Bryant v. Colvin

Filing 24

OPINION MEMORANDUM AND ORDER 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. Signed by District Judge Henry Edward Autrey on 4/5/18. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
RONI R. BRYANT,
Plaintiff,
v.
NANCY A. BERRYHILL1,
Acting Commissioner of
Social Security Administration,
Defendant.

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No. 2:16CV0084 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review
under 42 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff’s
application for disability insurance benefits and supplemental security income
under Titles II and XVI of the Social Security Act (Act), 42 U.S.C. §§ 401-434,
1381-1385. For the reasons set forth below, the Court will affirm the
Commissioner's denial of Plaintiff's applications.
Facts and Background
On September 24, 2013, following a hearing, in a partially favorable
decision, an ALJ found the Plaintiff was disabled beginning December 18, 2009,
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit.

but was not disabled prior to that. On May 12, 2014, the Appeals Council
remanded the case to the ALJ. On April 16, 2015, following a hearing, an ALJ
found that Plaintiff was not under a “disability” as defined in the Act during any
portion of the period of alleged disability.
On February 6, 2015, Administrative Law Judge Dennis LeBlanc conducted
a video hearing from Columbia, Missouri to Hannibal, Missouri. Plaintiff
appeared in Hannibal, Missouri. Ms. Denise Weaver, Vocational Expert also
appeared.
Plaintiff resided in Louisiana, Missouri at the time of the hearing. Plaintiff is
single and has four children. She was 37 years old at the time of the hearing.
Plaintiff completed two years of college.
Plaintiff, since 2009, has suffered from headaches and nausea due to her
sensitivity to light. She also experiences thoracic outlet syndrome, which she
suggests is like being knotted up in her neck and the sensation/ pain goes to her
head and shoulders. She believes there might be a relationship between this pain
and the headaches. The Plaintiff also testified she has difficulty with the use of her
right hand in that it cramps up, gets cold and sometimes loses feeling in the
fingertips. She believes she has been diagnosed with carpal tunnel syndrome in
regard to her hand.

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On further examination by counsel for Plaintiff and the ALJ, Plaintiff
testified that she has difficulty with her left ankle. Her ankle had been broken and
required a plate with screws to repair the break. Three surgeries were performed
but the ankle is still troubling for her. It gets swollen from time to time and is
painful on a daily basis. Plaintiff also testified that she has seizures while sleeping
and sometimes during the daylight hours.
With regard to her mental health Plaintiff stated she has been diagnosed with
depression, AD/HD and OCD. For these conditions Plaintiff takes Adderall for
AD/HD, Flexeril, Benadryl to help her sleep, Keppra for seizures and speech
issues, Lamictal for seizures, Norco for pain, and Nexium for acid reflux. She also
takes Prozac for depression and Restoril.
There was testimony from Denise Weaver, the Vocational Expert. Ms.
Weaver testified regarding Plaintiff, who had no relevant past work, and consistent
with the Dictionary of Occupational titles. Based upon that consideration and the
stated hypotheticals of the ALJ, including stated limitations, the Vocational Expert
concluded there was work in the national economy available for Plaintiff as a
folding machine operator in the clerical work environment. The Vocational Expert
also testified there was work available as a garment sorter in the garment industry.
There was also work available as a mail clerk.

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Upon adding additional limitations of handling and fingering in occasional
use, the Vocational Expert found work available in the recreational industry as an
usher and in the wood products industry as a laminating machine off bearer.
The ALJ determined that Plaintiff was not entitled to a finding of disabled.
The Appeals Council denied Plaintiff’s request for review on September 23, 2016.
The decision of the ALJ is now 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 Plaintiff asserts the
specific issues in this case are: whether (1) the ALJ properly developed the record;
(2) appropriately considered Plaintiff’s “severe” impairments at step two of the
sequential evaluation process; (3) properly evaluated the consistency of Plaintiff’s
subjective complaints with the record as a whole; (4) correctly considered
Plaintiff’s RFC; and (5) whether the testimony of the vocational expert constitutes
substantial evidence supporting the ALJ’s determination.
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
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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 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
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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 (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.
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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).
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.

