Markhart-Collier v. Berryhill

Filing 29

MEMORANDUM AND ORDER re: 28 SOCIAL SECURITY CROSS BRIEF re 19 SOCIAL SECURITY BRIEF filed by Defendant Nancy A. Berryhill, 19 SOCIAL SECURITY BRIEF filed by Plaintiff Betsy Marie Markhart-Collier. IT IS HEREBY ORDERED that that the decision of the Commissioner is affirmed, and plaintiffs complaint is dismissed with prejudice. A separate Judgment is entered herewith. Signed by District Judge Rodney W. Sippel on 9/30/19. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BETSY MARIE
MARKHART-COLLIER
Plaintiff,
v.
ANDREW M. SAUL,1
Commissioner of Social Security,
Defendant.

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MEMORANDUM AND ORDER
Plaintiff Betsy Markhart-Collier brings this action pursuant to 42 U.S.C. §§
405(g), 1383(c)(3), seeking judicial review of the Commissioner’s decision
denying Markhart-Collier’s application for supplemental security income and
disability insurance. Because the Commissioner sufficiently considered plaintiff’s
subjective complaints, and the decision is supported by substantial evidence on the
record as a whole, I will affirm the Commissioner’s decision.
I.

Procedural History
On April 22, 2014, plaintiff filed an application for supplemental security

income pursuant to Title XVI, 42 U.S.C. §§ 1381 et seq., and an application for a
1

Pursuant to Fed. R. Civ. P. 25(d), Commissioner Andrew Saul has been substituted as the
defendant in this case.

period of disability and disability insurance benefits, pursuant to Title II, 42 U.S.C.
§§ 401 et seq. [Tr., ECF Doc. No. 12, at 13] In both applications, plaintiff alleged
November 8, 2013, as the onset date of her disability. [Id.]
Plaintiff’s claims were denied on initial consideration. [Id.] On March 31,
2016, and July 19, 2016, the Administrative Law Judge (“ALJ”) and plaintiff
conducted video hearings. [Id.] The ALJ also determined that the claimant was not
disabled from the date of disability through the date of the ALJ’s decision. [Id.]
Plaintiff’s subsequent appeal to the Appeals Council was denied. [Id.] Plaintiff has
now sought judicial review.
In this action for judicial review, plaintiff contends that the ALJ erred in his
determination of her residual functioning capacity (RFC) by failing to properly
consider her subjective complaints. Plaintiff asks that I reverse the ALJ’s final
decision and remand the matter for further consideration.
II.

Medical Records and Other Evidence Before the ALJ
With respect to the medical records and other evidence of record, I adopt

plaintiff’s recitation of facts set forth in her Statement of Uncontroverted Material
Facts [ECF Doc. No. 19, pp. 1-41] insofar as they are admitted by the
Commissioner. I also adopt the additional facts set forth in the Commissioner’s
Statement of Additional Material Facts [ECF Doc. No. 28-2], as they are unrefuted

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by plaintiff. Additional specific facts will be discussed as needed to address the
parties’ arguments.
III.

Legal Standards
To be entitled to disability benefits, a claimant must prove that she is unable

to perform any substantial gainful activity due to a medically-determinable
physical or mental impairment that would either result in death or which has lasted
or could be expected to last for at least twelve continuous months. 42 U.S.C. §§
423(a)(1)(D), (d)(1)(a). To determine whether claimants are disabled, the
Commissioner evaluates their claims through five sequential steps. 20. C.F.R. §
404.1520; Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (describing the
five-step process).
Steps one through three require that the claimant prove (1) she is not
currently engaged in substantial gainful activity, (2) she suffers from a severe
impairment, and (3) her disability meets or equals a listed impairment. 20 C.F.R. §
404.1520(a)(4)(i)-(iii). If the claimant does not suffer from a listed impairment or
its equivalent, the Commissioner’s analysis proceeds to steps four and five. Step
four requires the Commissioner to consider whether the claimant retains the RFC
to perform her past relevant work (PRW). Id. at § 404.1520(a)(4)(iv). The
claimant bears the burden of demonstrating she is no longer able to return to her
PRW. Pate-Fires, 564 F.3d at 942. If the Commissioner determines the claimant

