Ethridge v. Colvin

Filing 24

JUDGMENT. In accordance with the oral opinion set out on the record at the hearing held on January 7, 2016, a transcript of which is attached to this judgment, IT IS HEREBY ORDERED, ADJUDGED and DECREED that the Commissioner's decision denying plaintiff's application for disability insurance benefits under Title II of the Act, 42 U.S.C. §§401 et seq., and application for supplemental security income (SSI) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq., is affirmed. Signed by District Judge Catherine D. Perry on 1/11/2016. (Attachments: # 1 Excerpt of Ruling from Hearing)(CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONNA ETHRIDGE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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) No. 1:15-CV-109 CDP
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EXCERPT OF RULING FROM HEARING
BEFORE THE HONORABLE CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
JANUARY 7, 2016
APPEARANCES BY TELEPHONE:
For Plaintiff:

Kathleen E. Overton
PARMELE LAW FIRM, P.C.
1505 E. Bradford Parkway
Springfield, MO 65804

For Defendant:

Meghan
SOCIAL
601 E.
Kansas

REPORTED BY:

SHANNON L. WHITE, RMR, CRR, CSR, CCR
Official Court Reporter
United States District Court
111 South Tenth Street, Third Floor
St. Louis, MO 63102
[phone]

Jane McEvoy
SECURITY ADMINISTRATION
12th Street, Room 535
City, MO 64106

PRODUCED BY COURT REPORTER COMPUTER-AIDED TRANSCRIPTION

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(THE FOLLOWING PROCEEDINGS WERE HELD IN CHAMBERS.)

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THE COURT:

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Ms. Overton and Ms. McEvoy?

Hello.

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MS. MCEVOY:

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MS. OVERTON:

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THE COURT:

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Do I have

Yes.
Yes, Your Honor.

So we are resuming the telephone hearing

in the Ethridge v. Colvin case in Case No. 1:15-CV-109.

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This is Judge Perry.

I am now going to state my decision in the case.

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will enter a judgment in this case, and I will attach this

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portion of the transcript to that judgment, and this will be

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your opinion for the record in the case; that I will not write

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a separate written opinion, although I will file, like I say,

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the judgment with the attached transcript from this point

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forward.

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to order that from the court reporter.

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If you want a transcript of the argument, you'd have

Okay.

So the case is fully briefed and argued and is

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ready for resolution.

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considered -- I understand my responsibility to affirm the

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decision of the Commissioner if I conclude the decision is

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supported by substantial evidence when considering the record

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as a whole.

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substitute my judgment for that of the Administrative Law

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Judge or that of the Commissioner.

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In considering this case, I've

In other words, I don't have authority to

The plaintiff raises the claims that the ALJ's
residual functional capacity -- both mental and physical --

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assessment was not supported by the substantial evidence on

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the record as a whole, and the argument is that on the

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physical that it's not supported by medical evidence and on

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the mental that it didn't include all of the plaintiff's

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credible allegations.

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I am going to affirm the Commissioner's decision.

I

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do not believe that remand is appropriate.

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decision on residual functional capacity is at page 17 of the

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record, and he did conclude -- or she -- the judge did

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conclude that the claimant could -- had the capacity to

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perform light work and also that -- and with some limitations

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such as alternating between sitting and standing every thirty

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minutes and not climbing ladders, ropes.

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whole paragraph, but I've got it right in front of me.

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Additionally -- and some occasional -- only occasional

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bending, stooping, et cetera.

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exposure to work hazards.

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to simple, routine, repetitive tasks.

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say, page 17 of the record.

And the ALJ's

I'm not reading the

And some limitations with

And then on the mental, limited her
So it's at the, like I

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The ALJ reached this decision, I think, correctly,

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after -- or, you know, under the standards after evaluating

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the plaintiff's credibility and discussing the relevant

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evidence, including her testimony and the medical evidence and

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her daily activities and testimony of the vocational expert.

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And I don't think there was a substantial error.

This is

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supported by substantial evidence on the record as the whole.
So with regard to the nurse practitioner, Damon

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Davis, who did issue a medical source statement, the ALJ did

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not err in failing to assign any weight to this source

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statement because it's not an acceptable medical source under

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Social Security regulations and also because this opinion was

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unsupported and internally inconsistent and inconsistent with

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the record as a whole.

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The ALJ properly rejected Mr. Davis' opinion as

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unreliable because he stated that the plaintiff was limited to

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standing and walking an hour and sitting four hours in an

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eight-hour workday, but he didn't find she needed to lie down

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or recline and also that it was inconsistent with the record

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as a whole, including his own treatment notes which didn't

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reflect treatment for the limitations claimed in the

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statement, and the other medical evidence in the case.

