Brooks v. Colvin
MEMORANDUM AND ORDER re: 14 SOCIAL SECURITY BRIEF re 1 Complaint (Social Security), filed by Plaintiff Pamela Brooks, 20 SOCIAL SECURITY REPLY BRIEF filed by Plaintiff Pamela Brooks, 19 SOCIAL SECURITY CROSS BRIEF re 14 SOCIAL SECU RITY BRIEF re 1 Complaint (Social Security), filed by Defendant Carolyn W. Colvin. For the reasons set forth above, the court finds that substantial evidence on the record as a whole supports the Commissioner's decision that Plaintiff is not disabled. Accordingly, IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiff's Complaint is DISMISSED, with prejudice. A separate judgment shall be entered incorporating this Memorandum and Order. Dated this 27th day of September, 2017. Signed by Magistrate Judge Noelle C. Collins on 9/27/17. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Case No. 1:16-cv-00073-NCC
MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of Pamela Brooks (“Plaintiff”) for disability
insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§
401, et seq., and Supplemental Security Income (“SSI”) under Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381, et seq. Plaintiff filed a brief in support of the Complaint (Doc. 14),
Defendant filed a brief in support of the Answer (Doc. 19), and Plaintiff filed a reply brief (Doc.
20). The Parties have consented to the jurisdiction of the undersigned United States Magistrate
Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 7).
I. PROCEDURAL HISTORY
Plaintiff filed her applications for DIB and SSI on August 1, 2012 (Tr. 203-15). Plaintiff
was initially denied on September 28, 2012, and she filed a Request for Hearing before an
Administrative Law Judge (“ALJ”) (Tr. 91-100, 101-02). After a hearing and a subsequent
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. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
supplemental hearing, by decision dated October 17, 2014, the ALJ found Plaintiff not disabled
(Tr. 8-30). On February 5, 2016, the Appeals Council issued a decision denying Plaintiff’s
request for review (Tr. 1-6). As such, the ALJ’s decision stands as the final decision of the
II. DECISION OF THE ALJ
The ALJ determined that Plaintiff has not engaged in substantial gainful activity since
December 16, 2010, the alleged onset date (Tr. 14). The ALJ found Plaintiff has the severe
impairments of disorders of the spine and obesity but that no impairment or combination of
impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (Tr. 14-15). After considering the entire record, the ALJ
determined Plaintiff has the residual functional capacity (“RFC”) to perform a sedentary work
with the following limitations (Tr. 15). Plaintiff can walk or stand 2 hours out of an 8-hour
workday and sit for 6 hours out of an 8-hour workday (Id.). She can occasionally climb stairs,
but never climb ropes, scaffolds or ladders (Id.). She can occasionally balance, stoop, crouch,
and kneel; however, she may never crawl (Id.). She is limited to occasionally pushing and
pulling with the upper extremities, but she is prohibited from pushing and pulling with the lower
extremities (Id.). She should avoid prolonged exposure to temperature extremes, chemicals,
dust, fumes, humidity, wetness, and vibrating machinery (Id.). She should also avoid unprotected
heights and hazardous moving machinery (Id.). Secondary to her reported chronic pain and
potential side effects of medications, she is limited to jobs that do not demand attention to details
or complicated job tasks or instructions (Id.). The ALJ found Plaintiff is unable to perform any
past relevant work, but that there are jobs that exist in significant numbers in the national
economy that she can perform, including document preparer, cutter-paster, and pharmaceutical
processor (Tr. 21-22). Thus, the ALJ concluded that a finding of “not disabled” was appropriate
(Tr. 23). Plaintiff appeals, arguing a lack of substantial evidence to support the Commissioner’s
III. LEGAL STANDARD
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may
be terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.’” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d).
If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is
per se disabled without consideration of the claimant’s age, education, or work history. Id.
Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to
establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step
four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ
will review a claimant’s RFC and the physical and mental demands of the work the claimant has
done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the
Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. Steed, 524 F.3d at 874
n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The
ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v.
Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931
n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate
RFC remains on the claimant, even when the burden of production shifts to the Commissioner at
step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ’s
decision, the decision must be affirmed if it is supported by substantial evidence. Clark v.
Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but
is enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v.
Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox, 495 F.3d at 617. Instead, the district court must simply determine whether the
quantity and quality of evidence is enough so that a reasonable mind might find it adequate to
support the ALJ’s conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of
the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).