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cannot return to PRW, the burden shifts to the Commissioner at step five to show
the claimant retains the residual functioning capacity (RFC) to perform other jobs
that exist in significant numbers in the national economy. Id.; 20 C.F.R. §
404.1520(a)(4)(v).
The ALJ is required to evaluate the credibility of a claimant’s testimony,
including the claimant’s subjective complaints of pain, prior to determining her
RFC. Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001). In so doing, the
ALJ is not permitted to ignore the claimant’s testimony even if it is inconsistent
with objective medical evidence. Basinger v. Heckler, 725 F.2d 1166, 1169 (8th
Cir. 1984). After considering the claimant’s testimony, the ALJ may disbelieve it if
it is inconsistent with the record as a whole. Battles v. Sullivan, 902 F.2d 657, 660
(8th Cir. 1990). To properly evaluate the claimant’s subjective complaints, the ALJ
must consider the factors enumerated in Polaski v. Heckler:
[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 duration, frequency, and
intensity of the pain; (3) precipitating and aggravating factors; (4)
dosage, effectiveness and side effects of medication; and (5)
functional restrictions.
739 F.2d 1320, 1322 (8th Cir. 1984). While the ALJ must consider
the Polaski factors, he need not enumerate them specifically. Wildman v. Astrue,
596 F.3d 959, 968 (8th Cir. 2010). When the ALJ explicitly disbelieves the
claimant’s testimony and gives good reasons for his disbelief, a reviewing court
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will typically defer to the ALJ’s finding. Casey v. Astrue, 503 F.3d 687, 696 (8th
Cir. 2007). The ALJ retains the responsibility to develop the record fully and fairly
in the course of the non-adversarial administrative hearing. Hildebrand v.
Barnhart, 302 F.3d 836, 838 (8th Cir. 2002).
In reviewing the ALJ’s denial of Social Security disability benefits, my role
is to determine whether the Commissioner’s findings comply with the relevant
legal requirements and are supported by substantial evidence in the record as a
whole. Pate-Fires, 564 F.3d at 942. “Substantial evidence is less than a
preponderance, but is enough that a reasonable mind would find it adequate to
support the Commissioner’s conclusion.” Id. In determining whether the evidence
is substantial, I must consider evidence that both supports and detracts from the
Commissioner’s decision. Id. As long as substantial evidence supports the
decision, I may not reverse it merely because substantial evidence exists in the
record that would support a contrary outcome or because I would have decided the
case differently. See Johnson v. Astrue, 628 F.3d 991, 992 (8th Cir. 2011). I must
“defer heavily to the findings and conclusions of the Social Security
Administration.” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) (internal
citation omitted).

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IV.

ALJ’s Decision
In his written decision, the ALJ first found that plaintiff met the insured-

status requirements of the Social Security Act through December 31, 2017. [Tr.
15-16] He then found plaintiff had not engaged in substantial gainful activity since
the alleged onset date of the disability, November 8, 2013. [Tr. 16] The ALJ also
concluded plaintiff suffered from the following severe impairments:
residuals of bilateral wrist fractures with subsequent left wrist
arthroscopy with limited debridement and open triangular
fibrocartilage complex repair with excision of ulnar styloid nonunion
and extensor carpil ulnaris (ECU) tenotomy; combination of
abnormalities of the cervical, thoracic, and lumbar spine with lumbar
sprain status post assault and three motor vehicle accidents; chronic
obstructive pulmonary disease and asthma; fibromyalgia; combination
of anxiety with panic disorder and agoraphobia, depression, attention
deficit hyperactivity disorder, chronic pain disorder, and somatization
disorder versus hypochondriasis[].
[Id.] The ALJ also found a number of non-severe impairments. [Id.] He
determined that plaintiff’s combination of severe and non-severe impairments did
not reach the impairment severity contemplated in 20 C.F.R. § 404, Subpt. P, App.
1. [Tr. 17-19].
The ALJ also considered plaintiff’s subjective complaints and found that her
“statements about her conditions, symptoms, and the resultant limitations are less
than persuasive and generally inconsistent with treatment notes.” [Tr. 24] Still,

