Smith v. Saul

Filing 31

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the relief requested in Plaintiff's Complaint and Brief in Support of Complaint is DENIED. (Docs. 1, 27.)IT IS FURTHER ORDERED that the decision of the Commissioner is AFFIRMED. Signed by Magistrate Judge Nannette A. Baker on 9/16/2022. (JMC)

Case: 1:20-cv-00228-NAB Doc. #: 31 Filed: 09/16/22 Page: 1 of 9 PageID #: 946

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
AUDUMN DESHEA SMITH,
Plaintiff,
v.
KILOLO KIJAKAZI 1,
Commissioner of Social Security,
Defendant.

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Case No. 1:20-CV-228 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Audumn Deshea Smith’s appeal regarding the
denial of Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C.
§§ 401 et seq., and for Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381, et seq. (the “Act”). The parties have consented to the exercise of
authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc.
18.) The Court has reviewed the parties’ briefs and the entire administrative record, including the
transcript and medical evidence. Because there is substantial evidence to support the decision
denying benefits, the Court will affirm the Commissioner’s denial of Smith’s application.
I.

Background
On December 7, 2017, Smith applied for DIB and SSI, alleging that she had been unable

to work due to disability since January 23, 2017. (Tr. 15, 225.) Smith alleged disability due to

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 43(c)(2) of
the Federal Rules of Appellate Procedure, Kilolo Kijakazi should be substituted, therefore, for Andrew Saul as the
defendant in this suit. No further action need 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).

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depression, anxiety, numerous injuries from an auto accident, concussion, problems with right
rotator cuff, nerve damage in back, back and neck pain, and torn ACL and left knee problems. (Tr.
224.) Her application was initially denied and she filed a Request for Hearing by Administrative
Law Judge (ALJ). (Tr. 108, 109. 118.) On November 7, 2019, the ALJ held a hearing on Smith’s
claim. (Tr. 35-73.) Smith was represented by counsel at the hearing, and an impartial vocational
expert testified. Id.
In a decision issued on February 27, 2020, the ALJ found Smith was not disabled as defined
in the Act from the alleged onset date through the date of the decision. (Tr. 29.) On March 23,
2020, Smith filed a Request for Review of Hearing Decision with the Social Security
Administration’s (SSA) Appeals Council. (Tr. 187-89.) On September 25, 2020, the Appeals
Council denied Smith’s request for review, and adopted the ALJ’s decision in full. (Tr. 1-3.)
II.

Standard for Determining Disability Under the Act
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 12 months.” 42 U.S.C. § 423(d)(1)(A). The impairment must be
“of such severity that he 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. §§ 423(d)(2)(A); 1382c(a)(3)(B).
The Social Security Administration (“SSA”) uses a five-step analysis to determine whether
a claimant seeking disability benefits is in fact disabled. 20 C.F.R. § 404.1520(a)(1). First, the

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claimant must not be engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i).
Second, the claimant must establish that he or she has an impairment or combination of
impairments that significantly limits his or her ability to perform basic work activities and meets
the durational requirements of the Act. 20 C.F.R. § 404.1520(a)(4)(ii). Third, the claimant must
establish that his or her impairment meets or equals an impairment listed in the appendix of the
applicable regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s impairments do not meet
or equal a listed impairment, the SSA determines the claimant’s residual functional capacity
(“RFC”) to perform past relevant work. 20 C.F.R. § 404.1520(e).
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant meets this burden, the analysis
proceeds to step five. At step five, the burden shifts to the Commissioner to establish the claimant
maintains the RFC to perform a significant number of jobs in the national economy. Singh v. Apfel,
222 F.3d 448, 451 (8th Cir. 2000). If the claimant satisfied all of the criteria under the five-step
evaluation, the ALJ will find the claimant to be disabled. 20 C.F.R. § 404.1520(a)(4)(v).
III.