Thus, an administrative decision which is supported by substantial evidence is not subject to
reversal merely because substantial evidence may also support an opposite conclusion or because
the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the court is required to review the administrative record as a whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical activity
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions which
fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
In her appeal of the Commissioner’s decision, Plaintiff asserts that the ALJ erred in his
RFC determination because he failed to include a limitation as to Plaintiff’s need to stand and
ambulate with an assistive device despite evidence in the record as a whole indicating that the
assistive device is a medical necessity (Doc. 14 at 12). For the following reasons, the Court finds
that Plaintiff’s argument is without merit, and that the ALJ’s decision is based on substantial
evidence and is consistent with the Regulations and case law.
The Regulations define RFC as “what [the claimant] can do” despite her “physical or
mental limitations.” 20 C.F.R. § 404.1545(a). “When determining whether a claimant can
engage in substantial employment, an ALJ must consider the combination of the claimant's
mental and physical impairments.” Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). “The ALJ
must assess a claimant’s RFC based on all relevant, credible evidence in the record, ‘including
the medical records, observations of treating physicians and others, and an individual’s own
description of [her] limitations.’” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004)
(quoting McKinney, 228 F.3d at 863). See also Myers v. Colvin, 721 F.3d 521, 526 (8th Cir.
2013). To determine a claimant’s RFC, the ALJ must move, analytically, from ascertaining the
true extent of the claimant’s impairments to determining the kind of work the claimant can still
do despite her impairments. Anderson v. Shalala, 51 F.3d. 777, 779 (8th Cir. 1995). “Although
it is the ALJ’s responsibility to determine the claimant’s RFC, the burden is on the claimant to
establish his or her RFC.” Buford v. Colvin, 824 F.3d 793, 796 (8th Cir. 2016) (internal citations
The Court finds that the ALJ properly considered Plaintiff’s need to use an assistive
device and that his decision that an assistive device was not medically necessary and, therefore
not appropriate to include in the RFC determination, is supported by substantial evidence. First,
the ALJ acknowledged that Plaintiff testified that she used and had been prescribed an assistive
device (Tr. 16, 19). Plaintiff testified that she had been using a walker since June of 2011 for
about 60 percent of the time (Tr. 45). She further testified that she uses a cane (Id.). Plaintiff
also testified that both the walker and the cane were prescribed (Tr. 58). Indeed, Plaintiff arrived
to both hearings with a walker (Tr. 44-45, 58). The ALJ also noted that, upon review of the
record, Plaintiff’s surgeons and treating physicians reflect Plaintiff’s use of an assistive device
(Tr. 19). However, as indicated by the ALJ, Plaintiff’s self-reports, even those made to
physicians, are not sufficient to support the necessity of an assistive device. See Johnson v.
Astrue, 816 F. Supp. 2d 752, 773 (W.D. Mo. 2011) (finding plaintiff’s contention that his
physician ordered him to use a cane as an assistive device not supported by the record when the
record only reflected that plaintiff reported to a medical provider that another provider told
plaintiff he needed to use a cane); Hillstrom v. Comm’r of Soc. Sec., No. 3:15-CV-40, 2016 WL
7507789, at *5 (D.N.D. May 24, 2016) (plaintiff’s self-reports did not establish that she
“required the use of any hand-held assistive devices during the relevant time period”). For
example, Dr. Ross D. Andreassen, M.D., a physician at Plaintiff’s pain management clinic,
indicates “patient walks using a walker” but his notes do not state that the walker or any other
assistive device is a necessity (Tr. 441-43). In fact, Plaintiff’s records from the pain management
clinic indicate potential malingering as notes reflect a verbal warning for multiple physicians in
September 2011 and frequent random drug tests (See, e.g., Tr. 443, 455).
Second, the ALJ considered that there is nothing in the record to indicate that the
assistive device was prescribed to Plaintiff (Tr. 19). Plaintiff asserts that the ALJ improperly
discounted the “Certificate of Medical Necessity” (Doc. 14 at 15). The ALJ declined “to find
that this document establishes a medical necessity for an assistive device” (Tr. 20). In so doing,
the ALJ fully examined this document, noting that the electronic file indicates that the document
belongs to Dr. Sonjay Fonn, D.O. (“Dr. Fonn”), Plaintiff’s treating physician, but that it is dated
December 13, 2011 and Dr. Fonn did not assume Plaintiff’s care until October 2013 (Tr. 19).
