Logerman v. Colvin

Filing 23

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that decision of the Commissioner is AFFIRMED, and Plaintiff's Complaint is DISMISSED with prejudice. A separate Judgment will accompany this Order. Signed by District Judge John A. Ross on 9/29/14. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

KELLY LOGERMAN,
Plaintiff,
v.

CAROLYN COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No. 2: l 3-CV-20-JAR

MEMORANDUM AND ORDER

This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security's final decision denying Kelly S. Logerman's ("Logerman") application for
disability insurance benefits under Title II of the Social Security Act and Supplemental Security
Income (SSI) payments, alleging a disability beginning March 1, 2008. (Tr. 34.) Logerman
alleges disability due to low back pain and depression. (Tr. 38-39).

I.

Background
On March 31, 2008, Logerman completed her application for disability insurance and SSI

benefits. (Tr. 34). The state agency denied Logerman's claim initially. (Tr. 107-08). Following
a hearing, Administrative Law Judge (ALJ) Larry Shepherd issued a decision on Marer 24,
2010, finding that Logerman was not under a disability. (Tr. 110-23). On May 13, 2011, the
Appeals Council remanded the case to the ALJ for further consideration of the medical opinion
evidence. (Tr. 127-29). After conducting a new hearing on January 20, 2012, ALJ Dennis
LeBlanc (hereinafter "the ALJ") issued a written decision on January 31, 2012, upholding the

denial of benefits. (Tr. 14-26). Logerman requested a review of the ALJ's decision by the
Appeals Council. On March 12, 2012, Logerman's counsel submitted additional materials for
the Appeals Council's review. (Tr. 9-10). On January 16, 2013, the Appeals Council denied
Logerman's request for review. (Tr. 1-3). The decision of the ALJ thus stands as the final
decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000). Logerman filed
this appeal on March 7, 2013. (ECF No. 1.) The Commissioner filed an Answer. (ECF No. 9).
Logerman filed a Brief in Support of her Complaint. (ECF No. 15). The Commissioner filed a
Brief in Support of the Answer. (ECF No. 22). Logerman did not file a reply brief in support of
her Complaint, but the time for filing such a reply has run. See Case Management Order, ECF
No. 4.

II.

Decision of the ALJ
The ALJ determined that Logerman met the insured status of the Social Security Act

through September 30, 2010. (Tr. 17). The ALJ decided that Logerman has not engaged in
substantial gainful activity since March 1, 2008, the alleged onset date. (Tr. 17). The ALJ found
that Logerman has the following severe impairments: degenerative disk disease, asthma, obesity,
major depressive disorder, and generalized anxiety disorder. (Tr. 17). The ALJ stated that
Logerman, however, did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in the regulations. (Tr. 17-19).
The ALJ finally determined that Logerman had the residual functional capacity ("RFC") to
perform light work as defined in the regulations, except claimant was limited to lifting and
carrying twenty pounds occasionally and ten pounds frequently; is limited to walking no more
than two hours out of an eight-hour workday; must be able to alternate between sitting and
standing at will; is limited to climbing ramps or stairs for only up to two hours out of an eight-

2

hour workday, but never ladders, ropes, or scaffolds; is limited to occasional balancing, stooping,
kneeling, crouching, and crawling; is limited to handling and reaching frequently; must avoid
work environments containing hazards such as dangerous machinery or unprotected heights; is
able to understand, remember, and carry out non-detailed two-to-three step instructions; is

~ble

to perform repetitive tasks in an routine work setting involving few changes, where interaction
with supervisors and coworkers would occur no more than an occasional basis, and where work
is performed in a nonpublic setting; and is not able to perform work where she is required to
communicate with the public on behalf of the employer. (Tr. 19-24). The ALJ determined that
Logerman was unable to perform any past relevant work because all of her past relevant work
exceeded her RFC. (Tr. 25). The ALJ found that, considering Logerman's age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the national economy
that she can perform, such as an assembler or a packager. (Tr. 25-26). In conclusion, the ALJ
found that Logerman was not disabled, as defined under the Social Security Act, from March 1,
2008 through the date of the decision.

III.

Administrative Record

The following is a summary of relevant evidence before the ALJ.
A.

Hearing Testimony
1.

