Lampley v. Colvin

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 Edward Autrey on 3/8/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

DEBRA LAMPLEY,
Plaintiff,
v.
NANCY A. BERRYHILL1,
Acting Commissioner of
Social Security Administration,
Defendant.

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No. 1:15CV183 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review
under 42 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff’s
application for disability insurance benefits and supplemental security income
under Titles II and XVI of the Social Security Act (Act), 42 U.S.C. §§ 401, et seq.
and 1381,et seq. For the reasons set forth below, the Court will affirm the
Commissioner's denial of Plaintiff's applications.
Facts and Background

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit.

On July 9, 2014, Administrative Law Judge Brad Davis conducted a video
hearing. Plaintiff and the Vocational Expert both appeared. Plaintiff appeared in
Cape Girardeau, Missouri. The Administrative Law Judge presided over the
hearing from St. Louis, Missouri. Plaintiff was born on March 20, 1960. She was
54years old at the time of the hearing. Plaintiff did not complete high school and
she does not have a GED. Her highest level of completion is the 11th grade.
Plaintiff testified that she had a massive heart attack on November 28, 2012
and that she was not employed at the time. Plaintiff also testified that she gets
short of breath at times and is easily fatigued; has diabetes and associated
neuropathy; occasionally suffers from blurry vision; suffers from acid reflux.
Plaintiff testified, on examination by the ALJ, that when she gets up in the
morning she makes breakfast for herself and her husband and tries to clean up.
Afterwards she takes a rest break and watches television. She stated she gets very
fatigued and has to work in intervals. She does not drive very frequently and has a
friend help her with grocery shopping.
The ALJ also secured testimony of Dr. Thomas Upton, a Vocational Expert.
Dr. Upton testified and classified the past work experience of the Plaintiff in
relation to the Dictionary of Occupational Titles. Based upon all of those
considerations and the stated hypotheticals of the ALJ, including stated limitations,

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the Vocational Expert concluded there were jobs available for Plaintiff as a press
feeder, cashier II, food preparation in fast food, housekeeper.
The ALJ determined that Plaintiff was not entitled to a finding of disabled.
The Appeals Council denied Plaintiff’s request for review on August 27, 2015. The
decision of the ALJ is now the final decision for review by this court.
Statement of Issues
The issues in a Social Security case are whether the final decision of the
Commissioner is consistent with the Social Security Act, regulations, and
applicable case law, and whether the findings of fact by the ALJ are supported by
substantial evidence on the record as a whole. Here the Plaintiff asserts the
specific issue in this case is whether substantial evidence in the record supports the
ALJ’s evaluation of Plaintiff’s subjective complaints and the medical opinion
evidence.
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
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
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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
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
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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.
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

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significant number of jobs within the national economy. Id.; Brock v. Astrue, 674
F.3d 1062, 1064 (8th Cir.2012).
RFC
A claimant's Residual Functional Capacity (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, 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
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evidence presented relating to subjective complaints, including the claimant's prior
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.
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).

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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 burden of persuasion to prove
disability and demonstrate RFC remains on the claimant. See Steed v. Astrue, 524
F.3d 872, 876 (8th Cir. 2008).
ALJ Decision
The ALJ here utilized the five-step analysis as required in these cases. The
ALJ determined at Step One that Plaintiff had not engaged in substantial gainful
employment from the onset date of May 13, 2012. The ALJ found at Step Two
that Plaintiff had the severe impairments of gastroesophageal reflux disease
(GERD), stenosis of the celiac artery, degenerative disc disease of the lumbar
spine, and chronic obstructive pulmonary disease (COPD).

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At Step Three, the ALJ found that Plaintiff did not suffer from an
impairment or combination of impairments that meets or medically equal the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (404.1520(d), 404.1525, 404.1526).
As required, prior to Step Four, the ALJ determined that Plaintiff had the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) in that she can lift and carry 20 pounds occasionally and 10 pounds
frequently. Petitioner can stand and walk for 6 hours of an 8-hour day and sit for 6
hours of an 8-hour day. She can occasionally climb stairs, but never climb ladders,
ropes, or scaffolds. Petitioner is able to frequently balance as well as occasionally
stoop, crouch, kneel, and crawl. Claimant must, however, avoid prolonged
exposure to temperature extremes, chemicals, fumes, dusts, noxious odors,
humidity, and wetness. She must also avoid unprotected heights, and hazardous
moving machinery. Lastly the ALJ found Petitioner is limited to jobs that do not
demand attention to detail or complicated job tasks or instructions.
At Step Four it was the finding of the ALJ that Plaintiff was not capable of
performing any past relevant work.
Step Five the ALJ concluded that Plaintiff was not under a disability.
Judicial Review Standard

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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 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)).

