Cain v. Berryhill

Filing 31

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiff's Complaint is DISMISSED with prejudice. A separate judgment shall be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on September 13, 2018. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

BRADLEY WAYNE CAIN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner of Operations,
Social Security Administration,
Defendant.

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Case No. 2:17-CV-00051-NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of Bradley Wayne Cain (“Plaintiff”) for
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq. Plaintiff has filed a brief in support of the Complaint (Doc. 20), Defendant has
filed a brief in support of the Answer (Doc. 25), and Plaintiff has filed a reply brief in support of
the Complaint (Doc. 30). The parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 10).
I. PROCEDURAL HISTORY
Plaintiff filed his application for SSI on April 11, 2014 (Tr. 158-69). Plaintiff was
initially denied on May 23, 2014, and he filed a Request for Hearing before an Administrative
Law Judge (“ALJ”) on September 18, 2013 (Tr. 91-94, 97-99). After a hearing, by decision
dated April 22, 2016, the ALJ found Plaintiff not disabled (Tr. 17-31). On May 26, 2017, the
Appeals Council denied Plaintiff’s request for review (Tr. 1-6). As such, the ALJ’s decision
stands as the final decision of the Commissioner.

II. DECISION OF THE ALJ
The ALJ determined that Plaintiff has not engaged in substantial gainful activity since
March 28, 2014, the application date (Tr. 22). The ALJ found Plaintiff has the severe
impairments of avascular necrosis1 of the bilateral hips, status post total right hip arthroplasty,2
and degenerative disc disease, but that no impairment or combination of impairments met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (Tr. 22-23).
After considering the entire record, the ALJ determined Plaintiff has the residual
functional capacity (“RFC”) to perform light work with the following limitations (Tr. 23). He
can perform occasional lifting up to 20 pounds and frequent lifting and carrying of up to 10
pounds (Id.). He can stand or walk four hours of an eight-hour workday and can sit six hours of
an eight-hour workday (Id.). He requires a sit-stand option to sit for five minutes every hour if
standing or stand for five minutes every hour if sitting, while remaining on-task and at the
workstation (Id.). Plaintiff cannot climb ladders, ropes, or scaffolds (Id.). He can perform work
that does not require more than occasional climbing of ramps or stairs, stooping, kneeling,
crouching, or crawling (Id.). He should avoid concentrated exposure to vibration and work
hazards such as unprotected heights or dangerous moving machinery (Id. at 23-24). The ALJ
found Plaintiff unable to perform any past relevant work (Tr. 26). The ALJ determined that there
are jobs that exist in significant numbers in the national economy that Plaintiff can perform,
including bench assembler, folding machine operator, and garment sorter (Tr. 27-28). Thus, the

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Avascular necrosis is defined as necrosis resulting from deficient blood supply. Stedmans
Medical Dictionary, 589610 (2014).
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Otherwise known as a total hip replacement. See Stedmans Medical Dictionary, 76210.
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ALJ concluded that a finding of “not disabled” was appropriate (Tr. 28). Plaintiff appeals,
arguing a lack of substantial evidence to support the Commissioner’s decision.
III. LEGAL STANDARD
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
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 may
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), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
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).
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.
Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to

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establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step
four of this analysis, the claimant has the burden of showing that she is disabled.”). 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).
Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the
Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. Steed, 524 F.3d at 874
n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The
ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v.
Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931
n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate
RFC remains on the claimant, even when the burden of production shifts to the Commissioner at
step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ’s
decision, the decision must be affirmed if it is supported by substantial evidence. Clark v.
Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “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).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox, 495 F.3d at 617. Instead, the district court must simply determine whether the
quantity and quality of evidence is enough so that a reasonable mind might find it adequate to

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support the ALJ’s conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of
the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).
Thus, an administrative decision which is supported by substantial evidence is not subject to
reversal merely because substantial evidence may also support an opposite conclusion or because
the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the court is required to review the administrative record as a whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical activity
and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions which
fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
IV. DISCUSSION
In his appeal of the Commissioner’s decision, Plaintiff generally asserts that the ALJ
erred in his RFC determination. Specifically, Plaintiff argues that the ALJ’s decision that
Plaintiff may perform light work is not based on substantial evidence (Doc. 20 at 5). For the
following reasons, the Court finds that Plaintiff’s argument is without merit, and that the ALJ’s
decision is based on substantial evidence and is consistent with the Regulations and case law.