Logerman's Testimony

Logerman testified on January 20, 2012 as follows.
Logerman recently moved to give her children, aged 13 and 11, a better living
environment. (Tr. 39-40). She moved into an apartment unit on the ground floor. (Tr. 39-40).
Logerman is 37 years old. (Tr. 40). She has a high school diploma and a CNA license, but the
license is no longer current. (Tr. 40). She last worked as a CNA in 1997. (Tr. 40-41 ). She last

3

worked at Brookstone's warehouse in Mexico as a packer in 2007. (Tr. 41-42). She would pack
the merchandise and put it on a conveyor belt. (Tr. 41 ). She was a part-time seasonal worker,
working 8-10 hours a day. (Tr. 42). She was on her feet all day, except for approximately one
hour. (Tr. 43). She worked there about 3 months, but she had to stop because her legs and back
hurt. (Tr. 42). She was laid off but never recalled. (Tr. 42). She sometimes had to call in sick
to work because of problems she had. (Tr. 43). One morning she had back problems, such that
she could not even sit up. (Tr. 43.)
Logerman filed for Social Security benefits within a month after being laid off from
Brookstone. (Tr. 43). She filed for unemployment benefits but she is not sure if she received
them. (Tr. 43). She has applied for a secretary job but does not believe that she could do it
because of her depression and her back. (Tr. 44). She has not applied for any jobs for the last
five months. (Tr. 44).
Logerman has not worked for four years and only applied for a secretary job. (Tr. 45).
She has not applied for other jobs because the only employment in her area is factory or fast food
restaurants. (Tr. 45). She cannot perform those kinds of jobs because she gets really nervous and
cannot provide good customer service. (Tr. 45). She could not be a packer at a factory becnuse
of the lifting and standing on her feet. (Tr. 46). Within the last 2-3 years she stopped being able
to stand on her feet for 8 hours, with short breaks, like she did at Brookstone. (Tr. 46-47).
Since March 2008, Logerman has supported herself through temporary assistance for
needy families (TANF) payments she receives for her children. (Tr. 47). Her kids ride the bus
to school. (Tr. 47-48). Logerman never drives them to school. (Tr. 48). She has a license but
does not currently have a vehicle. (Tr. 48). A friend drove Logerman to today's hearing. (Tr.
48). She has approximately seven (7) friends, but she does not see them very often. (Tr. 48).

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Her friends come over to her house, where they sit and talk. (Tr. 48). No one comes over to
help her with the chores at her house. Her kids do all the chores around the house. (Tr. 48). She
does laundry while they are at school. (Tr. 49). She is able to move the clothes from the washer
to the dryer. (Tr. 49). There are no chores around the house that she is physically or mentally
unable to do. (Tr. 50).
During the day, she sits on her couch and watches TV or listens to the radio. (Tr. 50).
The TV is on for about 5 hours a day. (Tr. 50). She listens to the radio for about an hour a day.
(Tr. 51 ). She does not read. (Tr. 51 ). She does not have a computer. (Tr. 51 ). She has a cell
phone and sends text messages to her mother and sister. (Tr. 51 ). Her mother and sister live
nearby and come to her house around once a week. (Tr. 51 ). In the last 4 years, she leaves her
house to go to the doctor, the store, or to her mom's house. (Tr. 52-54). She does not go to her
kids' schools except for the teacher conference at the beginning of the year. (Tr. 54). She goes
to the kids' games during the summer. (Tr. 55). She has not left the state since filing for
disability. (Tr. 55).
Logerman has her mom pick her up or she calls a cab when she needs to leave the house.
(Tr. 55). She has problems out in public because she gets nervous. (Tr. 55). She has trouble
dealing with strangers because she thinks they are being sarcastic. (Tr. 56). She has some
conversations with strangers when she goes to the store. (Tr. 56).
Logerman has pain in her lower back that travels down her leg. (Tr. 56). The pain comes
and goes if she takes her medicine. (Tr. 57). It goes away about 30 minutes after she takes her
medicine. (Tr. 57). Standing on her feet more than 10 minutes, walking and sitting make the
pain worse. (Tr. 57). Her pain medication is prescribed by her doctor. (Tr. 57). A heating pad
also helps relieve the pain. (Tr. 58). She had back surgery in March 2011 and for 2-3 weeks

5

thereafter she was pain free, but the pain slowly came back. (Tr. 58). She had injections on her
back in the past, but they did not help. (Tr. 58).
Logerman's back problems became worse in 2006, when she was working at Brookstone.
(Tr. 59). It has been about the same since then. (Tr. 60). The pain medication makes her
drowsy. (Tr. 60). She also has pain in her hips and shoulders. (Tr. 60). She has arthritis. (Tr.
60-61 ). She takes medication once a week. (Tr. 61 ). The pain in her hips is light compared to
the pain in her back. (Tr. 61). She just started having problems with her shoulders in the last
two years. (Tr. 61). She has pain all through her shoulder blades. Tr. 61). Walking long
distances hurts her hips. She can only walk half a city block. (Tr. 62).
Logerman has taken medication for depression, anxiety and post-traumatic stress disorder
for about 2 years.