The ALJ’s Decision
Applying the foregoing five-step analysis, the ALJ here found that Smith met the insured

status requirements of the Social Security Act through December 31, 2022, and that she had not
engaged in substantial gainful activity since January 23, 2017, the alleged onset date. (Tr. 18.)
Next, the ALJ found that Smith has the following severe impairments: torn ACL of the left knee,
status post two arthroscopic surgeries; transverse fracture in the cervical spine; right rotator cuff
tendonitis; degenerative disc disease of the lumbar spine; headaches/occipital neuralgia;
depression; anxiety; and a traumatic brain injury. The ALJ found that Smith’s healed fracture of

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the distal radius of the right forearm; history of displaced fracture of the right wrist; and tinnitus
were not severe medical impairments. (Tr. 18.)
The ALJ determined that Smith did not have an impairment or combination of impairments
that meets or medically equals the severity of the listed impairments in 20 C.F.R. 404, Subpart P,
Appendix 1. The ALJ also determined that Smith had the residual functional capacity to perform
light work with additional limitations. Specifically, the ALJ found that
She can occasionally climb ramps and stairs. She can never climb ladders, ropes,
or scaffolds. She can occasionally balance, stoop, kneel, crouch, and crawl. She can
occasionally reach overhead on the right. She can tolerate occasional exposure to
extreme cold, excessive vibration, and hazards such as the use of dangerous moving
machinery and exposure to unprotected heights. She is able to apply common sense
understanding to carry out detailed but uninvolved instructions in the performance
of simple, routine, and repetitive tasks in a work environment free of past-paced
[sic] production requirements, involving simple work-related decisions with few, if
any, workplace changes. She can have occasional interaction with the public and
frequent interaction with coworkers and supervisors.
(Tr. 20-21.) The ALJ found that Smith was unable to perform any past relevant work. (Tr. 27.)
Smith was 28 years old on the alleged disability onset date and considered a younger individual
age 18-49, and she has at least a high school education and is able to communicate in English. The
ALJ determined that the transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding that the claimant
is “not disabled” whether or not the claimant has transferable job skills. (Tr. 28.) Based on the
foregoing, the ALJ found that there are jobs that exist in significant numbers in the national
economy that Smith can perform, including Folding Machine Operator (Dictionary of
Occupational Titles (DOT) No. 208.685-014, light exertion level, approximately 76,000 jobs in
the national economy), Linking Machine Operator (DOT No. 529.685-162, light exertion level,
approximately 50,000 jobs in the national economy), and Patching Machine Operator (DOT No.
361.685-022, light exertion level, approximately 35,000 jobs in the national economy). (Tr. 29.)
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Therefore, the ALJ concluded that Smith was not disabled, as defined in the Act, from January 23,
2017 through February 27, 2020. (Tr. 29.)
IV.

Standard for Judicial Review
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.

2001). This Court must affirm the Commissioner’s decision if it complies with the relevant legal
requirements and is supported by substantial evidence in the record as a whole. See 42 U.S.C.
§§ 405(g); 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). “Under the
substantial-evidence standard, a court looks to an existing administrative record and asks whether
it contains ‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). “Substantial evidence is less than a preponderance, but is enough that a reasonable
mind would find it adequate to support the Commissioner’s conclusion.” Pate-Fires, 564 F.3d at
942. See also Biestek, 139 S. Ct. at 1154 (“Substantial evidence . . . means—and means only—
‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”)
(quoting Consolidated Edison, 305 U.S. at 229).
In determining whether substantial evidence supports the Commissioner’s decision, the
Court considers both evidence that supports that decision and evidence that detracts from that
decision. Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012). 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. at 1064 (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

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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)).
V.

Discussion
Smith challenges the ALJ’s decision, asserting that the ALJ erred in finding that Smith’s

right forearm and wrist fractures were not severe medical impairments. Specifically, Smith argues
that “there is more than sufficient evidence” that Smith’s right arm fractures were severe medical
impairments, and because the ALJ did not consider the fractures severe impairments, the ALJ
failed to take into consideration the grasping and manipulation problems Smith would have in her
dominant hand. Defendant responds that the ALJ properly considered the evidence, explaining that
the records did not reflect sustained treatment for Smith’s right wrist fracture after her appointment
on June 14, 2017, and that the records reflect the right forearm fracture and corresponding surgery
and other treatment took place in 2015, before the January 23, 2017 alleged onset date.
At step two of the sequential process, the ALJ must determine that the claimant has a severe
mental or physical impairment that has or is expected to last twelve months or will result in death.
20 C.F.R. §§ 404.1509, 404.1520(a)(4)(i)-(ii); 416.909, 416.920(a)(4)(i)-(ii). “An impairment
is not severe if it amounts only to a slight abnormality that would not significantly limit the
claimant's physical or mental ability to do basic work activities.” Kirby v. Astrue, 500 F.3d 705,
707 (8th Cir. 2007); 20 C.F.R §§ 404.1520(c), 416.920(c). Basic work activities mean the abilities
and aptitudes necessary to do most jobs, including physical functions; capacities for seeing,
hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of
judgment; responding appropriately to supervision, coworkers and usual work situations; and
dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b); 416.921(b). Although