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the ALJ “accommodated the [plaintiff’s] subjective complaints to the greatest
extent possible when compared to the evidence of record.” [Id.]
The ALJ determined that plaintiff’s RFC enabled her to perform “light work
as defined in 20 CFR 404.1567(b) and 416.967(b),” and he listed a series of tasks
she could perform and the appropriate conditions of her employment. [Tr. 19]
Based on his RFC determination, the ALJ found plaintiff was unable to
perform any past relevant work. [Tr. 28] The ALJ consulted a vocational expert
(VE) to assess whether jobs within the plaintiff’s RFC existed in significant
numbers in the national economy. [Tr. 28-29] The VE identified several such jobs
that plaintiff could perform, including: dining room attendant, retail self-service
store worker, small product assembly, and office cleaning positions. [Tr. 29] The
ALJ therefore determined that plaintiff was not disabled within the meaning of the
Social Security Act. [Tr. 29-30]
V.

Discussion
Plaintiff’s argument focuses on the ALJ’s evaluation of her subjective

description of her condition. She contends the ALJ failed to sufficiently assess the
credibility of her testimony according to the Polaski factors and the rules set forth
in Social Security Ruling (SSR) 96-7p.2 Plaintiff also argues the ALJ drew the

2

SSR 16-3p superseded SSR 96-7p on March 16, 2016. The new ruling eliminates the use of the
term “credibility” from SSA policy and clarifies that subjective symptom evaluation is not an
examination of a claimant’s character. SSR 16-3p was applicable to the ALJ’s decision in this
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wrong credibility inferences in the analysis he did conduct. She cites specific
Polaski factors—her work history and her medication dosage, type, and side
effects—as not supporting the ALJ’s final determination regarding plaintiff’s
credibility and her RFC.
An ALJ may not dismiss a claimant’s subjective complaints solely because
objective medical evidence does not support them; however, he may discount the
complaints if there are inconsistencies in the evidence as a whole. See Goff v.
Barnhart, 421 F.3d 785, 793 (8th Cir. 2005). To evaluate a plaintiff’s credibility,
“the ALJ must consider the Polaski factors.” Wildman v. Astrue, 596 F.3d 959,
968 (8th Cir. 2010). If the ALJ discredits a plaintiff’s subjective complaints, he
must make an express credibility determination explaining why he has done so.
Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000). However, the ALJ is “not
required to discuss methodically each Polaski consideration, so long as he
acknowledged and examined those considerations before discounting [a plaintiff’s]
subjective complaints.” Id.
The ALJ’s determinations regarding plaintiff’s work history and medication
history contain good reasoning and findings based on the record. While plaintiff
focuses on two specific Polaski factors that she contends did not receive sufficient

case, but would not fundamentally alter the ALJ’s analysis or my analysis of this ALJ opinion.
The “regulations on evaluating symptoms remain unchanged.” See Hash v. Berryhill, 2018 WL
4216668, *4 n.2 (E.D. MO. 2018).
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treatment, the ALJ’s opinion also evaluates plaintiff’s credibility in light of other
factors, including plaintiff’s daily activities. [Tr. 28].
Furthermore, the ALJ discusses how his personal observations of plaintiff
during her hearing factor into his credibility determination. [Tr. 24] “Because the
ALJ [is] in a better position to evaluate credibility, [courts] defer to his credibility
determinations as long as they were supported by good reasons and substantial
evidence.” Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006) (citation omitted).
Here, the ALJ’s credibility determinations were supported by good reasons and
substantial evidence. Accordingly, I will defer to his findings.
A. Work History
In the opinion, the ALJ describes plaintiff’s inconsistent work history and
income, including a year without income. [Tr. 26] The opinion correctly cites to
the evidence in the administrative record that documents plaintiff’s earning history.
[Id.] The ALJ reasoned that plaintiff’s inconsistent earning history supported an
inference that factors other than her alleged disabilities have led to the claimant’s
current employment situation. [Id.]
My review of the record confirms the ALJ had substantial evidence to come
to the conclusion he did. A sporadic and varied work history, including evidence
of years with no earnings, may support an inference that there are other reasons
than the alleged disability keeping plaintiff from being gainfully employed. C.f.