(Tr. 61).

The medication helps.

(Tr. 62-63).

She had problems with

depression and anxiety when she was working but was not seeing a doctor at that time. (Tr. 63).
She was taking Elavil when she was working. (Tr. 3). Her depression and anxiety is much worse
than when she was working. (Tr. 63).
She sleeps around 3-4 hours a night. (Tr. 64). As a result, she falls asleep during the day.
(Tr. 64). Three to four times a day she has problems with crying. (Tr. 64). She starts crying
when she has flashbacks to when she was abused as a child. (Tr. 64-65). After she has a flashback, Logerman gets very anxious, is hyper vigilant, and her mind races. (Tr. 65-66). She thinks
people are talking about her. (Tr. 66-67). She might have to have another back surgery to fuse
her vertebrae together. (Tr. 67-68). About three times a week it is hard for Logerman to get up
and face her day. (Tr. 68). She talks to the people at the Arthur Center about this. (Tr. 68-69).
She goes to the Arthur Center every two weeks. (Tr. 69).
Logerman used to play Bingo, but has not played in three years. (Tr. 69).

6

2.

Vocational Expert Gary Weimholt

Mr. Weimholt considered the following hypotheticals.
In the first hypothetical, the individual was 37 years old, with a high school education,
was able to lift and/or carry 20 pounds occasionally, 10 pounds frequently, could walk for two
hours of an eight-hour work day, would need to alternate between sitting and standing
throughout the work day and would be able to do so at will. The individual could climb ramps
and stairs for two hours of an eight-hour work day, but no ladders, ropes or scaffolds. The
individual could occasionally balance, stoop, kneel, crouch, and crawl. The individual would be
able to frequently reach and handle, but avoid work environments containing hazards such as
dangerous machinery or unprotected heights.

The individual would be able to understand,

remember and carry out non-detailed two-to-three-step instructions, perform repetitive tasks in a
routine work setting involving few changes, where interaction with supervisors and co-workers
would occur no more than on an occasional basis, meaning no more than one-third of the entire
work day, where work is performed in a non-public setting, and where the hypothetical
individual would not be required to communicate with the public on behalf of the employer. (Tr.
71.)

Mr. Weimholt testified that Logerman would not be able to perform any of her past
relevant work as it is generally performed in the national economy. (Tr. 72-73). However, she
would be able to perform the work of inspection and hand packaging jobs, code 559.687-074,
with the alternative sitting and standing provision included, and she could perform the work of
assembler of small products, code 739.687-030. These jobs are light exertional levels. (Tr. 74).
In the second hypothetical, Mr. Weimholt was to assume all of the information from the
first question, but that the individual would be off task, unable to perform her work, for periods

7

of approximately 20 percent of the work day. (Tr. 74). Mr. Weimholt said that such a person
would not be employable in these occupations. (Tr. 74).

Upon inquiry by Logerman's counsel,

Mr. Weimholt also said that the individual would not be employable if she missed work two to
three days a week. (Tr. 75).

B.

Medical Records

Logerman's relevant medical records are summarized as follows:
Logerman was seen at the Arthur Center from May 1, 2007 through September 21, 2010.
She was diagnosed with major depressive disorder (recurrent and moderate) and a GAF of 50. 1
(Tr. 337). Logerman was followed at Mexico Family Health Care from May 31, 2006 through
March 11, 2008.
On January 28, 2008, Logerman was seen at Medical Family Health Care, complaining of
back and hip pain. Logerman stated that she had been having pain in her hip and low back for at
least a year. She was a smoker.

Dr. Justin Jones gave Logerman a prescription for Naproxen

and instructed her to use Tylenol for pain. (Tr. 341 ).
On February 26, 2008, Logerman was seen by Dr. Bradley Sloan at the Center of
Orthopedic Excellence for L-spine pain and hip pain. She reported that the pain was

curren~ly

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out of 10 and had a sharp quality. She denied depression and agitation. Her mood and affect
were normal.

Dr. Sloan diagnosed her with lumbar spine pain, bilateral trochanteric bursitis,

bilateral joint pain in her hip, and obesity. Logerman received steroid injections in her hip. (Tr.
362-366).

1

A GAF score between 41 and 50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job)." DSM-IV 32.