Indeed, the electronic file is titled, “Certificate of Medical Necessity, dated 12/13/2011, from
Sonjay Fonn, D.O., Midwest Neurosurgeons” (See Doc. 11-2 at 4; Tr. 1447). The ALJ correctly
notes that the document refers to Dr. Brandon Scott, D.O. (“Dr. Scott”), Plaintiff’s neurosurgeon,
as the attending physician (Tr. 19, 1448). However, as the ALJ indicates, the form is signed by
“Debbie Gaines” and the record does not include any identification or credentials for Ms. Gaines
(Tr. 19, 1448). While the ALJ fails to indicate that the form is also signed by Dr. Scott, as the
attending/prescribing physician, the Court finds this to be harmless error. See Byes v. Astrue,
687 F.3d 913, 917 (8th Cir. 2012) (“To show an error was not harmless, [the Plaintiff] must
provide some indication that the ALJ would have decided differently if the error had not
occurred.”). The document itself is not a prescription2 and there is no indication in Dr. Scott’s
records or the record as a whole that a prescription for the device was issued. Toland v. Colvin,
761 F.3d 931, 936 (8th Cir. 2014); Russell v. Astrue, 626 F. Supp. 2d 921, 937 (D. Minn. 2009).
Furthermore, the document indicates that Plaintiff needs to use a cane, not a walker, despite, as
indicated above, Plaintiff’s use of a walker (Tr. 1448).
Third, even if the Court were to construe the Certificate of Medical Necessity as a
prescription, Plaintiff’s need for an assistive device, as noted by the ALJ, is not supported by the
record as a whole. Plaintiff asserts that as time went on, Plaintiff was noted as having an assisted
gait and having increased tenderness of the spine and consistent use of a walker (Doc. 14 at 13
A Certificate of Medical Necessity is required for Medicaid and Medicare reimbursement of
many durable medical equipment services. See 42 U.S.C. § 1395m(j)(2) (defining, in the
Medicare context, a certificate of medical necessity as a “document containing information
required by the carrier . . . to show that an item is reasonable and necessary.”); Mo. Health Net,
Durable Medical Equipment Manual, Section 7.1 Certificate of Medical Necessity, 99-100,
http://manuals.momed.com/collections/collection_dme/print.pdf (last updated May 4, 2017)
(requiring for reimbursement for claims for specific durable medical equipment a Certificate of
Medical Necessity that includes “the medical reason why the item . . . [was] needed.”).
(citing Tr. 441-510)). While this is true, some records do indicate an assisted gait and consistent
use of a walker, as indicated above, such self-reported use is not sufficient and there is
significant evidence in the record of a normal gait and no evidence of motor weakness (See, e.g.,
Tr. 515 (“Motor weakness is not present”); 539, 554, 637, 708, 760, 780, 1502 (in the lower
extremity, “Normal range of motion”); 553 (“Not a fall risk”); 629, 816 (“Patient ambulates
without assistance”); 700 (“Patient is able to ambulate normally”); 1348, 1368 (“Full Range of
Motion”); 1416 (“Normal gait and station”)). To the extent Plaintiff identifies records that
support Plaintiff’s allegation, “[i]f substantial evidence supports the decision, then we may not
reverse, even if inconsistent conclusions may be drawn from the evidence and even if we may
have reached a different outcome.” McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).
Further, the opinion evidence of record does not support Plaintiff’s need to use an
assistive device when standing and walking. In a one-page “Medical statement regarding back
pain for Social Security disability claim” dated January 7, 2014, Dr. Fonn checked a box, one of
three he checked, indicating that Plaintiff is unable to ambulate effectively (Tr. 1422). The ALJ
afforded Dr. Fonn’s opinion “no weight” in part because his opinion was inconsistent with his
own medical records (Tr. 21). Cf. Hill v. Colvin, No. CIV. 13-3078, 2014 WL 6668391, at *4
(W.D. Ark. Nov. 24, 2014) (finding reversible error when the ALJ failed to incorporate
Plaintiff’s “right upper extremity as assistive device limitation” in his RFC determination as the
only physical RFC assessment in the record included the limitation and the ALJ gave this
assessment “great weight”). Of specific note, in a January 21, 2014 treatment note, Dr. Fonn
observed that Plaintiff was able to walk without any assistive device (Tr. 21, 1407). See Hey v.
Colvin, 136 F. Supp. 3d 1021, 1032 (D. Minn. 2015). See also cf. Graham v. Astrue, No. CIV.