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Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993) (observing that a claimant’s
poor work history lessened her credibility).
Plaintiff argues the ALJ drew the wrong inferences from her work history.
She argues that she had steady employment and wages for most of the period
running from 2004 to 2013, the year she alleges she became disabled. She
contends her consistent work history demonstrates her willingness to work.
Plaintiff does not, however, identify evidence in the record that supports her claim
that she was receiving technical training before 2004, and does not provide
evidence that the ALJ was incorrect about her lack of earnings in 2011. Though
plaintiff points to several years with substantial earnings, I will not second-guess
the ALJ’s findings regarding plaintiff’s work history, because it is supported by
substantial evidence from the record as a whole.
B. Medication Use
Plaintiff asserts the ALJ erred in his discussion concerning plaintiff’s
medications. She contends that the ALJ failed to consider evidence demonstrating
that doctors changed and increased the dosage of her pain medications over time.
Plaintiff argues the ALJ should have inferred from that evidence that her condition
steadily decreased over time; that finding would have supported her credibility
according to the Polaski analysis.

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The ALJ considered and discussed the medication evidence in the record.
He explained that he found instances in which plaintiff reported improvement in
her condition when she took her medication as prescribed. [Tr. 26] He also cited
multiple medical reports that plaintiff continues to receive conservative medication
management for her impairments, and that she has not experienced significant
change or worsening in her overall condition. [E.g. Tr. 23] “Impairments that are
controllable or amenable to treatment do not support a finding of disability.”
Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1999); See also Guiliams v.
Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) (“Evidence of effective medication
resulting in relief…may diminish the credibility of claimant’s complaints.”).
The ALJ did not err in his consideration of Plaintiff’s medication history and
its effect on his assessment of her credibility. Although the ALJ did not
specifically grapple with each item of evidence plaintiff cites regarding her
medication dosages increasing over time, the ALJ’s credibility determination and
resulting opinion are ultimately supported by the record as a whole. I will not
disturb the ALJ’s findings even if “substantial evidence would also support a
contrary outcome” on the Polaski factor regarding medication use. Johnson v.
Astrue, 628 F.3d 991, 992 (8th Cir. 2011).

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VI.

Conclusion
When reviewing an adverse decision by the Commissioner, a court’s task is

to determine whether the decision is supported by substantial evidence on the
record as a whole. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001). “Substantial
evidence is defined to include such relevant evidence as a reasonable mind would
find adequate to support the Commissioner’s conclusion.” Id. Where substantial
evidence supports the Commissioner’s decision, this Court may not reverse the
decision merely because substantial evidence exists in the record that would have
supported a contrary outcome, or because another court could have decided the
case differently. Id.; see also Igo v. Colvin, 839 F.3d 724, 728 (8th Cir.
2016); Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011).
For the reasons set out above, substantial evidence supported the ALJ’s
determination that plaintiff was not disabled from the alleged date of disability
through the date of the opinion. I will therefore affirm the decision of the
Commissioner as within a “reasonable zone of choice.” Fentress v. Berryhill, 854
F.3d 1016, 1021 (8th Cir. 2017) (citing Owen v. Astrue, 551 F.3d 792, 798 (8th
Cir. 2008)).

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Accordingly,
IT IS HEREBY ORDERED that that the decision of the Commissioner is
affirmed, and plaintiff’s complaint is dismissed with prejudice.
A separate Judgment is entered herewith.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 30th day of September, 2019.

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