8

On March 11, 2008, Logerman was seen by Dr. Jones to review her cholesterol labs and
with complaints of "some anxiety, some depression, some insomnia" and because she is
frustrated about being overweight. She declined counseling for her anxiety, depression and
insomnia. Dr. Jones prescribed Paxil and Klonopin for her mental health issues. (Tr. 339-40).
Logerman was seen at Healthworks for her lumbar spine from April 14, 2008 through
May 2, 2008. On April 14, 2008, physical therapist Jennifer Buswell saw Logerman, who rated
her pain as a 9. Logerman stated that she had not had any surgeries for this condition and was
not taking any prescription for this condition. (Tr. 377). Logerman reported that she harl an
MRI at Audrain Medical Center, which was positive for 3 bulging discs in her lumbar spine. (Tr.
378). Logerman also reported that she frequently wakes with muscle spasms in her back and leg.
Logerman was seen at Mexico Health Services from October 3, 2008 through July 17,
2012. On October 3, 2008, Dr. R.W. Jackson found that Logerman was experiencing chronic
low back pain with sacroilitis that was worse on the right. (Tr. 428-29). Her sacrum and coccyx
were normal. Dr. Jackson prescribed Toradol, Norflex for pain relief; Methotrexate for arthritis;
Mobic; and Cymbalta.
On October 23, 2008, Logerman underwent a psychological evaluation by Patrick Finder,
Licensed Psychologist. (Tr. 403-08, 440-46). Logerman reported physical and sexual abuse by
her father, physical abuse by her first husband, and problems with being around people. She
stated that she had "pretty constant suicidal thoughts." He diagnosed her with major depression
(recurrent, severe), post-traumatic stress disorder, panic attacks with agoraphobia. (Tr. 445).
He assigned her a GAF of 50.
On November 7, 2008, Logerman was seen by Dr. Jackson. He reported that her pain
level was down to a 2/10 and her HEENT (head, ears, eyes, nose, throat) examination was

9

unremarkable.

Her exam revealed some low back stiffness but to a much lesser degre , as

compared with her first evaluation. She reported 85% relief from her low back symptoms. He
gave her Norflex and Toradol injections for continued back pain relief, and refilled her
methotrexate and Cymbalta. (Tr. 430).
On December 19, 2008, Dr. Jackson saw Logerman for a follow up for her spondylitis.
(Tr. 431 ). Dr. Jackson reported that Logerman continued to do "quite well" on Methotrexate
therapy with "remarkable improvement and relief in low back pain." Dr. Jackson stated that
"[fJor the holidays, we will go ahead and give her Toradol 60 mg IM and Norflex 60 mg IM so
she can keep up pace with the family responsibilities and activities."
On January 22, 2009, Dr. Jackson saw Logerman for her spondylitis, noting she had a
flare-up for discomfort in her low back. (Tr. 432). Dr. Jackson again gave her Norflex and
Toradol injections and refilled her Methotrexate and Mobic.
On February 20, 2009, Logerman was seen by Dr. Daniel Lamthe-Jost at the Mexico
Health Services. (Tr. 433). Logerman reported pain that was a 8 out of 10, mainly in her low
back.
On February 24, 2009, Logerman was seen at Audrain Medical Center by Dr. Jeffrey
Tiede. (Tr. 409-16). Dr. Tiede noted that the severity of the pain varied from a 5-8 out of 10.
Dr. Tiede reviewed an MRI that showed "some degeneration at the S-1 level with mild foraminal
compression.'' Dr. Tiede gave Logerman a right sacroiliac joint steroid injection. (Tr. 412).
On March 20, 2009, Logerman had imaging done at Audrain Medical Center for
evaluation of her low back pain. (Tr. 436). Dr. George Cyriac had the following impressions: 1)
no evidence of significant abnormalities of the sacroiliac joints except early degenerative joint

10

disease; 2) diffusely bulging L5-Sl disc; and 3) there is foraminal narrowing bilaterally at the
L5-S 1 level which is more prominent on the right than the left.
On April 21, 2009, Dr. Tiede performed a L5-Sl lumbar epidural steroid injection. (Tr.
417-27).
Logerman was seen at the Arthur Center on May 17, 2010. (Tr. 452-58). She was
diagnosed with major depressive disorder (recurrent, moderate), and assigned a GAF of 50.
On April 30, 2010, Logerman was seen by Dr. Jackson at Audrain Medical Center. (Tr.
485-86). She was prescribed Toradol for immediate pain relief and ordered for an evaluation in
the pain clinic with Dr. Tiede.
On October 29, 2010, Logerman had an appointment with Dr. Jackson at Audrain
Medical Center. (Tr. 487-88). Logerman reported no enduring benefit from her lumbar epidural
steroid injections and back injections. She was prescribed Toradol, Noraflex and Cymbalta.
On March 23, 2011, Logerman underwent a microdisketomy L5-Sl, right, at Columbia
Regional Medical Center. (Tr. 470-76).
On April 5, 2011, Logerman had an appointment at Mexico Health Services. (Tr. 466).
It was noted that she was last seen in the summer of 2010. Logerman reported that she had been

