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)

Download PDF
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION DONNA ETHRIDGE, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) No. 1:15-CV-109 CDP ) ) ) ) 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 (314) 244-7966 Jane McEvoy SECURITY ADMINISTRATION 12th Street, Room 535 City, MO 64106 PRODUCED BY COURT REPORTER COMPUTER-AIDED TRANSCRIPTION Excerpt of Ruling 2 1 (THE FOLLOWING PROCEEDINGS WERE HELD IN CHAMBERS.) 2 THE COURT: 3 Ms. Overton and Ms. McEvoy? Hello. 4 MS. MCEVOY: 5 MS. OVERTON: 6 THE COURT: 7 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. 8 9 This is Judge Perry. I am now going to state my decision in the case. I will enter a judgment in this case, and I will attach this 10 portion of the transcript to that judgment, and this will be 11 your opinion for the record in the case; that I will not write 12 a separate written opinion, although I will file, like I say, 13 the judgment with the attached transcript from this point 14 forward. 15 to order that from the court reporter. 16 If you want a transcript of the argument, you'd have Okay. So the case is fully briefed and argued and is 17 ready for resolution. 18 considered -- I understand my responsibility to affirm the 19 decision of the Commissioner if I conclude the decision is 20 supported by substantial evidence when considering the record 21 as a whole. 22 substitute my judgment for that of the Administrative Law 23 Judge or that of the Commissioner. 24 25 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 -- Excerpt of Ruling 3 1 assessment was not supported by the substantial evidence on 2 the record as a whole, and the argument is that on the 3 physical that it's not supported by medical evidence and on 4 the mental that it didn't include all of the plaintiff's 5 credible allegations. 6 I am going to affirm the Commissioner's decision. I 7 do not believe that remand is appropriate. 8 decision on residual functional capacity is at page 17 of the 9 record, and he did conclude -- or she -- the judge did 10 conclude that the claimant could -- had the capacity to 11 perform light work and also that -- and with some limitations 12 such as alternating between sitting and standing every thirty 13 minutes and not climbing ladders, ropes. 14 whole paragraph, but I've got it right in front of me. 15 Additionally -- and some occasional -- only occasional 16 bending, stooping, et cetera. 17 exposure to work hazards. 18 to simple, routine, repetitive tasks. 19 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 20 The ALJ reached this decision, I think, correctly, 21 after -- or, you know, under the standards after evaluating 22 the plaintiff's credibility and discussing the relevant 23 evidence, including her testimony and the medical evidence and 24 her daily activities and testimony of the vocational expert. 25 And I don't think there was a substantial error. This is Excerpt of Ruling 4 1 2 supported by substantial evidence on the record as the whole. So with regard to the nurse practitioner, Damon 3 Davis, who did issue a medical source statement, the ALJ did 4 not err in failing to assign any weight to this source 5 statement because it's not an acceptable medical source under 6 Social Security regulations and also because this opinion was 7 unsupported and internally inconsistent and inconsistent with 8 the record as a whole. 9 The ALJ properly rejected Mr. Davis' opinion as 10 unreliable because he stated that the plaintiff was limited to 11 standing and walking an hour and sitting four hours in an 12 eight-hour workday, but he didn't find she needed to lie down 13 or recline and also that it was inconsistent with the record 14 as a whole, including his own treatment notes which didn't 15 reflect treatment for the limitations claimed in the 16 statement, and the other medical evidence in the case. 17 The plaintiff argues that there was no medical 18 evidence to support this, but the law does not require a -- 19 specific opinions, as the plaintiff recognizes. 20 particular, the medical evidence that was in the record, which 21 includes the consulting physician, Chul Kim, M.D., showed only 22 slightly reduced hand grip, with normal fine finger movements, 23 normal sensation, motor functioning, reflexes and tone, and a 24 slow but stable gait, and no edema. 25 In She was full weight bearing, could walk on her heels Excerpt of Ruling 5 1 and toes, get on and off the examination table without 2 significant problems, and perform a full squat with some pain. 3 And although the doctor did recognize that there were some -- 4 she did have some pain on some movements, this -- I agree that 5 this is essentially a normal examination. 