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The Regulations define RFC as “what [the claimant] can do” despite his “physical or
mental limitations.” 20 C.F.R. § 404.1545(a). “When determining whether a claimant can
engage in substantial employment, an ALJ must consider the combination of the claimant’s
mental and physical impairments.” Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). “The ALJ
must assess a claimant’s RFC based on all relevant, credible evidence in the record, ‘including
the medical records, observations of treating physicians and others, and an individual’s own
description of his limitations.’” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (quoting
McKinney, 228 F.3d at 863). See also Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013). To
determine a claimant’s RFC, the ALJ must move, analytically, from ascertaining the true extent
of the claimant’s impairments to determining the kind of work the claimant can still do despite
his impairments. Anderson v. Shalala, 51 F.3d. 777, 779 (8th Cir. 1995). “Although it is the
ALJ’s responsibility to determine the claimant’s RFC, the burden is on the claimant to establish
his or her RFC.” Buford v. Colvin, 824 F.3d 793, 796 (8th Cir. 2016) (internal citations omitted).
A “claimant’s residual functional capacity is a medical question.” Lauer, 245 F.3d at 704
(quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)). The Eighth Circuit clarified in
Lauer that “[s]ome medical evidence . . . must support the determination of the claimant’s RFC,
and the ALJ should obtain medical evidence that addresses the claimant’s ability to function in
the workplace[.]” 245 F.3d at 704 (quoting Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000)
(per curiam) and Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)). Thus, an ALJ is
“required to consider at least some supporting evidence from a professional.” Id. See also
Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (“The ALJ bears the primary
responsibility for determining a claimant’s RFC and because RFC is a medical question, some

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medical evidence must support the determination of the claimant’s RFC.”); Eichelberger, 390
F.3d at 591.
As a preliminary matter, the Court will address Plaintiff’s assertion that the ALJ’s
findings that Plaintiff could walk or stand for only four hours of an eight-hour work day are
inconsistent with the Social Security Administration’s policy regarding light work. Specifically,
Plaintiff argues that when an ALJ determines a claimant is able to do light work but limits the
claimant to two hours of walking or standing, then the proper determination is one of sedentary
work (Doc. 20 at 9). Plaintiff maintains that if the ALJ determined he could only perform
sedentary, rather than light, work he would then be considered disabled (Id. at 5). However, the
Court finds the ALJ’s determination is not inconsistent with the definition of light work under 20
C.F.R. § 416.967(b). The regulation defines light work as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work,
you must have the ability to do substantially all of these activities. If someone can do
light work, we determine that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or inability to sit for long periods
of time.
20 C.F.R. § 416.967(b) (emphasis added). While “[t]he full range of light work requires
standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday,” SSR
83-10 specifically discusses the maximum standing and walking requirement per each exertional
level of work. SSR 83-10, 1983 WL 31251, at *5-6 (1983). Here, the ALJ determined that
Plaintiff was unable to perform the full or wide range of light work; she found that Plaintiff has
the capacity to perform light work but with limitations (Tr. 23). One such limitation was that
Plaintiff can stand or walk four hours of an eight-hour workday (Id.). Regardless, courts from

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this circuit “have found that a two hour standing or walking limitation is consistent with the
definition of a reduced range of light work.” See Torres v. Berryhill, No. CV 15-4416
(JRT/TNL), 2017 WL 1194198, at *3 (D. Minn. Mar. 30, 2017) (citing cases). Thus, the Court
finds that the ALJ’s determination that Plaintiff is limited to stand or walk for four hours is
consistent with the controlling regulatory definition of light work.
Next, the ALJ properly supported her RFC determination with substantial evidence
including “some” medical evidence. In making a disability determination, the ALJ shall
consider the medical opinions in the case record together with the rest of the relevant evidence in
the record. 20 C.F.R. § 416.927. “The amount of weight given to a medical opinion is to be
governed by a number of factors, including the examining relationship, the treatment
relationship, consistency, specialization, and other factors.” Shontos v. Barnhart, 328 F.3d 418,
426 (8th Cir. 2003) (citing 20 C.F.R. § 404.1527(d)).
First, the ALJ properly weighed the opinion evidence of record. Specifically, the ALJ
gave “partial weight” to the opinion of consultative examiner Rob Miley, D.O. (“Dr. Miley”)
(Tr. 26, 240-50). In his report resulting from a consultative examination dated May 3, 2014, Dr.
Miley opined that Plaintiff can stand and walk six out of eight hours with regular five-minute
breaks every hour (Tr. 249). He further opined that Plaintiff could not carry more than 20
pounds occasionally and less than 10 pounds frequently and should be limited in his bending,
stooping, crouching, and squatting to occasional (Id.). The ALJ found Dr. Miley’s opinion
regarding Plaintiff’s ability to stand or walk during an eight-hour work day to be inconsistent
with Plaintiff’s subsequent hip impairment and, therefore, the ALJ more severely limited
Plaintiff to four hours of standing or walking per eight-hour workday (Tr. 26). Indeed, as noted
by the ALJ, in April 2015, Plaintiff underwent right total hip arthroplasty surgery as a result of