doing better on Cymbalta but that lately her mood was more depressed and irritable. Logerman
rated her depression as a 8 on a scale of 10. She was assigned a GAF of 52.
On September 23, 201, Logerman was seen for a follow-up appointment at Audrain
Medical Center after her microdiskectomy on March 23, 2011. (Tr. 492-94). Logerman reported
that she was "feeling great" for two months but has been having a reoccurrence of low back pain
since the middle of June. (Tr. 492). She reported that she had not been back to her spine
surgeon because she has been taking care of her mother and aunt.

11

On November 25, 2011, Logerman was seen at Mexico Health Services. (Tr. 498). She
was diagnosed with major depressive disorder, generalized anxiety disorder, post-traumatic
stress disorder, and cluster B traits. (Tr. 498). It was recommended that therapy be restarted.
On January 9, 2012, Logerman appeared for a psychiatric evaluation with Dr. Melissa
Hutchens at the request of her attorney. (Tr. 502-510). Dr. Hutchens reported that Logerman
had symptoms of major depressive disorder (recurrent, severe), post-traumatic stress disorder,
history of learning disabilities, chronic pain. Dr. Hutchens assigned Logerman a GAF of 41 "due
to her serious impairments in social and occupational functioning as well as major impairment in
family relationships and mood." Dr. Hutchens stated that "[d]ue to the severity of the above
symptoms related to Ms. Logerman's anxiety and depression, it would be very difficult for her to
find or maintain gainful employment." (Tr. 509).
On January 9, 2014, Dr. Hutchens completed a Medical Assessment of Ability to do
Work-Related Activities (Mental). (Tr. 513-14). Dr. Hutchens found that Logerman had no
useful ability to function in every area except her ability to understand, remember, and carry out
simple job instructions and maintain personal appearance, in which Logerman was "serio·1sly
limited but not precluded."
On May 1, 2011, Logerman was seen at Mexico Health Services. (Tr. 523). She was
diagnosed with bipolar type II, generalized anxiety disorder, post-traumatic stress disorder, and
borderline personality disorder.

IV.

LegalStandard
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

12

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 mav 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).
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);
Part 404, Subpart P, Appendix 1. 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.
2

Fourth, the impairment must prevent claimant from doing past relevant work. 20 C.i;.R.
§§ 416.920(e), 404.1520(e). At this step, the burden rests with the claimant to establish his RFC.
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008); see also Eichelberger, 390 F.3d at 59091; Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). RFC is defined as what the
claimant can do despite his or her limitations, 20 C.F.R. § 404.1545(a), and includes an
2

"Past relevant work is work that [the claimant] has done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for [the claimant] to learn how to do it."
Mueller v. Astrue, 561F.3d837, 841 (8th Cir. 2009) (citing 20 C.F.R. § 404.1560(b)(l)).

13

assessment of physical abilities and mental impairments. 20 C.F .R. § 404.1545(b)-(e). 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). If it is found that the claimant can still perform past
relevant work, the claimant will not be found to be disabled. Id.; 20 C.F.R. § 416.920(a)(4)(iv).

If the claimant cannot perform past relevant work, the analysis proceeds to Step 5.
At the fifth and last step, the ALJ considers the claimant's RFC, age, education, and work
experience to see if the claimant can make an adjustment to other work.

20 C.F.R.

§ 416.920(a)(4)(v). If it is found that the claimant cannot make an adjustment to other work, the
claimant will be found to be disabled. Id.; see also 20 C.F.R. § 416.920(g). At this step, the
Commissioner bears the burden to "prove, first that the claimant retains the RFC to perform
other kinds of work, and, second that other work exists in substantial numbers in the national
economy that the claimant is able to perform." Goff, 421 F.3d at 790; Nevland v. Apfel, 204
F.3d 853, 857 (8th Cir. 2000). The Commissioner must prove this by substantial evidence.
Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).

If the claimant satisfies all of the criteria of the five-step sequential evaluation process,
the ALJ will find the claimant to be disabled. "The ultimate burden of persuasion to prove
disability, however, remains with the claimant." Id.; see also Harris v. Barnhart, 356 F.3d 926,
931 n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)).
This court reviews the decision of the ALJ to determine whether the decision is supported
by "substantial evidence" in the record as a whole. See Smith v. Shalala, 31 F.3d 715, 717 (8th
Cir. 1994). "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).