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Courts 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). The Eighth
Circuit has repeatedly held that a court should “defer heavily to the findings and
conclusions” of the Social Security Administration. Hurd v. Astrue, 621 F.3d 734,
738 (8th Cir. 2010); Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001).
Discussion
A. Was there Substantial Evidence to Support the ALJ’s Evaluation of
Plaintiff’s Subjective Complaints.
Plaintiff asserts the ALJ did not properly evaluate her credibility regarding
her subjective complaints. A review of the record, and the finding of the ALJ
relating to the record, finds this assertion woefully unsupported.
Plaintiff alleged that she could not work due to a number of conditions,
including back pain, osteoporosis, arthritis, carpal tunnel syndrome, depression,
anxiety, neck pain, shoulder pain, irritable bowel syndrome, Barrett’s esophagus,
and high blood pressure. At the hearing, Plaintiff testified to numbness in her
hands and difficulty bending or standing due to back pain. She stated that she
relieved her pain by lying down and alternating ice and heat. Plaintiff estimated
that she could stand for an hour at a time and sit for 30 minutes at a time.

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The ALJ found that the statements of Plaintiff regarding her condition and
consequences of same were inconsistent with the record as a whole. The
determination of whether one is disabled considering all symptoms, including pain,
and the extent to which the symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence is within the role and
function of the ALJ. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
The objective medical evidence, or lack thereof, is an important factor to
consider in evaluating subjective complaints. Objective medical evidence is a
useful indicator in making reasonable conclusions about the intensity and
persistence of a claimant’s symptoms and the effect those symptoms may have on
a claimant’s ability to work. See 20 C.F.R. § 404.1529(c)(2). Lack of objective
medical evidence is a factor an ALJ may consider. Forte v. Barnhart, 377 F.3d
892, 895 (8th Cir. 2004)(citations omitted). The ALJ noted that an x-ray of
Plaintiff’s lumbar spine in December 2012, showed degenerative joint disease of
the lumbar spine with preserved disc space, but the record contained no MRI scans
of Plaintiff’s lumbar spine or any other objective diagnostic evidence that would
support the severity of pain asserted by Plaintiff.
Plaintiff complained of problems with her back during a visit to her primary
care provider, Bennie N. Till, M.D., in November 2011, but a physical examination
was entirely unremarkable. Plaintiff complained of some low back tenderness and
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muscle tightness due to heavy lifting at work, but she had no focal deficits, normal
coordination, and normal muscle strength and tone (Tr. 20, 297-99, 311, 317-18,
320-21). In September 2012, Plaintiff complained of diffuse joint pain, but she
had no edema in her extremities, normal gait and posture, no focal deficits, normal
reflexes, normal coordination, and normal muscle strength and tone. The ALJ
correctly considered and concluded that the clinical examination findings did not
reveal significant symptoms consistent with Plaintiff’s alleged limitations.
The record reflects that in October 2012, Plaintiff reported that she was
applying for disability and she rated her back pain an 8 on a scale of 1 to 10.
Physical examination revealed no neurological deficits. An exam a month later
was normal.
Early in 2013, specifically in January, the record reviewed by the court
reflects that Dr. Till performed a detailed range of motion examination, which
revealed a normal posture and gait. Dr. Till examined Plaintiff on a number of
occasions and although Plaintiff rated her pain a 7 or 8 on the pain scale, the
clinical signs and findings failed to support the intensity of back pain and related
symptoms alleged, supporting the conclusions by the ALJ.
The objective evidence in the record did not support so many of the
subjective complaints of the Plaintiff. She complained of disabling pain, but only
took pain medications and did not follow through on recommendations for pain
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management. The record reflects Plaintiff did not avail herself of other
conservative measures of pain relief such as physical therapy, aqua therapy,
chiropractic manipulations, or acupuncture. “If an impairment can be controlled
by treatment or medication, it cannot be considered disabling.” Brown v. Astrue,
611 F.3d 941, 955 (8th Cir. 2010) (quoting Brace v. Astrue, 578 F.3d 882, 885 (8th
Cir. 2009)). The ALJ appropriately found that Plaintiff’s limited efforts to relieve
her allegedly disabling back pain further detract from the credibility of her
subjective complaints.
The ALJ considered Plaintiff’s complaints of shortness of breath with
walking (Tr. 21, 43). The ALJ acknowledged that Plaintiff had been diagnosed
and treated for COPD, but repeated chest x-rays showed no evidence of acute
cardiopulmonary disease (Tr. 21, 285, 293, 303, 312). Spirometry testing in
November 2012, revealed moderate airway obstruction and no improvement with
bronchodilators (Tr. 21, 338). Yet, Plaintiff did not require frequent physician
intervention for exacerbations in shortness of breath, and she did not seek
treatment with a pulmonologist or other respiratory specialist or require emergency
room treatment or urgent care treatment for acute exacerbations in her respiratory
symptoms (Tr. 21). Plaintiff complained of shortness of breath but continued to
smoke cigarettes.