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his avascular necrosis (Tr. 25, 354-65). A consulting expert’s opinion is generally entitled to less
weight and will normally not constitute substantial evidence, particularly where the opinion is
inconsistent with the record as a whole. Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000).
The ALJ further determined that Dr. Miley’s opinion limiting Plaintiff to lifting less than 10
pounds frequently to be inconsistent with Plaintiff’s own testimony that he can generally lift 15
pounds and has no difficulty lifting and carrying a 12-pack of beer (Tr. 26, 43-44, 48). An ALJ
may discount a physician’s opinion when it is inconsistent with a plaintiff’s activities of daily
living. Petty v. Colvin, No. 4:13CV00172 JTK, 2014 WL 3734570, at *3 (E.D. Ark. July 28,
2014). See also cf. Kroger v. Astrue, No. CIV. 11-4012-KES, 2012 WL 5363479, at *2 (D.S.D.
Oct. 30, 2012) (finding the ALJ inappropriately rejected the opinion of plaintiff’s treating
physician in part because the physician’s opinion was consistent with plaintiff’s activities of
daily living).
The ALJ also considered and properly weighed the opinion of Norman Clarkson, D.O.
(“Dr. Clarkson”) (Tr. 26, 392). Upon examination, Dr. Clarkson opined, “I am unable to
ascertain any physical evidence at this time of any anatomical variant causing him disability”
(Tr. 392). The ALJ afforded Dr. Clarkson’s opinion “little weight” (Tr. 26). In doing so, the ALJ
noted that the opinion was from September 2010, a date very remote from Plaintiff’s amended
alleged onset date of March 28, 2014, and found that “Dr. Clarkson’s opinion has little to no
relevance in assessing the [Plaintiff’s] functional abilities within the period relevant to this case”
(Tr. 26). An ALJ may properly consider the timing of an opinion. Rogers v. Chater, 118 F.3d
600, 602 (8th Cir. 1997) (ALJ properly discounted treating physician’s opinion that was several
years removed from the time period relevant to claimant’s Social Security application). Further,
the Court notes that a physician’s opinion regarding the ultimate issue of disability is often not

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entitled to significant weight. Fentress v. Berryhill, 854 F.3d 1016, 1020 (8th Cir. 2017). See
also 20 C.F.R. § 416.927(d) (“A statement by a medical source that you are ‘disabled’ or ‘unable
to work’ does not mean that we will determine that you are disabled.”).
Next, the ALJ also considered the opinion of state agency psychological consultant Mark
Altomari, Ph.D. (“Dr. Altomari”) (Tr. 26, 83-84). State agency medical consultants are highly
qualified experts in Social Security disability evaluation. 20 C.F.R. §§ 404.1527(f)(2)(i),
416.927(f)(2)(i). See also Kamann v. Colvin, 721 F3d 945, 951 (8th Cir. 2013) (State agency
psychologist’s opinion supported ALJ’s finding that claimant could work despite his mental
impairments); Casey v. Astrue, 503 F.3d 687, 694 (8th Cir. 2007) (finding ALJ did not err in
considering State agency psychologist’s opinion along with the medical evidence as a whole). In
a case analysis dated May 14, 2014, Dr. Altomari opined that, “[t]here is no evidence to suggest
[Plaintiff] is suffering from a severe mental [medically determinable impairment] at this time and
no further development is needed” (Tr. 83). The ALJ afforded Dr. Altomari’s opinion
“significant weight,” finding it consistent with a 2010 psychological evaluation in which the
examiner provided no mental diagnosis (Tr. 26, 83). Although the 2010 psychological
evaluation is not a part of the current record, the ALJ properly noted that while Plaintiff
indicated that he had problems with memory, concentration, and understanding in his function
report (Tr. 207), he did not raise any mental impairments in his application or during his hearing
testimony (Tr. 26, 38, 185).
Second, the ALJ appropriately assessed Plaintiff’s credibility. Specifically, the ALJ
found that “the record does not reflect evidence that is entirely consistent with the [Plaintiff’s]
allegations of limitations” (Tr. 25). In so doing, the ALJ conducted a full and thorough review of
the very limited medical evidence, finding that the evidence of record failed to support a greater

