Jones v. Colvin

Filing 16

MEMORANDUM OPINION..IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is Affirmed. Signed by District Judge Henry Edward Autrey on 2/28/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
REBECCA ANNE JONES,
Plaintiff,
v.
NANCY A. BERRYHILL1,
Acting Commissioner of
Social Security Administration,
Defendant.

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No. 1:15CV192 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
On July 9, 2014, Administrative Law Judge Brad Davis conducted a video
hearing. Plaintiff and the Vocational Expert both appeared. Plaintiff appeared in
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.

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,
the Vocational Expert concluded there were jobs available for Plaintiff as a press
feeder, cashier II, food preparation in fast food, housekeeper.

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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 issues in this case are; (1) whether Plaintiff medically equaled a listed
impairment; (2) whether the ALJ properly evaluated her credibility; (3) whether
Plaintiff’s non-exertional limitations precluded light work.
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
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
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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
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.
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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
significant number of jobs within the national economy. Id.; Brock v. Astrue, 674
F.3d 1062, 1064 (8th Cir.2012).

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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
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.
Although the ALJ bears the primary responsibility for assessing a claimant's
RFC based on all relevant evidence, a claimant's RFC is a medical question.
Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.2001) (citing Lauer v. Apfel, 245
F.3d 700, 704 (8th Cir.2001)). Therefore, an ALJ is required to consider at least
some supporting evidence from a medical professional. See Lauer, 245 F.3d at 704
(some medical evidence must support the determination of the claimant's RFC);
Casey v. Astrue, 503 F .3d 687, 697 (the RFC is ultimately a medical question that
must find at least some support in the medical evidence in the record). An RFC
determination made by an ALJ will be upheld if it is supported by substantial
evidence in the record. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.2006).
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him to reject the claimant's complaints.
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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 November 28, 2012 through the last insured
date of June 30, 2014. The ALJ found at Step Two that Plaintiff had the severe
impairments of coronary artery disease-status post triple coronary artery bypass
grafting and diabetes mellitus with neuropathy.
At Step Three, the ALJ found that Plaintiff did not suffer from an
impairment or combination of impairments that meets or medically equal the

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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, except Plaintiff cannot work
around hazards such as unprotected heights or dangerous moving machinery; she
can only occasionally stoop, kneel, crouch, and crawl; and she can occasionally
climb stairs, ramps, ladders and scaffolds.
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
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
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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)).
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
I. Did the ALJ err in concluding Plaintiff impairments did not
Medically Equal a Listed Impairment?

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Plaintiff asserts the ALJ did improperly concluded Plaintiff‘s combined
impairments did not medically equal a listed impairment. A review of the record,
and the finding of the ALJ relating to the record, finds no support for this assertion.
A review of the record as to Plaintiff’s heart disease reveals a failure to meet
the matters set forth in Listing § 4.04(A) and Listing § 4.04(B). There is no
evidence of a sign or symptom limited exercise tolerance test demonstrating
manifestations at a workload equivalent to 5 metabolic equivalent of task units
(METs) or less. Likewise there is no evidence of three separate ischemic episodes,
each requiring revascularization or not amenable to revascularization within a
consecutive 12-month period. Evidence was likewise deficient on whether a
physician ever indicated that performance of exercise tolerance testing would
present a significant risk to the individual or that she had very serious limitations
of her ability to independently initiate, sustain, or complete activities of daily
living as required by Listing § 4.04(C). Plaintiff did have a consultative physical
examination on April 23, 2013, with Chul Kim, M.D. The opinion then was
Plaintiff’s level of functioning was class II under the New York Heart
Association’s (NYHA) heart failure classification system (Tr. 293). A class II
rating indicates only “[s]light limitation of physical activity.” American Heart
Association, Classes of Heart Failure