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Plaintiff complained of severe stomach pain that incapacitated her for 2 to 3
days at a time. The medical evidence disclosed a non-tender abdomen with positive
bowel sounds. Plaintiff even reported that her pain was relatively well controlled
with only two episodes of abdominal pain between January 2013, and March 2013.
The medical record indicated that Plaintiff was doing well with treatment (Tr. 22,
39-40, 50). The ALJ as a consequence found her credibility less than fully
credible. Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007) (“An ALJ… may
disbelieve subjective reports because of inherent inconsistencies or other
circumstances.”).
The ALJ considered the nature and extent of Plaintiff’s activities of daily
living in assessing her subjective complaints (Tr. 22). See 20 C.F.R. §
404.1529(c)(3)(i). In a Function Report, Plaintiff indicated that she was
independent in personal care (Tr. 190). She stated she could prepare full meals up
to four times a week (Tr. 22, 191). She also cleaned and did laundry with help
from her son in carrying the laundry baskets (Tr. 22, 191). Plaintiff also reported
that she shopped for groceries three to four times a week (Tr. 22, 192). At the
hearing, Plaintiff testified she continued to do most of her own activities of daily
living in the home, including shopping and driving, although her son assisted when
possible (Tr. 22, 46-47). Overall, the ALJ found Plaintiff’s reported activities of
daily living inconsistent with her allegations of debilitating pain (Tr. 22). See
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McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (reasons for discounting
credibility were supported by substantial evidence when, among other factors,
Plaintiff “was not unduly restricted in his daily activities, which included the
ability to perform some cooking, take care of his dogs, use a computer, drive with
a neck brace, and shop for groceries with the use of an electric cart.”).
The ALJ properly considered Plaintiff’s alleged symptoms and pain and
substantial evidence supported the credibility finding. Holley v. Massanari, 253
F.3d 1088, 1091 (8th Cir. 2001) (“As long as substantial evidence in the record
supports the Commissioner’s decision, [the court] we may not reverse it either
because substantial evidence exists in the record that would have supported a
contrary outcome or because we would have decided the case differently.”).
B. Was There Substantial Evidence to Support the ALJ Evaluation of
Medical Opinion Evidence?
In order to formulate the RFC the ALJ considered and discussed the
opinions of Plaintiff’s primary care provider, Dr. Till; the opinions of
cardiovascular surgeon, Stanley Ziomek, M.D.; and the opinions of the nonexamining state agency reviewing physician, Anne Winkler, M.D. In this regard
the ALJ found that the doctors’ opinions were not supported by the record as a
whole (Tr. 23-24). 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
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to discount the opinion.”). The ALJ also found that opinions of an inability to
work were not supported by the limited medical treatment, including the notable
absence of any emergency room visits for acute exacerbations in shortness of
breath or abdominal pain (Tr. 24).
Dr. Till’s treatment record documented vague complaints of joint pain, but
the physical examinations failed to reveal any focal deficits, abnormal gait,
abnormal muscle strength and tone. Dr. Ziomek’s records indicated that Plaintiff’s
epigastric pain was mild and episodic by her own report as well as providing
opinions that were vague and conclusory, failing to identify any functional
restrictions. A treating source’s opinion deserves no greater respect than any other
physician’s opinion when it consists of nothing more than vague, conclusory
statements. See Toland v. Colvin, 761 F.3d 931, 936 (8th Cir. 2014).
The ALJ also found that the doctor’s opinions were not consistent with
Plaintiff’s documented activities of daily living (Tr. 23). The ALJ may discount
opinions of physical limitations greater than Plaintiff actually exhibited in her daily
life. See Turpin v. Colvin, 750 F.3d 989, 994 (8th Cir. 2014) (ALJ properly
discounted opinion where it conflicted with the medical records, the testimony of a
medical expert, and Plaintiff’s account of her daily activities).
Plaintiff argues that the ALJ erred in relying on the opinion of Dr. Winkler,
a non-examining, non-treating source. Pursuant to the Commissioner’s rules and
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regulations, a state agency medical consultant is a highly qualified physician
whose expert opinions cannot be ignored. SSR 96–6P, 1996 WL 374180, *2 (July
2, 1996). See also Toland v. Colvin, 761 F.3d 931, 937 (8th Cir. 2014). In
appropriate circumstance, an ALJ may give opinions of non-examining medical
experts greater weight than the opinions of treating or examining sources. See
Ponder v. Colvin, 770 F.3d 1190, 1195 (8th Cir. 2014). Here, Dr. Winkler’s
opinion was consistent with the clinical signs and findings generally showing intact
neurological functioning, clear lungs, and minimal epigastric pain.
The ALJ, without question, considered all the evidence in formulating
Plaintiff’s RFC and articulated sound reasons for discounting the medical source
opinions and subjective complaints that were not consistent with the record as a
whole. Each of the ALJ’s findings and conclusions contain a specific basis for
same. The ALJ carefully considered all of the evidence, including Plaintiff’s
testimony of what activities she was capable of performing on a daily basis.
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.

Perkins v. Astrue, 648 F.3d 892, 900 (8th Cir.2011); Dunahoo v. Apfel, 241 F.3d
1033, 1038 (8th Cir. 2001).
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 8th day of March, 2017.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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