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limitation than found in the residual functional capacity (See Tr. 24-26). The ALJ noted
relatively normal objective findings including findings of a steady gait; no difficulty getting up
and down from the examination table, walking on heels and toes, tandem walking or standing on
one leg; ability to remove and replace his shoes; full range of motion of his spine; and negative
straight leg test (Tr. 248-49, 323). After Plaintiff’s hip surgery, as noted by the ALJ, follow up
indicated that he was doing well after the surgery (Tr. 25, 350, 398-402). “Subjective complaints
may be discounted if there are inconsistencies in the evidence as a whole.” Pearsall v.
Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001). To the extent the Plaintiff identifies records
that support Plaintiff’s allegations, “[i]f substantial evidence supports the decision, then we may
not reverse, even if inconsistent conclusions may be drawn from the evidence, and even if we
may have reached a different outcome.” McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir.
2010).
The ALJ also found Plaintiff’s reported limitations to be inconsistent with his
“substantial” activities of daily living (Tr. 25). For example, as noted by the ALJ, Plaintiff
reported in his May 5, 2014 Function Report that he does laundry, prepares meals daily, shops,
drives, vacuums, and washes the dishes (Tr. 26, 202-09). The ALJ further indicated the Plaintiff
reported performing recommended exercises and riding his bike twice per day for 30 minutes
until cold weather prevented him from continuing (Tr. 26, 69-70). Bernard v. Colvin, 774 F.3d
482, 489 (8th Cir. 2014) (holding that plaintiff’s ability to ride his bicycle was inconsistent with
allegations of disabling foot cramps). See also Vance v. Berryhill, 860 F.3d 1114, 1121 (8th Cir.
2017) (“[t]he inconsistency between [the claimant’s] subjective complaints and evidence
regarding her activities of daily living also raised legitimate concerns about her credibility.”).

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Therefore, the Courts finds that the ALJ properly determined Plaintiff’s RFC because it
was based on all relevant evidence, including the medical records, observations of physicians
and others, and the Plaintiff’s own description of his limitations. Moore v. Astrue, 572 F.3d 520,
523 (8th Cir. 2009).
Finally, Plaintiff briefly argues that the jobs identified by the vocational expert (“VE”)
are more properly classified as jobs at the sedentary exertional level rather than the light
exertional level (Doc. 20 at 9). However, as previously addressed, the Court finds the ALJ’s
RFC determination to be consistent with the relevant evidence of record. Accordingly, as the
ALJ appropriately included the restrictions as indicated in his RFC determination in the
hypothetical question to the vocational expert, the Court finds that the hypothetical which the
ALJ submitted to the vocational expert was proper, the ALJ properly relied on the vocational
expert’s testimony that there were jobs existing in significant numbers which Plaintiff could
perform, and Plaintiff’s arguments to the contrary are without merit (See Tr. 27-28, 60-65). Hunt
v. Massanari, 250 F.3d 622, 625 (8th Cir. 2001) (“A hypothetical question posed to the
vocational expert is sufficient if it sets forth impairments supported by substantial evidence in the
record and accepted as true by the ALJ.”).
V. CONCLUSION
For the reasons set forth above, the Court finds that substantial evidence on the record as
a whole supports the Commissioner’s decision that Plaintiff is not disabled.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED with prejudice.
A separate judgment shall be entered incorporating this Memorandum and Order.

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Dated this 13th day of September, 2018.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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