Dooley v. Colvin

Filing 15

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is Affirmed. Signed by District Judge Henry Edward Autrey on 3/21/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LARRY M. DOOLEY,
Plaintiff,
v.
NANCY A. BERRYHILL1,
Acting Commissioner of
Social Security Administration,
Defendant.

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No. 1:15CV236 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 supplemental security income under Title XVI of the Social
Security Act (Act), 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 April 17, 2014, Administrative Law Judge David K. Fromme conducted
a video hearing from Springfield, Missouri. Plaintiff appeared in West Plains,
Missouri and the Vocational Expert, Teppe Hodgson, appeared as well.
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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.

Plaintiff resided in a single family house located in Winona, Missouri at the
time of the hearing. Plaintiff noted that his girlfriend lived with him on occasion.
Plaintiff was born on March 3, 1971. He was 43years old at the time of the hearing.
Plaintiff completed high school.
Plaintiff has prior work experience with Briggs and Stratton as a metal die
castor for about eight or ten months. He also has work experience at Timber
Industries treating lumber for about three or four months. Plaintiff testified he has
welding experience as a MIG welder from building farm equipment and trailers.
His last work experience, in 2004 or 2005, was that of a painter for a company
called SEI.
On further examination by the ALJ the Plaintiff testified, that he has to use a
cane in walking distances greater than 10 feet or so. Further there was testimony
relating to limiting back pain. Plaintiff stated the back pain prevents him from
bending and putting on shoes and that it radiated through his hip to his right leg.
Plaintiff also testified to having uncontrolled diabetes which causes his feet and
ankles to burn and hurt all the time.
The ALJ also heard testimony that Plaintiff can lift a gallon of milk, but not
for longer than two and one half hours out of an eight-hour day. There was also
testimony that he has difficulty concentrating about 75% of the time. Plaintiff also
takes medication for depression and has difficulty interacting with other people.
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There was testimony from Dr. Hodgson, the Vocational Expert. Dr.
Hodgson 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 at the sedentary work level
available for Plaintiff as a reel assembler, charge account clerk, and having a cane
would not affect the viability of those jobs. The Vocational Expert also testified
that it was her opinion that if Plaintiff had to use the cane then standing upright
would eliminate unskilled sedentary work.
The ALJ determined that Plaintiff was not entitled to a finding of disabled.
The Appeals Council denied Plaintiff’s request for review on October 28, 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 supports the ALJ’s RFC
finding.

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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
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
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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.
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
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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).
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
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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
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
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(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.
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
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employment from the application date of January 14, 2013. The ALJ found at Step
Two that Plaintiff had the severe impairments of obesity; edema; diabetes with
peripheral neuropathy; musculoskeletal disorders described as degenerative
changes of the lumbar spine with facet arthropathy.
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 (416.920(d), 404.1525, 404.1526).
As required, prior to Step Four, the ALJ determined that Plaintiff had the
residual functional capacity to perform sedentary work, except Plaintiff is able to
stand and walk 2 hours per day; sit 6 hours per day; is able to lift 10 pounds
occasionally, less than 10 frequently; is able to occasionally bend, stoop, squat;
never kneel, crouch, or crawl; occasionally climb stairs and ramps; must avoid
climbing ladders or working at heights or around hazardous unprotected moving
equipment; avoid extreme temperatures; avoid extreme fumes, poor ventilation,
dust; avoid extreme vibration.
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
I. Is There Substantial Evidence in Support of the ALJ’s RFC Finding?
Plaintiff asserts the ALJ did not properly assess his RFC. Plaintiff puts forth
the argument that the record as a whole puts forth a more limited RFC. An entire
review of the record and the decision of the ALJ establishes Plaintiff has not
established an error in the ALJ’s analysis that requires remand. See Goff v.
Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative decision is not
subject to reversal simply because some evidence may support the opposite
conclusion.”). “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.” Holley v.
Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001).

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A review of the record demonstrates the objective medical evidence was
inconsistent with Plaintiff’s allegations of disabling back pain and limitations
noted by the ALJ. The ALJ acknowledged that an MRI scan of the lumbar spine
showed degenerative disc disease but the symptoms were effectively treated with
radiofrequency ablation treatments and his medication regimen. At the onset of the
relevant period in this case Plaintiff rated his pain a 2 out of 10. Evidence that a
claimant’s impairments are well controlled with medication precludes a finding of
disability. Perkins v. Astrue, 648 F.3d 892, 901 (8th Cir. 2011) (citing Brown v.
Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (“If an impairment can be controlled by
treatment or medication, it cannot be considered disabling.”).
The ALJ reviewed the medical history of Plaintiff’s diabetes claim and noted
that Plaintiff engaged in infrequent treatment and sometimes was not in
compliance with the recommendations of his doctor. Doctors recommended that
Plaintiff have special shoe fitted or orthotics after foot surgery for foot ulcers. He
failed to follow through on the recommended treatment. See Guilliams v.
Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) (“A failure to follow a recommended
course of treatment also weighs against a claimant’s credibility.”).
The ALJ reviewed and noted the objective medical evidence relating to
Plaintiff’s medical claim. Plaintiff testified about the necessity to use a cane and
about edema. The records did not portray a need for a cane or that Plaintiff walked
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with an abnormal gait. In fact, the records of February 2013 and September 2013
demonstrated that his gait and station were normal.
A clinical nurse practitioner, Ms. Denton, had opined contrary to evidence in
the medical records. The ALJ, as noted, gave little weight to this opinion. The law
does not impose a requirement that the ALJ rely solely on opinion evidence in
support of an RFC determination. See Martise v. Astrue, 641 F.3d 909, 927 (8th
Cir. 2011) (“[T]he ALJ is not required to rely entirely on a particular physician’s
opinion or choose between the opinions [of] any of the claimant’s physicians.”).
Rather, an ALJ has the duty to formulate the RFC based on all of the relevant,
credible evidence of record. See Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir.
2012) (“Even though the RFC assessment draws from medical sources for support,
it is ultimately an administrative determination reserved to the Commissioner.”
(quoting Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007)). The ALJ in this case
properly discussed the medical evidence and demonstrated how it was inconsistent
with Plaintiff’s allegations of disabling limitations.
Each of the ALJ’s findings and conclusions contain a specific basis for
same. The ALJ carefully considered all of the evidence.
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.

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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.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 21st day of March, 2017.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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