14

Therefore, even if a court finds that there is a preponderance of the evidence against the ALJ' s
decision, the ALJ's decision must be affirmed if it is supported by substantial evidence. Clark v.
Heckler, 733 F.2d 65, 68 (8th Cir. 1984). In Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988),
the Eighth Circuit Court of Appeals held:
[t]he concept of substantial evidence is something less than the weight of the
evidence and it allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the Secretary may decide to grant
or deny benefits without being subject to reversal on appeal.
As such, "[the reviewing court] may not reverse merely because substantial evidence exists for
the opposite decision." Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (quoting Johnson
v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)). Similarly, the ALJ decision may not be reversed
because the reviewing court would have decided the case differently. Krogmeier, 294 F.3d at
1022.

V.

Discussion
Logerman contends that the ALJ' s RFC finding was not supported by any medical

evidence and, therefore, the decision to deny Logerman's claim was not supported by substantial
evidence on the whole record. (ECF No. 15 at 23-27). Logerman notes that the ALJ granted the
opinion of psychologist Finder's opinion "less than substantial weight." The ALJ asserted that
Finder's conclusion that Logerman had severe psychologically based symptoms that would
seriously interfere with social, occupational, or school functioning was not consistent with other
psychiatric records in evidence, particularly given Logerman's sporadic treatment history and
activities of daily living. (Tr. 23). The ALJ also criticized Finder's report for relying "quite
heavily" on the subjective report of symptoms and limitations provided by Logerman. (Tr. 23).
Logerman also asserts that the ALJ give little weight to the opinion of Dr. Hutchens that
Logerman would have a difficult time finding or maintaining gainful employment and "could not
15

be relied upon to act in an emotionally stable manner or to interact with others in a socially
appropriate matter." (Tr. 23-24.) Logerman argues that the ALJ did not explain why her daily
activities were inconsistent with the psychological limitations noted by Finder and Dr. Hutchens.
(ECF No. 14 at 24).

Logerman contends that the ALJ did not point to any mental health

professional that either examined or reviewed the record of her treatment and concluded that
Logerman "could perform the simple work described by the ALJ in his finding of RFC." (ECF
No. 15 at 24-25). Logerman also insists that the ALJ was not permitted to find that her gap in
psychological treatment between May 2007 and May 2010 would contraindicate the serious
limitations imposed by Finder and Dr. Hutchins. (ECF No. 15 at 25). Logerman asserts that
"[t]he ALJ was not free to make his own medical conclusion."

(Id.)

In support of this

statement, Logerman argues that "[t]he law in this circuit has been for many years that a finding
of RFC must be supported by some medical evidence." (Id. (citing Krogmeier v. Barnhart, 294
F.3d 1019, 1024-25 (8th Cir. 2002); Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.2001)). In
addition, Logerman cites to Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009) for the
proposition that Logerman's sporadic mental treatment does not necessarily mean that she was
not mentally ill, but may be indicative of Plaintiffs conditions of major depressive disorder and
generalized anxiety disorder.

(ECF No. 15 at 25-26).

Logerman also argues that the ALJ

incorrectly concluded that her activates of sweeping, vacuuming, and doing laundry were
inconsistent with a finding of mental disability. (ECF No. 15 at 26). Finally, Logerman asserts
that "[t]he ALJ failed to point to any psychiatric or psychological professional who supported his
conclusion regarding Plaintiffs activities." (ECF No. 15 at 27).
In response, the Commissioner argues that the ALJ properly found that Logerman
retained the ability to perform light work as defined in the regulations and with some additional

16

restrictions.

(ECF No. 22 at 4).

The Commissioner contends that this RFC was properly

determined based upon all of the credible medical evidence. Contrary to Logerman's brief, the
Commissioner notes that the RFC "is not based solely on medical opinion evidence; rather it is
based on all the credible medical evidence of record." ECF No. 22 at 3 (citing 20 C.F.R.
§§404.1545(a), 416.945(a)). The Commissioner contends that the ALJ performed a detailed
credibility analysis and carefully considered Logerman's testimony and the medical records.
(ECF No. 22 at 5). The ALJ noted Logerman's activities of daily living as well as her spondic
mental health care in determining that Logerman's impairments were not as severe as alleged.
(ECF No. 22 at 6-8). The Commissioner also took issue with Logerman's argument that her
sporadic treatment could have been the result of her mental impairment, as in Pate-Fires v.
Astrue. The Commissioner stated that, unlike in Pates-Fires, Logerman was "compliant with her
antidepressant medications and there is no evidence to the contrary" and Logerman received
minimal mental health treatment. (ECF No. 22 at 8-9).
The Court holds that the ALJ considered all of the evidence, including the medical
evidence, in determining the RFC and the decision to deny Logerman's claim was supported by
substantial evidence on the record as a whole. RFC is defined as what the claimant can do
despite his or her limitations, and includes an assessment of physical abilities and mt:ntal
impairments. 20 C.F.R. §§ 404.1545, 416.945. The RFC is a function-by-function assessment of
an individual's ability to do work related activities on a regular and continuing basis. SSR 96-8p,
1996 WL 374184, at *1 (July 2, 1996). It is the ALJ's responsibility to determine the claimant's
RFC based on all relevant evidence, including medical records, observations of treating
physicians and the claimant's own descriptions of his or her limitations. Pearsall v. Massanari,
274 F.3d 1211, 1217 (8th Cir.2001) (citing Anderson v. Shalala, 51 F.3d 777, 779 (8th