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this burden may not be high, it nevertheless remains the plaintiff’s burden to establish that his
impairment or combination of impairments is severe. Mittelstedt v. Apfel, 204 F.3d 847, 852 (8th
Cir. 2000); 20 C.F.R. § 404.1512(a). If plaintiff cannot show that an impairment has more than a
minimal effect on his ability to work, then the impairment is not severe. Page v. Astrue, 484 F.3d
1040, 1043 (8th Cir. 2007). While this requirement may not be onerous, it is still not a “toothless
standard.” Kirby v. Astrue, 500 F.3d 705, 708 (8th Cir. 2007).
In this case, the ALJ acknowledged that he must determine whether Smith’s impairments
or combination of impairments are severe. (Tr. 16.) He found that Smith had the severe
impairments of torn ACL of the left knee status post two arthroscopic surgeries, transverse fracture
in the cervical spine, right rotator cuff tendonitis, degenerative disc disease of the lumbar spine,
headaches/occipital neuralgia, depression, anxiety, and a traumatic brain injury. (Tr. 18.) He then
relied on specific medical evidence to determine that Smith’s healed fracture of the distal radius
of the right forearm, history of displaced fracture of the right wrist, and tinnitus were not severe
medical impairments. (Tr. 18.) The ALJ explained:
[Smith’s] records since the alleged onset date reflect generally conservative
treatment for these conditions and few objective signs suggesting that these
conditions cause significant functional limitations. With respect to her
healed fracture of the right forearm, she fractured her right arm more than
one year prior to the alleged onset date, and her records do not reflect
sustained treatment for this condition after late 2015 (Ex. 15F at 3). With
respect to her fracture of the right wrist, in June 2017, she had no complaints
of pain in her right hand, and she noted that her right hand was “better” (Ex.
9F at 12). Additionally, her records do not reflect sustained treatment for
this condition after that time. . . . Because these impairments do not result
in significant work related limitations, they are not severe.
(Tr. 18.)
The Court has reviewed the entire transcript and the parties’ briefs and finds that the ALJ
gave good reasons, supported by substantial evidence, for finding that the fractures were not severe

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medical impairments. The record reflects that Smith’s surgical intervention for the right forearm
fracture sustained in 2015 took place before the alleged onset date. Then, after the right wrist
fracture sustained in 2017, Smith sought orthopedic treatment. Over the next several months,
Smith had follow-up visits where her physician consistently documented improvement in Smith’s
right hand, including x-rays reflecting the healed fracture, Smith’s subjective reports of less pain
overtime and/or that her hand “feels better,” and improved physical exams showing Smith gained
full range of motion of all of her fingers, could make a fist with her right hand, and had no
tenderness to palpation. Additionally, after considering Smith’s impairments the ALJ still imposed
an RFC of light work with additional physical limitations, including that Smith can only
occasionally reach overhead on the right.
As described above, this Court’s role is to determine whether the ALJ’s findings are
supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g); Richardson,
402 U.S. at 401; Pate-Fire, 564 F.3d at 942; Estes, 275 F.3d at 724. So long as there is substantial
evidence in the record that supports the decision, this Court may not reverse it simply because
substantial evidence exists in the record that would have supported a contrary outcome, or because
the Court would have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th
Cir. 2001).
Based on a careful review of the record, and for the reasons stated in the ALJ’s wellreasoned opinion and in Defendant’s brief, the Court finds Smith’s arguments on appeal to be
without merit and further finds that the record as a whole reflects substantial evidence to support
the ALJ’s decision. See Sledge v. Astrue, 364 Fed. App’x 307 (8th Cir. 2010) (district court
summarily affirmed the ALJ).

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The Court acknowledges that the record contains conflicting evidence, and the ALJ could
have reached a different conclusion. However, this Court’s task is not to reweigh the evidence
presented to the ALJ. The ALJ’s weighing of the evidence here fell within the available “zone of
choice,” and the Court cannot disturb that decision merely because it might have reached a
different conclusion. See Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011).
VI.

Conclusion
Having reviewed the entire record, the Court finds that the ALJ made a proper RFC

determination based on a fully and fairly developed record. Consequently, the Court determines
that the ALJ’s decision is supported by substantial evidence.
Accordingly,
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. (Docs. 1, 27.)
IT IS FURTHER ORDERED that the decision of the Commissioner is AFFIRMED.

NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
Dated this 16th day of September, 2022.

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