Thomson v. Colvin

Filing 31

OPINION, MEMORANDUM AND ORDER: 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. Signed by District Judge Henry Edward Autrey on 03/02/2015. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
PAULA A. THOMSON,
Plaintiff,
v.

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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No. 2:13CV96 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
applications for Widow’s Insurance Benefits (Disability) under Title II of the
Social Security Act (Act), 42 U.S.C. §§ 402,423. For the reasons set forth below,
the Court will affirm the Commissioner's denial of Plaintiff's applications.
Facts and Background
Plaintiff was 51 years old at the time of the hearing. She has a limited
education and has had no additional education since she has been in the United
States. Plaintiff had no past work experience. Plaintiff lives alone in a residence.

She drives, but is only able to drive a few miles at a time. She drives
infrequently. She stated she can only drive for short periods due to back pain and
discomfort. She testified that she has problems with her neck, middle back, and
lower back.
Plaintiff claimed disability due to numerous physical and mental
impairments, including hepatitis C, depression, anxiety, chronic obstructive
pulmonary disease, degenerative disc disease of the neck and back, asthma, and
allergies.
The ALJ found Plaintiff had the severe impairments of asthma and chronic
epicondylitis of the right elbow. The ALJ found she did not have an impairment or
combination of impairments listed in or medically equal to one contained in 20
C.F.R. part 404, subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526).
A vocational expert testified in order to assist the ALJ in reaching a
decision. The ALJ concluded, based upon inquiry of the vocational expert that
Plaintiff retained the RFC to perform light work as defined in 20 CFR 404.1567 (b)
but needed to avoid climbing ladders, ropes, and scaffolds. She can only
occasionally climb ramps or stairs. She can only occasionally stoop, kneel, crouch,
crawl, and balance. She can frequently reach and reach overhead with the right

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upper extremity. The ALJ finally concluded that Plaintiff must avoid all exposure
to irritants such as fumes, odors, dust, gases, and poorly ventilated areas.
The Appeals Council denied her request for review on August 30, 2013.The
decision of the ALJ now stands as the final decision for review by this court.
Statement of Issues
The issues in a Social Security case are whether the final decision of the
Commissioner is consistent with the Social Security Act, regulations, and
applicable case law, and whether the findings of fact by the ALJ are supported by
substantial evidence on the record as a whole. Here, the specific issue is whether
the ALJ properly determined Plaintiff’s mental and back impairments were nonsevere impairments.
Standard For Determining Disability
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 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
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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 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.
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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 (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. 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 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. 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).

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RFC
A claimant's Residual Functional Capacity (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, 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.
A claimant's subjective complaints may not be disregarded solely because
the objective medical evidence does not fully support them. The absence of
objective medical evidence is just one factor to be considered in evaluating the
claimant's credibility and complaints. The ALJ must fully consider all of the
evidence presented relating to subjective complaints, including the claimant's prior

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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 subjective evidence of the duration, frequency, and intensity of the
claimant's pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant's functional restrictions.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him to reject the claimant's complaints.
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir.2005). “It is not enough that the
record contains inconsistencies; the ALJ must specifically demonstrate that he
considered all of the evidence.” Id. The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th
Cir.2004). The ALJ need only acknowledge and consider those factors. Id.
Although credibility determinations are primarily for the ALJ and not the court, the
ALJ's credibility assessment must be based on substantial evidence. Rautio v.
Bowen, 862 F.2d 176, 179 (8th Cir.1988). The burden of persuasion to prove
disability and demonstrate RFC remains on the claimant. See Steed v. Astrue, 524
F.3d 872, 876 (8th Cir. 2008).
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ALJ Decision
The ALJ here utilized the five-step analysis as required in these cases. The
ALJ determined at Step One that Plaintiff had not engaged in substantial gainful
activity during the period from her alleged onset date of January 31, 2011. The
ALJ found at Step Two that Plaintiff had the severe impairments of asthma, and
chronic epicondylitis of the right elbow.
At Step Three, the ALJ found that Plaintiff did not suffer from an
impairment or combination of impairments that meets or medically equal the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 404.1520 (d), 404.1525, and 404.1526).
As required, prior to Step Four, the ALJ determined the Residual Functional
Capacity of Plaintiff to perform light work as set forth in 20 CFR 404.1567 (b)
except she can only occasionally climb ramps or stairs, and never climb ladders,
ropes, or scaffolds; only occasionally stoop, kneel, crouch, crawl, and balance; and
frequently reach and reach overhead with the right upper extremity. In addition it
was found she must avoid all exposure to irritants such as fumes, odors, dust,
gases, and poorly ventilated areas.
At Step Four it was the finding of the ALJ that Plaintiff had no past relevant
work and therefore transferability of job skills is not an issue.

