Burch v. Astrue

Filing 28

OPINION, MEMORANDUM AND ORDER re: 22 27 21 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. Signed by District Judge Henry E. Autrey on 2/3/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SANDY JENEAN BURCH,
Plaintiff,
vs.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

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Case No. 2:12CV29 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review
under 28 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff’s
application for Supplemental Security Income (SSI) under Title XVI, 42 U.S.C.
§1381, et seq. For the reasons set forth below, the Court affirms the
Commissioner's denial of Plaintiff's application.
Facts and Background
Plaintiff was 34 years old at the time of the hearing. She is a high school
graduate with a half a year of college. The ALJ found Plaintiff had the
impairments of: bipolar disorder, PTSD, borderline personality disorder,

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Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue 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).

hyperglycemia with suspicion of diabetes mellitus II, obesity, and migraine
headaches.

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At the September 22, 2010 hearing, Plaintiff testified that she dropped out
of college because of migraine headaches, which she has usually once per week.
Plaintiff takes Topamax for her headaches. Her headaches last about three days.
Plaintiff testified that she is bipolar, has PTSD, and major depressive disorder.
Plaintiff becomes angry at people for no reason, when she is manic, she stays “up”
for days at a time, then she will sleep two or three days, not wanting to get out of
bed. She has flashbacks of her ex-husband beating her.
Plaintiff was hospitalized because she was suicidal, but did not actually hurt
herself. Plaintiff also has flashbacks of her father raping her and she attempted
physical injury in 1998.
Plaintiff attended vocational rehabilitation, and she was placed at Meritt’s.
She previously worked as a cashier at Wal-Mart, but she had panic attacks and
would leave the cash register for about 10 minutes to go to the bathroom.
Plaintiff also did telemarketing, but could not handle the stress of the job.
Plaintiff watches TV and plays with her cats. She goes shopping about once per
month for groceries. Plaintiff lives with her mother. She sometimes cooks small
meals, she has one friend in Texas, and has no social activities. She gets
nightmares every night. She hears voices a couple of times a week when she is
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alone. The voices tell her she is worthless. She often breaks down and cries; she
forgets things and does not handle criticism well.
A psychological expert also testified. Dr. Sternes reviewed Plaintiff’s
records. Dr. Sternes determined that she was bipolar, has a major depressive
disorder and PTSD. Plaintiff responds quickly to medication and talk therapy. Dr.
Sternes determined there are no marked areas and that Plaintiff understands, can
remember and carry out instructions as long as they are short and simple. She can
adapt to most changes in the workplace. She can make simple work-related
decisions. Plaintiff has mild difficulties in maintaining concentration, persistence
and pace.
A medical expert also testified. He testified that, based on Plaintiff’s
physical impairments, Plaintiff could function at a medium RFC.
A vocational expert also testified. The VE testified that Plaintiff could
perform unskilled work and at light exertional level. Plaintiff could perform light
or medium exertional level work, with very little public contact; cleaning work;
clothing sorter; laundry attendant. The VE testified there are jobs that satisfy these
requirements, though the number is limited.
Plaintiff’s application for social security and supplemental security income
benefits under Titles II, 42 U.S.C. §§ 401, et seq., and XVI of the Act, 42 U.S.C. §
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1381, et seq., was denied and Plaintiff timely requested a hearing by an
Administrative Law Judge. A hearing was held on September 22, 2010. On
October 13, 2010, the ALJ issued an unfavorable decision. On February 16, 2012,
the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision.
Thus, the decision of the ALJ stands as the final decision of the Commissioner.
Standard For Determining Disability
The Social Security Act defines as disabled a person as one 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
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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.
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
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(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).
ALJ’s Decision
Applying the foregoing five-step analysis, the ALJ in this case determined
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at Step One that Plaintiff had not engaged in substantial gainful activity since July
29, 2009, the application date. At Step Two, the ALJ found that Plaintiff had the
following severe impairments: bipolar disorder, PTSD, borderline personality
disorder, hyperglycemia with suspicion of diabetes mellitus II, obesity, and
migraine headaches. At Step Three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that met or equaled in severity of any