6 Additionally, with the arthritis, she had not been -- 7 had any imaging until 2012, even though she'd been diagnosed 8 long before. 9 most disabling condition, but she's not insulin dependent, and 10 11 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 12 of objective medical basis for the subjective complaints. 13 here this is not -- the plaintiff's argument that there's no 14 medical evidence and no opinion is not sufficient basis for a 15 remand because plaintiff was referred for a consultative 16 examination. 17 support the plaintiff's position. 18 the ALJ's failure to get more medical evidence. 19 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 20 of disabling condition and is an appropriate factor for the 21 ALJ to consider. 22 that effect, such as Clevenger and Kelley; where the 23 impairment can be controlled by treatment or medication it 24 can't be considered disabling. 25 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 Excerpt of Ruling 6 1 functional capacity. 2 And the Eighth Circuit recently did consider a nurse 3 practitioner and affirmed an ALJ's decision to disregard the 4 opinion of a treating nurse practitioner, and that was the 5 Crawford v. Colvin case. 6 it was decided, I think, just recently, December 7 of 2015. 7 Yeah, it was. 8 9 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 10 acceptable medical source, although it can be looked at as 11 some -- as other evidence. 12 could be discounted for treating -- well, here's what they 13 said. 14 for inconsistencies, then they certainly can discredit a nurse 15 practitioner's inconsistent opinion, and I believe that is 16 true here. 17 was appropriate. 18 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 19 With regard to the mental impairments, the plaintiff 20 argues that limiting her to simple, routine, repetitive tasks 21 doesn't adequately take into account the opinion of the 22 non-examining state agency's psychologist, who did opine that 23 she was moderately limited in the ability to maintain 24 attention and concentration for extended periods. 25 And the plaintiff relies on the Logan-Wilson case Excerpt of Ruling 7 1 from Judge Ross, which was decided in 2014 in this district, 2 where Judge Ross remanded the case for reevaluation because 3 there was a pace limitation, and said that limiting her to 4 simple instructions and nondetailed tasks didn't adequately 5 account for the impairment in pace. 6 However, in that case I think it is clearly 7 distinguishable from this case. 8 substantially more limitations with respect to pace than the 9 plaintiff had here. The claimant had And this is not a situation where she's 10 unable to do things quickly enough or perform within a 11 schedule or maintain regular attendance or be punctual within 12 customary tolerances or complete a normal work day or work 13 week without interruptions or perform in a consistent pace 14 without an unreasonable number or length of rest periods. 15 Those are not additional limitations in this case, and many of 16 them were present in Logan-Wilson. 17 I think this case is more analogous to the case, I 18 believe, cited by the defendant, but one of you cited the 19 Faint case that came also out of this district, Judge Baker's 20 case from June of 2014. 21 determination that the claimant was limited to simple, 22 unskilled work, where there were moderate limitations in 23 concentration, persistence, and pace. 24 the person was only moderately limited in his ability to carry 25 out detailed instructions and maintain concentration for And she affirmed the ALJ's And she said, you know, Excerpt of Ruling 1 8 extended periods of time; so simple, unskilled work adequately 2 accommodated that. 3 So in this case I think it's closer -- it's obviously 4 not exactly like either one of those cases, but I think it's 5 closer to Faint than Logan-Wilson. 6 to be only moderately limited in her ability to carry out 7 detailed instructions or maintain attention and concentration 8 for extended periods of time; so limiting her to simple, 9 routine, repetitive tasks adequately accounts for this 10 11 And the doctor found her limitation. And I will also note that this RFC is consistent with 12 the objective medical findings in the record, which include 13 only a minimal treatment history for depression and anxiety, 14 no history of counseling or medication management from the 15 date of onset until the decision by the ALJ; and so lack of 16 treatment is an appropriate factor for the ALJ to consider. 