10-5144, 2011 WL 3844072, at *3 (W.D. Ark. Aug. 30, 2011) (“As it appears that Plaintiff may
indeed need an assistive device to ambulate; that the ALJ found the only examining physician’s
opinion that addressed whether Plaintiff needed an assistive device was unclear; and that there is
some question as to whether Plaintiff can complete an eight-hour work day, the Court finds
remand is necessary for the ALJ to more fully and fairly develop the record regarding Plaintiff's
physical RFC.”). Instead, the ALJ relied on the opinion of Dr. Ronald DeVere, M.D. (“Dr.
DeVere”), a non-examining state agency neurologist (Tr. 20). Upon a complete review of the
medical record, Dr. DeVere issued a “Medical Opinion” and associated “Medical Source
Statement of Ability to do Work-Related Activities (Physical)” dated February 20, 2014 (Tr.
1436-46). While Dr. DeVere found Plaintiff to have chronic low back and leg pain, he opined
that Plaintiff can stand for 2 hours in an 8 hour work day, walk for 1 hour in an 8 hour work day,
and sit for 6 hours in an 8 hour work day (Tr. 1442). He further opined that Plaintiff does not
require the use of a cane to ambulate (Id.). Additionally, Dr. DeVere addressed Plaintiff’s ability
to reach overhead, finding that Plaintiff could reach overhead frequently (Tr. 1443).
Accordingly, the Court finds that the ALJ’s decision not to include a limitation regarding
an assistive device in his RFC determination to be supported by substantial evidence. Cf. Bays v.
Berryhill, No. 6:16-CV-06031-BAB, 2017 WL 2560017, at *4 (W.D. Ark. June 13, 2017) (“The
ALJ specifically endorsed Plaintiff's need to use an assistive device when standing and walking
but failed to incorporate those findings into his RFC determination.”). See also Tindell v.
Barnhart, 444 F.3d 1002, 1007 (8th Cir. 2006) (“The ALJ included all of Tindell’s credible
limitations in his RFC assessment, and the ALJ’s conclusions are supported by substantial
evidence in the record.”). Further, the Court finds that ALJ’s RFC finding is based on
substantial evidence and that it is consistent with the Regulations and case law.
Finally, to the extent Plaintiff asserts that the ALJ failed to properly include Plaintiff’s
use of an assistive device in his hypothetical to the vocational expert, an ALJ is required to
include only a claimant’s credible limitations. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir.
2011) (“The ALJ’s hypothetical question to the vocational expert needs to include only those
impairments that the ALJ finds are substantially supported by the record as a whole.”) (quoting
Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)); Wildman v. Astrue, 596 F.3d 959, 969
(8th Cir. 2010) (“[T]he ALJ was not obligated to include limitations from opinions he properly
disregarded.”); Guilliams v. Barnhart, 393 F.3d 789, 804 (8th Cir. 2005) (holding that a proper
hypothetical sets forth impairments supported by substantial evidence and accepted as true by the
ALJ); Gilbert v. Apfel, 175 F.3d 602, 604 (8th Cir. 1999) (“In posing hypothetical questions to a
vocational expert, an ALJ must include all impairments he finds supported by the administrative
record.”). As addressed in more detail above, the Court finds the ALJ’s decision to exclude
Plaintiff’s use of an assistive device from his RFC determination to be supported by substantive
evidence. Further, the hypothetical which the ALJ posed to the VE captured the concrete
consequences of Plaintiff’s limitations and included all of Plaintiff's impairments as supported by
substantial evidence in the record (See Tr. 355-56). Because there was work which Plaintiff
could perform, based on the testimony of the VE and her independent review of the DOT, the
ALJ found Plaintiff was not disabled. Martise, 641 F.3d at 927 (“Based on our previous
conclusion ... that ‘the ALJ’s findings of [the claimant's] RFC are supported by substantial
evidence,’ we hold that ‘[t]he hypothetical question was therefore proper, and the VE’s answer
constituted substantial evidence supporting the Commissioner’s denial of benefits.’ ”) (quoting
Lacroix, 465 F.3d at 889). As such, the court finds that the ALJ posed a proper hypothetical to
the VE; that the ALJ properly relied on the VE’s testimony that there was work existing in
significant numbers which Plaintiff could perform; and that the ALJ’s finding that Plaintiff is not
disabled is based on substantial evidence and is consistent with the Regulations and case law.
For the reasons set forth above, the court finds that substantial evidence on the record as a
whole supports the Commissioner’s decision that Plaintiff is not disabled.
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED, with prejudice.
A separate judgment shall be entered incorporating this Memorandum and Order.
Dated this 27th day of September, 2017.
/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE
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