record.
The ALJ’s RFC is not based upon the substantial evidence of record as
required in that the ALJ did not cite any medical evidence that supports the
RFC
Plaintiff asserts that residual functional capacity must made by a doctor and
that since the ALJ afforded little weight to the Dr. Dale opinion there was therefore
no medical evidence supporting the ALJ conclusion of the RFC. Plaintiff ignores
however that the ALJ is not required to match his residual functional capacity to
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the opinion of some particular doctor’s opinion. See Martise v. Astrue, 641 F.3d
909, 927 (8th Cir. 2011) (“[T]he ALJ is not required to rely entirely on a particular
physician’s opinion or choose between the opinions [of] any of the claimant’s
physicians”) (internal citations omitted). Medical sources provide evidence
regarding residual functional capacity, but the Commissioner alone makes the final
residual functional capacity assessment based on the record as a whole, including
medical opinion evidence, with the claimant’s own testimony, treatment records,
and other credibility factors. 20 C.F.R. § 416.927(d)(2) (Commissioner uses
medical sources to “provide evidence” regarding several factors, including residual
functional capacity, but the “final responsibility for deciding these issues is
reserved to the Commissioner”). ALJ has a duty to formulate RFC based on all the
relevant, credible evidence of record, including testimony, and not rely just on
medical opinion evidence or subjective allegations of the claimant. See McKinney
v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000); Roberts v. Apfel, 222 F.3d 466, 469
(8th Cir. 2000). Here the record was more than sufficient to make a determination
consistent with the requirements of the applicable law. The ALJ heard Plaintiff’s
testimony, and had access to all of her treatment records through the period she
alleged she was disabled. He analyzed her treatment history, her relative lack of
treatment, the absence of clinical signs of physical limitation, her mental health

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treatment history, her poor work history, and her daily activities, before assessing
her residual functional capacity for a limited range of light work.
The ALJ erred by failing to conduct a proper credibility analysis when he
improperly disregarded Plaintiff’s statements concerning her mental and
physical ability.
Plaintiff asserts that the ALJ did not engage in the proper and explicit
discussion of her credibility and that the ALJ did not consider her subjective
complaints. Suffice to say credibility questions concerning a claimant’s subjective
testimony are “primarily for the ALJ to decide, not the courts.” Baldwin v.
Barnhart, 349 F.3d 549, 558 (8th Cir. 2003). As previously noted, to analyze a
claimant’s subjective complaints, the ALJ considers the entire record, including the
medical records; third party and Plaintiff’s statements; the claimant’s daily
activities; the duration, frequency and intensity of pain or other subjective
complaints; the dosage, effectiveness, and side effects of medication; precipitating
and aggravating factors; and functional restrictions. See 20 C.F.R. § 404.1529;
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The Eighth Circuit has
held that although the Polaski factors “must be taken into account, the ALJ’s
decision need not include a discussion of how every Polaski factor relates to the
claimant’s credibility.” Casey v. Astrue, 503 F.3d 687, 695 (8th Cir. 2007); Samons
v. Apfel, 497 F.3d 813, 820 (8th Cir. 2007) (“[W]e have not required the ALJ’s
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decision to include a discussion of how every Polaski ‘factor’ relates to the
claimant’s credibility.”). The ALJ in this matter referenced inconsistencies
between Plaintiff’s allegations and the medical record. The ALJ noted specific
reasons for discounting Plaintiff’s subjective allegations, including the lack of
objective medical evidence; normal physical findings relating to gait, range of
motion in her legs, straight leg raising; a lack of motor or sensory deficits; noncompliance with medical directives as noted by Dr. Seeman, one of her treating
physicians; medication non-compliance. The review of the record and the
description of inconsistencies is manifestly clear. The ALJ is not required to
discredit every subjective allegation offered by Plaintiff. See, e.g., Wiese v. Astrue,
552 F.3d 728, 733-34 (8th Cir. 2009). Wildman v. Astrue, 596 F.3d 959, 966 (8th
Cir. 2010) (quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (“An ALJ’s
failure to cite specific evidence does not indicate that such evidence was not
considered.”)). The conclusions and findings of the ALJ are supported by
substantial evidence of the record and will not be disturbed.
Conclusion
After careful review, the Court finds the ALJ’s decision is supported by
substantial evidence on the record as a whole. The decision will be affirmed.
Accordingly,

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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.
Dated this 15th day of April, 2014.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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