17

Cir.1995)). The. Court recognizes that "[a]lthough 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, 259 F.3d at 711 (citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.2001));
Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th Cir. 2002)(quoting McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir.2000))("determination of residual functional capacity is based on all the
evidence in the record, including 'the medical records, observations of treating physicians and
others, and an individual's own description of his limitations"'). Therefore, an ALJ is "required
to consider at least some supporting evidence from a [medical] professional." Lauer, 245 F.3d at
704. However, contrary to Logerman's position, this does not mean that the ALJ must rely on a
specific medical opinion for it to be supported by substantial medical evidence.

"Medical

testimony is relevant in determining precisely what claimant's physical impediments are, but it is
not conclusive as to the ultimate question concerning whether the claimant's injuries are so
severe that he is prevented from doing productive work." Nelson v. Sullivan, 946 F.2d 1314,
1316-17 (8th Cir.1991). Rather, an RFC determination will be upheld ifit is supported by
substantial evidence in the record. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.2006); 20
C.F.R. §§404.1545(a), 416.945(a). "An ALJ is required to obtain additional medical evidence if
the existing medical evidence is not a sufficient basis for a decision." Naber v. Shalala, 22 F.3d
186, 189 (8th Cir. 1994)(citing 20 C.F.R. § 416.927(c)(3)). "But an ALJ is permitted to issue a
decision without obtaining additional medical evidence so long as other evidence in the record
provides a sufficient basis for the ALJ's decision." Naber, 22 F.3d at 189 (citing 20 C.F.R. §
416.927(c)(4)).
The Court finds that the ALJ' s findings were sufficiently supported in the record and by
competent medical evidence. First, the ALJ properly addressed Logerman's credibility. See

18

Pearsall, 274 F.3d at 1218 ("Before determining a claimant's RFC, the ALJ first must evaluate
the claimant's credibility."); Wildman v. Astrue, 596, 959, 968 (8 1h Cir. 201 O)("[W]e will defer
to an ALJ's credibility finding as long as the ALJ explicitly discredits a claimant's testimony and
gives a good reason for doing so."). The ALJ discussed a number of inconsistencies in the
record.

For example, although Logerman alleged significant symptoms and limitations due to

her back impairment, the clinical and objective findings failed to support that severe of a
limitation. (Tr. 20-24). Logerman began reporting lower back and hip pain in approximately
January 2008.

(Tr. 20).

The ALJ pointed out that the diagnostic images showed "mild"

degeneration of the bilateral hips and straightening of the lumbar lordosis. (Tr. 20). Follow-up
examinations by an orthopedist in 2008 revealed that Logerman had developed some tenderness
and reduced range of motion in the lumbar spine, as well as straight leg raises, but Logerman had
no sensory deficits, muscle atrophy, or gait abnormalities. (Tr. 21). Further, the ALJ noted that
Logerman's MRI in 2009 showed no signs of significant deterioration from 2008, other than a
bulging disk in her lumbar spine. Yet, despite her bulging disk, Logerman chose not to have
surgery until March 2011. Although Logerman claims that she had only a couple weeks of relief
after her microdiskectomy at L5-S 1, the treatment notes show that Logerman experienced
significant pain relief for several months after the surgery. Finally, the ALJ pointed out that,
although Logerman has recently reported back pain, this pain is likely the result of caring for her
mother and aunt and the resulting increased physical activity. (Tr. 21; see also Tr. 492).
Additionally, Logerman's daily activities, in conjunction with other record evidence,
support the ALJ's finding that Logerman is capable of performing light work, as provided by the
ALJ.

See Brown v. Astrue, 611 F.3d 941, 955-56 (8th Cir. 2010).

"[A]cts which are

inconsistent with a claimant's assertion of disability reflect negatively upon that claimant's

19

credibility." Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005). The ALJ noted that Logerman
admitted that she performed chores around the house, including sweeping and vacuuming, as
well as doing the laundry daily. (Tr. 296). She drives up to twenty miles at least four times per
week to see her boyfriend. (Tr. 298). She sits and watches her children's ballgames, which
presumably last at least a couple of hours.