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1.
Prior to Step Four, the ALJ found that Plaintiff had the residual functional
capacity to perform a full range of work at all exertional levels but with the nonexertional limitations of: she can understand, remember and carry out short simple
instructions, adapt to most work place changes and make simple decisions.
Plaintiff will perform best in settings where she is relatively independent with
limited social contact, such as the contact that is require with co-worker,
supervisors and the general public..
At Step Four, the ALJ determined that Plaintiff is unable to perform any
past relevant work.
At Step Five, the ALJ considered Plaintiff’s RFC, age, education, and work
experience to determine that there are jobs that exist in the national economy that
Plaintiff can perform.
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Standard For Judicial Review
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 both 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
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Cir.2005)). The Court 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).
Discussion
In her appeal of the Commissioner's decision, Plaintiff makes the following
arguments: the ALJ failed to properly consider opinion evidence; the Hearing
Decision improperly analyzes Plaintiff’s credibility under 20 CFR § 404.1529(c)
and Social Security Ruling 96-7 .
RFC and Medical Evidence
A claimant's 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,
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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.
The ALJ considered the opinion of Reginald Westhoff, a treating nurse. He
gave Mr. Westhoff’s opinion little weight because it was inconsistent with his
treatment notes and not supported by the medical evidence. It was not consistent
with the evidence of record. Plaintiff’s symptoms increased related to events in
her life, i.e., problems with her husband, which were quickly improved with
treatment. Moreover, the ALJ note that the treatment records from February 2010
through June 2010 show Plaintiff was not a suicide risk. Situational depression
does not render one disabled. Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir.
2010). Indeed, if an impairment can be controlled by treatment or medication, it
cannot be considered disabling. Brown v. Astrue, 611 F.3d 941, 955 (8th Cir.
2010).
Missing doses of medication also contributed to the ALJ”s findings. Dr.
Sternes testified that Plaintiff needed to maintain a consistent level of medication
in her blood for them to have a therapeutic effect.
Claimant’s credibility under 20 CFR § 404.1529(c) and Social Security Ruling
96-7
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When analyzing a claimant's subjective complaints of pain, the ALJ must
consider the five factors from Polaski v. Heckler: (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. See 739 F.2d 1320, 1322 (8th Cir.1984); see also
20 C.F.R. §§ 404.1529, 416.929. “The ALJ [is] not required to discuss
methodically each Polaski consideration, so long as he acknowledge[s] and
examine[s] those considerations before discounting [the claimant's] subjective
complaints.” Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir.2000). “Because the ALJ
[is] in a better position to evaluate credibility, we defer to his credibility
determinations as long as they [are] supported by good reasons and substantial
evidence.” Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.2006).
The ALJ discussed his reasons for his conclusions. The ALJ observed that
Plaintiff’s daily activities supported a higher level of functional ability than
Plaintiff claimed. Plaintiff claimed to not be able to do a number of activities,
however, the record shows that she moved to Missouri to care for her sick mother.
She cared for pets, did some cooking, visited with a friend from Texas, took online college classes, performed chores, and shopped. Plaintiff’s social worker,
Cindy Tarrant, indicated that Plaintiff could perform all household chores,
shopping, yard work, preparing simple meals. Ms. Tarrant also noted that Plaintiff
continued to drive, talked to friends on the telephone and on the internet, and
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watched TV and movies.
The Court finds that the ALJ's determination was based on substantial
evidence of record and properly included only Plaintiff's credible limitations. See
Wildman, 596 F.3d at 966.
The ALJ’s findings are clearly based upon the record as a whole. The ALJ
summarized Plaintiff’s testimony regarding her limitations, the treatment notes
regarding her impairments, the medical opinions in the record, Plaintiff’s
representations in her disability report, and the ALJ’s credibility findings. The
ALJ applied the proper standard to the facts before him and his determination of
whether Plaintiff was disabled.
Conclusion
After careful examination of the record, the Court finds the Commissioner's
determination is supported by substantial evidence on the record as a whole, and
therefore, the decision will be affirmed.
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.

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Dated this 3rd day of February, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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