17 And, additionally, of course, these were only mild conditions. 18 She was treated for the depression earlier and found 19 a great improvement, and she had -- you know, she reported 20 that she felt much better and had no -- had much -- was 21 greatly improved. 22 or mood disorder she might have suffered from could have been 23 controlled by medication adequately; so this is not a 24 disabling limitation. 25 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, Excerpt of Ruling 9 1 2 work because of her mental limitations. So I don't -- I agree with the Commissioner that the 3 RFC is not inconsistent with her moderate mental impairments 4 and that the ALJ properly relied on the testimony of the 5 vocational expert, the plaintiff, and also did consider the 6 statement from her daughter, although it was cumulative, and 7 all of the evidence in the record in finding that plaintiff 8 retained the ability to work as a price marker, routing clerk, 9 and collator operator. 10 And this finding is substantially supported by the record as a whole. 11 Now, finally, I want to address one point that we 12 talked about somewhat here today, and the plaintiff argues 13 that the ALJ relied too heavily on the daily activities of the 14 claimant when formulating the RFC; and, of course, the ALJ is 15 required to consider the daily activities. 16 that -- I think this really could be characterized as more a 17 Polaski argument that the ALJ didn't properly evaluate her 18 credibility, because, you know, he considered the activities; 19 and so the argument is, well, he gave too much weight to those 20 or didn't consider them appropriately. 21 So it's really And as we all know, the ALJ doesn't have to go 22 through each Polaski factor, but if he's discrediting the 23 claimant's complaints, then he has to -- you know, he needs to 24 state why. 25 credibility based on her own testimony and the objective In here the ALJ did properly evaluate the Excerpt of Ruling 1 10 medical record, her daily activities, the conservative nature 2 of her treatment, and the lack of restrictions set out by 3 treating and consulting physicians. 4 He considered that she cared for her disabled adult 5 daughter, cooked meals, washed dishes, watched television, 6 attended church, used a computer, drove, left the house by 7 herself, did laundry, shopped, played board games, visited 8 family, and used a sewing machine. 9 And he summarized her testimony regarding her daily 10 activities, including her subjective activities of pain, and 11 the third-party statement from her daughter, but he wasn't 12 required to believe all of her assertions, particularly in 13 light of the fact that she was a part-time care giver for her 14 adult disabled child. 15 cited by the Commissioner also supports that. 16 And the Johnson case that I believe was Now, I recognize that she was not doing, you know, 17 caring for her child on an eight hour a day. 18 said, I think it was two hours and forty-five minutes a day, 19 and she said she had to take breaks in between. 20 still substantial activities that are appropriate for the ALJ 21 to consider, especially in conjunction with all of the other 22 activities that she engaged in. 23 It was as she But there's So I think that the ALJ did seriously consider, but 24 explicitly discredited, the subjective complaints, and 25 therefore, there's no reason for me to disturb those findings. Excerpt of Ruling 11 1 And so for all the reasons I've stated, I believe 2 that the -- and I conclude that the ALJ's RFC and 3 determination -- overall determination that the claimant is 4 not disabled, was not disabled during the relevant time 5 period, is supported by substantial evidence on the record as 6 a whole, and so I will affirm the decision. 7 And as I said, I'll issue a judgment consistent with 8 this opinion, and I will attach a transcript of this oral 9 opinion to that judgment. 10 So this concludes the hearing. It will take a few 11 days for me to enter the judgment because, after all, we need 12 to get a transcript, but I will be doing so in the near 13 future. 14 to run from when the judgment itself is entered. 15 And, you know, obviously, all your time limits start All right? So at this time I will terminate the telephone call. 16 Thank you both for participating by phone. 17 that is not to deny you a chance to come to court, but it's 18 really to keep costs down for everyone, and so I appreciate 19 your participating by phone. 20 21 22 23 24 25 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?