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The plaintiff argues that there was no medical

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evidence to support this, but the law does not require a --

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specific opinions, as the plaintiff recognizes.

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particular, the medical evidence that was in the record, which

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includes the consulting physician, Chul Kim, M.D., showed only

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slightly reduced hand grip, with normal fine finger movements,

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normal sensation, motor functioning, reflexes and tone, and a

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slow but stable gait, and no edema.

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In

She was full weight bearing, could walk on her heels

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and toes, get on and off the examination table without

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significant problems, and perform a full squat with some pain.

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And although the doctor did recognize that there were some --

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she did have some pain on some movements, this -- I agree that

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this is essentially a normal examination.

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Additionally, with the arthritis, she had not been --

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had any imaging until 2012, even though she'd been diagnosed

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long before.

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most disabling condition, but she's not insulin dependent, and

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At her hearing, she said the diabetes was her

she has had basically conservative treatment.
So the ALJ properly considered that there was a lack

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of objective medical basis for the subjective complaints.

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here this is not -- the plaintiff's argument that there's no

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medical evidence and no opinion is not sufficient basis for a

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remand because plaintiff was referred for a consultative

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examination.

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support the plaintiff's position.

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the ALJ's failure to get more medical evidence.

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And so the record is developed.

And

It just doesn't

And so there's no error in

The lack of treatment is inconsistent with complaints

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of disabling condition and is an appropriate factor for the

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ALJ to consider.

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that effect, such as Clevenger and Kelley; where the

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impairment can be controlled by treatment or medication it

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can't be considered disabling.

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did rely on the medical evidence when fashioning this residual

There are numerous Eighth Circuit cases to

And so it's clear that the ALJ

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functional capacity.

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And the Eighth Circuit recently did consider a nurse

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practitioner and affirmed an ALJ's decision to disregard the

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opinion of a treating nurse practitioner, and that was the

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Crawford v. Colvin case.

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it was decided, I think, just recently, December 7 of 2015.

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Yeah, it was.

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It's Slip Opinion No. 15-1239, and

It was just last month, December 7.

And in that case they said, first of all, that the
nurse practitioner's opinion, as we know, was not an

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acceptable medical source, although it can be looked at as

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some -- as other evidence.

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could be discounted for treating -- well, here's what they

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said.

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for inconsistencies, then they certainly can discredit a nurse

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practitioner's inconsistent opinion, and I believe that is

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true here.

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was appropriate.

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the residual functional capacity is fine, I think.

The Eighth Circuit said that it

If the ALJ can discount a treating physician's opinion

So I think that the ALJ's treatment of Mr. Davis
And so I think that there's no doubt that

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With regard to the mental impairments, the plaintiff

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argues that limiting her to simple, routine, repetitive tasks

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doesn't adequately take into account the opinion of the

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non-examining state agency's psychologist, who did opine that

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she was moderately limited in the ability to maintain

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attention and concentration for extended periods.

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And the plaintiff relies on the Logan-Wilson case

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from Judge Ross, which was decided in 2014 in this district,

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where Judge Ross remanded the case for reevaluation because

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there was a pace limitation, and said that limiting her to

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simple instructions and nondetailed tasks didn't adequately

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account for the impairment in pace.

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However, in that case I think it is clearly

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distinguishable from this case.

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substantially more limitations with respect to pace than the

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plaintiff had here.

The claimant had

And this is not a situation where she's

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unable to do things quickly enough or perform within a

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schedule or maintain regular attendance or be punctual within

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customary tolerances or complete a normal work day or work

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week without interruptions or perform in a consistent pace

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without an unreasonable number or length of rest periods.

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Those are not additional limitations in this case, and many of

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them were present in Logan-Wilson.

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I think this case is more analogous to the case, I

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believe, cited by the defendant, but one of you cited the

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Faint case that came also out of this district, Judge Baker's

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case from June of 2014.

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determination that the claimant was limited to simple,

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unskilled work, where there were moderate limitations in

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concentration, persistence, and pace.

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the person was only moderately limited in his ability to carry

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out detailed instructions and maintain concentration for

And she affirmed the ALJ's

And she said, you know,

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extended periods of time; so simple, unskilled work adequately

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accommodated that.

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So in this case I think it's closer -- it's obviously

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not exactly like either one of those cases, but I think it's

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closer to Faint than Logan-Wilson.

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to be only moderately limited in her ability to carry out

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detailed instructions or maintain attention and concentration

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for extended periods of time; so limiting her to simple,

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routine, repetitive tasks adequately accounts for this

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And the doctor found her

limitation.
And I will also note that this RFC is consistent with

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the objective medical findings in the record, which include

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only a minimal treatment history for depression and anxiety,

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no history of counseling or medication management from the

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date of onset until the decision by the ALJ; and so lack of

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treatment is an appropriate factor for the ALJ to consider.