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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
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.
Although 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 v. Massanari, 259 F.3d 707, 711 (8th Cir.2001) (citing Lauer v. Apfel, 245
F.3d 700, 704 (8th Cir.2001)). Therefore, an ALJ is required to consider at least
some supporting evidence from a medical professional. See Lauer, 245 F.3d at 704
(some medical evidence must support the determination of the claimant's RFC);
Casey v. Astrue, 503 F .3d 687, 697 (the RFC is ultimately a medical question that
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must find at least some support in the medical evidence in the record). An RFC
determination made by an ALJ will be upheld if it is supported by substantial
evidence in the record. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.2006).
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).
ALJ Decision
The ALJ here utilized the five-step analysis as is required. The ALJ
determined at Step One that Plaintiff had not engaged in substantial gainful
employment since the onset date of June 30, 2012. The ALJ found at Step Two
that Plaintiff had the severe impairments of carpal tunnel syndrome, left ankle,
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shoulder, thoracic outlet syndrome, degenerative disc disease in the cervical spine,
osteoarthritis, obesity, depression, bipolar disorder, attention deficit, hyperactivity
disorder, anxiety, and compulsive obsessive disorder.
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 (404.1520(d), 404.1525, 404.1526, 416. 920(d), 416.925 and 416.926)).
As required, prior to Step Four, the ALJ determined that Plaintiff had the
residual functional capacity to perform light work, except 20/10 lift/carry;
stand/walk 30 minutes at a time for 4 of 8 hours; sit 6 hours of 8 hours;
occasionally climb ramps/stairs (no ladders, ropes scaffolds); occasionally crouch
and crawl; frequently reach, handle, and finger; must avoid hazards; can perform
simple routine tasks, and occasionally interaction with others.
At Step Four it was the finding of the ALJ that Plaintiff was not capable of
performing any past relevant work.
Step Five the ALJ concluded that Plaintiff was not under a disability from
December 15, 2000 forward.
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
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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)). Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015). In
determining whether substantial evidence supports the Commissioner’s decision,
the Court considers 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 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
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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
I. Did the ALJ Properly Develop the Record?
Plaintiff asserts the ALJ did not follow the mandate of the Appeals Council
on remand to the ALJ. Plaintiff posits the ALJ failed to obtain evidence from a
medical expert to clarify the nature and severity of the Plaintiff’s impairments or to
re-evaluate the Plaintiff’s subjective complaints. As the court reviews the order of
the Appeals Council, Defendant is correct that the order did not require the ALJ to
obtain a medical expert but simply to consider whether an expert was necessary.
A review of the record demonstrates the basis for remand by the Appeals
Council was, in fact, the failure of the ALJ to provide sufficient analysis to support
the conclusion of the Plaintiff’s disability. In short, the prior decision lacked
specificity in support of its findings.
Further review of the record demonstrates the ALJ here properly developed
the record with testimony from the Plaintiff, the Vocational Expert, and other
records and things that were made part of the record. “While ‘[a]n ALJ should
recontact a treating or consulting physician if a critical issue is undeveloped,’ ‘the
ALJ is required to order medical examinations and tests only if the medical
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records presented to him do not give sufficient medical evidence to determine
whether the claimant is disabled.’” Martise v. Astrue, 641 F.3d 909, 926-27 (8th
Cir. 2011) (quoting Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010)); see
Also Tellez v. Barnhart, 403 F.3d 953, 956-57 (8th Cir. 2005).
II. Did the ALJ Properly Assess Plaintiff’s Impairments at Step Two of
the Sequential Evaluation Process?
Here, Plaintiff asserts the ALJ erred by failing to assess her anxiety and

depression as “severe” impairments. The record clearly and unambiguously
disagrees with such assertion. In the decision rendered by the ALJ the second
step of the sequential evaluation delivered by the ALJ explores the condition
of the Plaintiff. The ALJ in fact concludes the Plaintiff suffered from several
“severe” mental impairments, including depression, bipolar disorder,
attention deficit hyperactivity disorder, anxiety, and obsessive compulsive
disorder.
The ALJ appropriately and properly considered all of the evidence relating
to the conditions of the Plaintiff, including her anxiety and depression.
Consideration was given to how Plaintiff’s mental impairments would affect her
ability to perform activities of daily living, social functioning, ability to maintain
concentration, persistence or pace, and whether she had experienced repeated
episodes of decompensation of extended duration. Upon thoroughly considering
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Plaintiff’s medical treatment record as well as her own account of her abilities, the
ALJ determined she had “mild” restrictions in activities of daily living, “moderate”
difficulties in social functioning, and “moderate” difficulties in concentration,
persistence and pace, with no episodes of decompensation of extended duration.
Findings here were more restrictive than those observed by the State agency
medical consultant, Kyle DeVore, Ph.D. “Significant weight” was assigned to his
opinion evidence.

Plaintiff underwent a psychological consultative examination on March
8, 2011, which was noted by the ALJ, and her mental status examination was
unremarkable except for psychomotor agitation. The ALJ reviewed the
treatment notes which showed unremarkable status examinations in which
she was well appearing, pleasant, cooperative, alert, and oriented, with fluent
and coherent speech, her treatment notes did not appear to reflect the
presence of agitation or tremors, nor did they show that Plaintiff’s mental
impairments have required emergency room intervention or psychiatric
hospitalization.
A review of the record in its entirety is keenly indicative that the ALJ
appropriately determined that Plaintiff’s severe mental impairments would

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result in mental RFC restrictions of no more than simple routine tasks and
occasional interaction with others.
III. Did the ALJ Properly Weigh the Consistency of Plaintiff’s
Subjective Complaints with the Record as a Whole?
The role of the court upon review is to ascertain whether the credibility
findings of the ALJ are supported by substantial evidence on the record as a whole.

See Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010). Credibility
questions concerning a claimant’s subjective testimony are “primarily for the
ALJ to decide, not the courts.” Vossen v. Astrue, 612 F.3d 1011, 1017 (8th
Cir. 2010). The record here demonstrates the ALJ put considerable time and
diligence in articulating the inconsistencies of Plaintiff’s subjective
complaints with the reasonable and substantial evidence in the record to the
contrary. Courts defer to the credibility determinations if they are supported
by good reasons and substantial evidence. See Cline v. Colvin, 771 F.3d
1098, 1102 (8th Cir. 2014).
At the hearing Plaintiff testified she had difficulty lifting, squatting,
bending, standing, reaching, kneeling, climbing stairs, and using her hands.
She testified that she could sit for only about 30 minutes and stand for 20
minutes and could lift no more than 10 pounds with her right arm. She also

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claimed she had difficulty grasping and holding items. Objective evidence
made part of the record and reviewed by the ALJ did not support the
subjective complaints. An ALJ may determine that “subjective pain
complaints are not credible in light of objective medical evidence to the
contrary”. Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006).
The record reflects the ALJ considered (1) inconsistencies between
Plaintiff’s complaints and her treatment records; (2) Plaintiff’s search for
employment during her alleged period of disability; (3) Plaintiff’s actual
period of employment as a cleaner, cashier, sales person and as a customer
service agent during her period of disability . All of these considerations and
circumstances that worked contrary to Plaintiff’s argument for benefits were
appropriate considerations for the ALJ in rendering the unfavorable decision.
See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006) (“Subjective
complaints may be discounted if the evidence as a whole is inconsistent with
the claimant’s testimony.”). See House v. Astrue, 500 F.3d 741, 745 (8th Cir.
2007). See Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005) (“[w]orking
generally demonstrates an ability to perform a substantial gainful activity”).

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Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004) (“[i]t was also not
unreasonable for the ALJ to note that Harris’s . . . part-time work [was]
inconsistent with her claim of disabling pain”).
It is clear that “[a] failure to follow [a] recommended course of
treatment [] weighs against a claimant’s credibility.” Guilliams v. Barnhart,
393 F.3d 798, 802 (8th Cir. 2005) (citing Gowell v. Apfel, 242 F.3d 793, 797
(8th Cir.2001)). Here the ALJ legitimately concluded Plaintiff did not
appear to be compliant with her doctor’s orders regarding her treatment for
sleep apnea and insomnia, and in taking her medication for ADHD and for
pain.
All of the aforestated conclusions and findings were based upon
substantial evidence on the record.
IV. Was the ALJ’s Determination of Plaintiff’s RFC Based Upon
Substantial Evidence?
Plaintiff argues that the ALJ erred in failing to assess an RFC of less
than sedentary work. The specific determination of the ALJ was that Plaintiff
retained the RFC to perform light work with the ability to lift 20 pounds
occasionally and 10 pounds frequently; sit for 6 hours of an 8-hour workday;
stand or walk for 4 hours of an 8-hour workday in increments of 30 minutes
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at a time; occasionally climb ramps and stairs, crouch, and crawl; frequently
reach, handle, and finger; cannot climb ropes, ladders, or scaffolds; must
avoid hazards; and can perform simple routine tasks and have occasional
interaction with others.
The ALJ reviewed and noted the objective medical evidence relating to
Plaintiff’s medical claim in relation to her degree of pain. The records did not
portray a need for any extreme limitations. Although Plaintiff posits the assertion
that the opinion is not supported by substantial evidence, the court concludes from
a review of the record, the decision of the ALJ in consideration of the record and
the explanations of conclusions referencing evidence in the record, that the RFC is
supported by substantial evidence.
V. Did the ALJ Appropriately Find Plaintiff was Not Disabled Because
She Retained the Residual Functional Capacity to Perform Work Existing in
Significant Numbers in the National Economy?
The vocational expert responded to a properly posed hypothetical that the
individual could work as a folding machine operator, garment sorter, or mail clerk.
Since the question was properly formulated, the expert’s testimony that Plaintiff
could perform work that exists in substantial numbers constitutes substantial
evidence supporting the Commissioner’s decision. See Heino v. Astrue, 578 F.3d
873, 882 (8th Cir. 2009).

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Each of the ALJ’s findings and conclusions contain a specific basis for
same. The ALJ carefully considered all of the evidence.
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.

Perkins v. Astrue, 648 F.3d 892, 900 (8th Cir.2011); Dunahoo v. Apfel, 241 F.3d
1033, 1038 (8th Cir. 2001).
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 30th day of March, 2018.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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