(Tr. 55).

She reported to her doctors that she

sometimes gardens and plays videogames. (Tr. 297). She reads books and newspapers and texts
her mother and aunt. (Tr. 51, 297). She also cares for her aunt and mother. (Tr. 492). These
physical activities do not support her contention that has restrictions beyond the limitations
outlined by the ALJ.
Based upon these medical records and Logerman's admitted activities of daily living, the
Court finds that the ALJ properly accounted for Logerman's physical impairments with the RFC
that included a light work reduction and additional restrictions, such as limited walking and
alternating between sitting and standing at will. 3 See Bryant v. Colvin, No. 13-2351 (8 1h Cir.
Sept. 25, 2014) (finding that the ALJ did not entirely discount the claimant's allegations of pain
where the RFC was limited to two hours of standing per workday, occasional lifting of ten
pounds, and frequent lifting of less than ten pounds).
Likewise, the medical records indicate that Logerman sought limited treatment, despite
her supposed severe mental impairment. The ALJ determined that although Logerman has been
diagnosed with various affective and anxiety disorders, including major depressive disorder,
generalized anxiety disorder, panic disorder and post-traumatic stress disorder, Logerman's
3

As previously discussed, the ALJ limited Logerman to lifting and carrying twenty pounds
occasionally and ten pounds frequently; walking no more than two hours out of an eight-hour
workday; must be able to alternate between sitting and standing at will; climbing ramps or stairs
for only up to two hours out of an eight-hour workday, but never ladders, ropes, or scaffolds;
occasional balancing, stooping, kneeling, crouching, and crawling; frequently handling and
reaching; and must avoid work environments containing hazards such as dangerous machinery or
unprotected heights.
20

failure to seek regular, frequent treatment undermined her credibility that she suffers from a
severe impairment. (Tr. 22). For example, the ALJ noted that Logerman began experiencing
symptoms in May 2007 but failed to seek further psychiatric treatment until May 2010. (Tr. 22).
Even after Logerman established psychiatric treatment in 2010, Logerman only met with her
mental health providers on a sporadic basis, often going several months between appointments.
(Tr. 22). Thus, notwithstanding Dr. Hutchen's consultative examination and Finder's opinion, 4
which was arranged by Logerman's counsel, the record supports the ALJ's determination that
she does not suffer from a severe mental impairment. The Court also agrees that Plaintiffs
reliance on Pates-Fires is misplaced. In Pates-Fires, the plaintiff was a noncompliant patient who
suffered from schizophrenia. In contrast, Logerman was "compliant with her antidepressant
medications and there is no evidence to the contrary" and Logerman sought minimal mental
health treatment. As a result, the Court believes that Logerman's limited mental health treatment
is relevant to the ALJ' s finding that her mental health symptoms were not as severe as alleged.
The Court finds that the ALJ properly accounted for Logerman's mental deficiencies with
the finding that Logerman could understand, remember, and carry out non-detailed, two-to-three
step directions; could perform repetitive tasks in a routine work setting involving few changes,
where interaction with supervisors and coworkers would occur on no more than an occasional
basis, and where work is performed in a nonpublic setting; and should not perform work where
she is required to communicate with the public on behalf of the employer.
The ALJ considered and analyzed Logerman's physical and mental impairments as
outlined in the medical and factual record in determining Logerman's RFC.

The Court,

therefore, finds that the ALJ's decision as it relates to Logerman's RFC is supported by
4

Notably, Finder never provided any opinion as to Logerman's ability to work. Rather, his
entire report consists primarily of a regurgitation of Logerman's self-reported history.
21

substantial medical evidence in the record as a whole.

See Bryant v. Colvin, No. 13-2351 (8th

Cir. Sept. 25, 2014)(affirming the district court's decision that, despite claimant's subjective
complaints of pain and other limitations, the "substantial evidence in the record as a whole
supports the ALJ's credibility assessment, his hypothetical to the VE, and his ultimate finding
that [claimant] was not disabled during the period in question.").
VI.

Conclusion

Based on the foregoing, the Court finds that the ALJ' s decision was based on substantial
evidence in the record as a whole and should be affirmed.
According! y,
IT IS HEREBY ORDERED that decision of the Commissioner is AFFIRMED, and

Plaintiffs Complaint is DISMISSED with prejudice. A separate Judgment will accompany this
Order.

Dated this 29th day of September, 2014.

0

A.ROSS
ITED STATES DISTRICT JUDGE

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