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And, additionally, of course, these were only mild conditions.

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She was treated for the depression earlier and found

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a great improvement, and she had -- you know, she reported

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that she felt much better and had no -- had much -- was

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greatly improved.

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or mood disorder she might have suffered from could have been

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controlled by medication adequately; so this is not a

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disabling limitation.

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no physician has ever stated that the plaintiff was unable to

And so it's clear that whatever depression

And just like the physical limitations,

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work because of her mental limitations.
So I don't -- I agree with the Commissioner that the

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RFC is not inconsistent with her moderate mental impairments

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and that the ALJ properly relied on the testimony of the

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vocational expert, the plaintiff, and also did consider the

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statement from her daughter, although it was cumulative, and

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all of the evidence in the record in finding that plaintiff

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retained the ability to work as a price marker, routing clerk,

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and collator operator.

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And this finding is substantially

supported by the record as a whole.

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Now, finally, I want to address one point that we

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talked about somewhat here today, and the plaintiff argues

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that the ALJ relied too heavily on the daily activities of the

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claimant when formulating the RFC; and, of course, the ALJ is

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required to consider the daily activities.

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that -- I think this really could be characterized as more a

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Polaski argument that the ALJ didn't properly evaluate her

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credibility, because, you know, he considered the activities;

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and so the argument is, well, he gave too much weight to those

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or didn't consider them appropriately.

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So it's really

And as we all know, the ALJ doesn't have to go

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through each Polaski factor, but if he's discrediting the

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claimant's complaints, then he has to -- you know, he needs to

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state why.

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credibility based on her own testimony and the objective

In here the ALJ did properly evaluate the

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medical record, her daily activities, the conservative nature

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of her treatment, and the lack of restrictions set out by

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treating and consulting physicians.

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He considered that she cared for her disabled adult

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daughter, cooked meals, washed dishes, watched television,

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attended church, used a computer, drove, left the house by

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herself, did laundry, shopped, played board games, visited

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family, and used a sewing machine.

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And he summarized her testimony regarding her daily

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activities, including her subjective activities of pain, and

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the third-party statement from her daughter, but he wasn't

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required to believe all of her assertions, particularly in

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light of the fact that she was a part-time care giver for her

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adult disabled child.

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cited by the Commissioner also supports that.

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And the Johnson case that I believe was

Now, I recognize that she was not doing, you know,

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caring for her child on an eight hour a day.

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said, I think it was two hours and forty-five minutes a day,

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and she said she had to take breaks in between.

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still substantial activities that are appropriate for the ALJ

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to consider, especially in conjunction with all of the other

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activities that she engaged in.

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It was as she

But there's

So I think that the ALJ did seriously consider, but

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explicitly discredited, the subjective complaints, and

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therefore, there's no reason for me to disturb those findings.

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And so for all the reasons I've stated, I believe

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that the -- and I conclude that the ALJ's RFC and

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determination -- overall determination that the claimant is

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not disabled, was not disabled during the relevant time

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period, is supported by substantial evidence on the record as

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a whole, and so I will affirm the decision.

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And as I said, I'll issue a judgment consistent with

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this opinion, and I will attach a transcript of this oral

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opinion to that judgment.

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So this concludes the hearing.

It will take a few

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days for me to enter the judgment because, after all, we need

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to get a transcript, but I will be doing so in the near

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future.

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to run from when the judgment itself is entered.

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And, you know, obviously, all your time limits start
All right?

So at this time I will terminate the telephone call.

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Thank you both for participating by phone.

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that is not to deny you a chance to come to court, but it's

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really to keep costs down for everyone, and so I appreciate

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your participating by phone.

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My goal in doing

And court is in recess.

(PROCEEDINGS CONCLUDED AT 10:45 AM.)

CERTIFICATE

I, Shannon L. White, Registered Merit Reporter and
Certified Realtime Reporter, hereby certify that I am a duly
appointed Official Court Reporter of the United States
District Court for the Eastern District of Missouri.
I further certify that the foregoing is a true and
accurate transcript of the proceedings held in the
above-entitled case and that said transcript is a true and
correct transcription of my stenographic notes.
I further certify that this transcript contains
pages 1 through 11 inclusive and that this reporter takes no
responsibility for missing or damaged pages of this transcript
when same transcript is copied by any party other than this
reporter.
Dated at St. Louis, Missouri, this 8th day of January,
2016.

_________________________
/s/Shannon L. White
Shannon L. White, CRR, RMR, CCR, CSR
Official Court Reporter