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Finally, at Step five, the ALJ found, considering Plaintiff’s age, education,
work experience, and residual functional capacity, Plaintiff could perform other
work that existed in significant numbers in the national economy. The ALJ
concluded as well that the Vocational Expert’s testimony was consistent with the
information set out in the Dictionary of Occupational Titles, except that relating to
the “sit/stand” option. This option is not set out in the Dictionary of Occupational
Titles, but results from the education and thirty-five years of experience as a
vocational expert. The ALJ, therefore, found Plaintiff not disabled, and denied the
benefits sought in her Applications.
Judicial Review Standard
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
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“‘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
Cir.2005)).
Courts 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). The Eighth
Circuit has repeatedly held that a court should “defer heavily to the findings and
conclusions” of the Social Security Administration. Hurd v. Astrue, 621 F.3d 734,
738 (8th Cir. 2010); Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001).
Discussion
A. Did the ALJ properly determine Plaintiff’s mental and back impairments were
non-severe impairments?
Plaintiff’s position on this query is that the ALJ improperly found that her
mental and back impairments were non-severe. The record, however,
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demonstrates that the ALJ did indeed properly evaluate and assess her
impairments.
An impairment is non-severe if it does not significantly limit an individual’s
physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1521(a);
Social Security Ruling (SSR) 96-3p, 1996 WL 374181 (S.S.A. 1996); see also
Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007). “Basic work activities”
include physical and mental functions such as walking, standing, sitting, lifting,
pushing, pulling, seeing, hearing, speaking, using judgment, responding
appropriately to co-workers and work situations, and understanding, carrying out,
and remembering simple instructions. See 20 C.F.R. § 404.1521(b). Slight
abnormalities that do not significantly limit a basic work activity are considered
“not severe.” See Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989) (quoting
Brown v. Bowen, 827 F.2d 311, 312 (8th Cir. 1987)). It is Plaintiff’s burden to
establish that her impairment or combination of impairments are severe. See
Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000).
While Plaintiff states without any real support in the record that the ALJ
erred in finding her mental impairments to be non-severe, the clear evidence belies
the assertion. The ALJ found Plaintiff had the medically determinable impairment
of depression but there were only limited or mild limitations. Plaintiff lived alone,
managed her finances, drove, maintained relationships with others, and had no
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problems in getting along with others or with authority figures; Plaintiff testified
that, mentally, she felt thirty years old. The ALJ’s finding that Plaintiff did not
have a severe mental impairment and assessment of Plaintiff’s functional
limitations was consistent with the opinion of State agency psychological
consultant Barbara Markway, Ph.D.
The record demonstrates no mental-health complaints and normal mentalstatus examinations since Plaintiff’s onset date. Plaintiff reported depression on
two occasions but the mental-status findings were normal or minimal and Plaintiff
reported no functional limitations to her medical providers. The record
demonstrates Plaintiff did not seek or require counseling or psychiatric treatment
and antidepressants were irregularly and sparingly prescribed. See Roberts v.
Apfel, 222 F.3d 466, 469 (8th Cir. 2000) (“The absence of any evidence of ongoing
counseling or psychiatric treatment or of deterioration or change in Roberts’s
mental capabilities disfavors a finding of disability.”) (citation omitted); Buckner v.
Astrue, 646 F.3d 549, 557 (8th Cir. 2011) (“[A]lthough Buckner was diagnosed
with depression and anxiety, substantial evidence on the record supports the ALJ’s
finding that his depression and anxiety was not severe.”) (citing Trenary v. Bowen,
898 F.2d 1361, 1364 (8th Cir. 1990)). The record patently supports the conclusion
that the ALJ properly evaluated Plaintiff’s mental impairments for severity.

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Plaintiff asserts that the ALJ should have found that she had severe
impairments of the cervical, thoracic, and lumbar spine. The record fully refutes
her claim and supports the finding of the ALJ. Plaintiff made no complaints of
neck or back pain to any medical provider around the time of her alleged onset date
or any time thereafter set out in the record. Plaintiff asserts the ALJ should have
assessed “the reason” for her “limited treatment” with a “treating specialist,” but
Plaintiff fails to even suggest what reason the ALJ should have considered, what
treatment she desired, and which specialist denied or refused treatment or more
extensive treatment.

The record shows that Plaintiff sought out medical care when she
concluded it was needed, and treatment was limited because she did not have
significant health issues and thus a need for a specialist. See Gwathney v.
Chater, 104 F.3d 1043, 1045 (8th Cir. 1997) (“[Claimant’s] failure to seek
medical assistance for her alleged physical and mental impairments
contradicts her subjective complaints of disabling conditions and supports the
ALJ’s decision to deny benefits.”).
B. Was the ALJ determination that Plaintiff could perform other work
substantiated by substantial evidence
It is axiomatic that an ALJ may meet the burden by relying on vocational
expert testimony. See Nelson v. Sullivan, 946 F. 2d 1314, 1317 (8th Cir. 1991) (A
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vocational expert is a specialist in employment and vocational factors which
influence employment. The ALJ was justified in relying on the vocational expert’s
testimony in finding plaintiff not disabled.). The hypothetical question put to the
expert need only include those limitations that the ALJ found to be substantially
supported by the record as a whole. See Lacroix v. Barnhart, 465 F.3d 881, 889
(8th Cir. 2006). In addition, hypothetical questions do not have to include
subjective complaints which have been discredited as long as the ALJ has a reason
to discredit them. See Guilliams v. Barnhart, 393 F. 3d 798, 804 (8th Cir. 2005).
Upon reviewing the record and the statements and conclusions of the ALJ it
is clear that they are supported by the record. The ALJ posed a proper hypothetical
question to the vocational expert based on all of Plaintiff’s credible limitations.
This established a basis for the vocational expert to testify that such an individual
could perform other work that existed in significant numbers, including the jobs of
table worker, assembler, and investigator of dealer accounts. The hypothetical
question included the limitations the ALJ found credible, and excluded those that
were discredited for legally sufficient reasons. The vocational expert’s testimony
that Plaintiff could perform work existing in significant numbers, was substantial
evidence in support of the ALJ’s determination. See Martise v. Astrue, 641 F.3d
909, 927 (8th Cir. 2011); Gragg v. Astrue, 615 F.3d 932, 941 (8th Cir. 2010).

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Conclusion
After careful review, the Court finds the ALJ’s decision is supported by
substantial evidence on the record as a whole. 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.
Dated this 2nd day of March, 2015.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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