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Dr. Kim also found 5/5 motor strength in Plaintiff’s arms and legs, intact
grip strength and finger dexterity, a stable gait, intact ability to squat, walk on her
heels and toes, and get on an off an examination table without assistance. Plaintiff
also reported that she could lift her 30 pound grandchild and walk for 10 minutes
with no assistance. Thus the evidence in the record is contrary to any support of a
finding that Plaintiff met Listing § 11.14. This listing requires peripheral
neuropathies with significant and persistent disorganization of motor function in
two extremities, resulting in sustained disturbance of gross and dexterous
movements, or gait and station. Id. at § 11.14 (referring to § 11.04(B)).
II. Did the ALJ Properly Evaluate Plaintiff’s Credibility?
Plaintiff also asserts that the ALJ erred in finding her subjective complaints
less than fully credible. The ALJ noted the objective medical evidence in the
record was inconsistent with Plaintiff’s reports of disabling limitations. Plaintiff
experienced triple bypass surgery in November 2012, but the medical evidence
indicates that she recovered from surgery. At her first follow-up visit two weeks
after surgery, she was walking on a daily basis and reported no chest pain,
shortness of breath, or wound problems (Tr. 268). Her incisions were healing
nicely and her cardiac examination was normal (Tr. 268). Her only complaints
were occasional heartburn, which was relieved with over the counter medication,
and poor appetite and mild agitation, which she attributed to the fact that she had
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recently stopped smoking. The record discloses that at her consultative
examination in April 2013, she had no significant limitations in any of her
extremities, her gait was stable, and she was able to walk on her heels and toes.
The only positive findings were 2 plus edema in her left leg and ankle, which was
the result of her venous harvest for her bypass surgery, and a moderate decrease in
sensation for pain and cold over her left lower leg (Tr. 292). There was no medical
evidence supporting Plaintiff’s testimony at the hearing that she experienced
numbness in her hands from neuropathy.
The Eighth Circuit has long recognized that, as the trier of fact, the ALJ is
in the best position to evaluate the credibility of a claimant’s subjective complaints.
See Milam, 794 F.3d at 984 (“If the ALJ discredits a claimant’s credibility and
gives a good reason for doing so, we will defer to his judgment even if every factor
set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), is not
explicitly discussed.”). Thus, the ALJ’s credibility finding is entitled to particular
deference. See Turpin v. Colvin, 750 F.3d 989, 993 (8th Cir. 2014)(“We defer to
the ALJ's evaluation of Turpin’s credibility provided that this determination is
supported by ‘good reasons and substantial evidence.’”). Here, the ALJ made a
proper credibility determination.
In addition, the ALJ observed that Plaintiff’s daily activities were
inconsistent with her allegations of disability. Review of the transcript, record
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evidence, and decision of the ALJ yields a conclusion wholly contrary to Plaintiff’s
position.
III. Did the ALJ Properly Determine Plaintiff Could Perform Light
Work?
Plaintiff finally asserts that her impairments, including diabetic neuropathy
and lower extremity edema resulted in non-exertional limitations that would
prevent her from performing light work.

The record here substantially supports the ALJ’s RFC determination.
Plaintiff alleges that she would have had additional limitations of her RFC due
to her edema, neuropathy, shortness of breath with exertion and fatigue. But no
physician of record ever indicated that she had limitations greater than those
included in the ALJ’s RFC determination. The ALJ’s RFC was generally
consistent with the opinion of John Marshall Jung, M.D., who reviewed the
medical evidence at the initial stage of Plaintiff’s claim (Tr. 48-51). It was also
consistent with the findings of Dr. Kim, who examined Plaintiff in 2013, and
found that she had intact range of motion and full strength in all of her
extremities and a stable gait, despite her edema and moderately decreased
sensation in her left leg (Tr. 292).
The Plaintiff bears the burden of proving disability and providing medical
evidence regarding the existence and severity of an impairment. See Kamann v.
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Colvin, 721 F.3d 945, 950 (8th Cir. 2013). The medical record, including the
findings of consultative examination ordered by the agency, did not support the
existence of additional limitations that had to be included in the ALJ’s RFC
determination.
In addition, on the issue of the non-exertional limitations, the ALJ
properly cited a number of factors and concluded that Plaintiff’s subjective
complaints were not fully credible (Tr. 17-18). A hypothetical is sufficient if it
includes the impairments supported by substantial evidence and found credible
by the ALJ. See Blackburn v. Colvin, 761 F.3d 853, 860-61 (8th Cir. 2014).
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,
IT IS HEREBY ORDERED that the decision of the Commissioner of
Social Security is Affirmed.

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A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 28th day of February, 2017.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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