Flaton v. Astrue

Filing 22

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 E. Autrey on 10/22/2013. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANDREW J. FLATON,

)
)
Plaintiff,
)
)
vs.
)
)
1
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 4:10CV1528 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 Disability Insurance Benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. §§ 401, et seq, and his application for supplemental
security income (SSI) under Title XVI of the Act, 42 U.S.C. § 1381, et seq. For
the reasons set forth below, the Court will affirm the Commissioner's denial of
Plaintiff's applications.
Facts and Background
Plaintiff was 27 years old at the time of the hearing. He had obtained an

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as the Defendant in this suit. No further action needs to be taken to continue this
suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

associates degree in automotive technology. The ALJ found Plaintiff had the
severe impairments of: a history of anaplastic astrocytoma and sensory hearing
loss. At the September 24, 2009 hearing, Plaintiff testified that he is not married,
and lives with his grandparents in a house. He works part time at his father’s
business. Plaintiff testified that he is prevented from working because of fatigue
and hearing loss. Plaintiff was not taking any medication at the time of the
hearing. Plaintiff drives, cooks once in a while, does dishes, his own laundry,
occasionally changes the oil in his grandpa’s car. Plaintiff testified he can walk
about 5 minutes before tiring and can stand for 30-45 minutes before getting tired.
He can lift about 35 pounds and has no problems sitting. Plaintiff had had a
benign tumor removed from his spine, but reported that he was having no trouble
as a result thereof.
A vocational expert testified at the hearing. She testified that, based on
Plaintiff’s work history and his limitations, Plaintiff could perform all of his
previous jobs, except for the material handler, which would possibly be too noisy.
The vocational expert testified that the jobs of filing clerk, janitor, assistant office
manager and office manager were within Plaintiff’s abilities.
Plaintiff’s application for social security and supplemental security income
benefits under Titles II, 42 U.S.C. §§ 401, et seq. And XVI of the Act, 42 U.S.C. §
1381, et seq was denied on June 24, 2008. On October 16, 2009, the ALJ issued
-2-

an unfavorable decision. On June 19, 2010, the Appeals Council denied Plaintiff’s
request for review of the ALJ’s decision. Thus, the decision of the ALJ stands as
the final decision of the Commissioner.
Standard For Determining Disability
The Social Security Act defines as disabled a person who is “unable to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir.2010). The impairment must be “of such severity that [the claimant] is not
only unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
A five-step regulatory framework is used to determine whether an
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
-3-

claimant is currently engaging in “substantial gainful activity”; if so, then he is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I); McCoy, 648 F.3d at
611. At Step Two, the ALJ determines whether the claimant has a severe
impairment, which is “any impairment or combination of impairments which
significantly limits [the claimant's] physical or mental ability to do basic work
activities”; if the claimant does not have a severe impairment, he is not disabled.
20 C.F.R. §§ 404.1520(a) (4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c);
McCoy, 648 F.3d at 611. At Step Three, the ALJ evaluates whether the claimant's
impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the claimant has such an impairment, the Commissioner will
find the claimant disabled; if not, the ALJ proceeds with the rest of the five-step
process. 20 C.F.R. §§ 404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the ALJ must assess the claimant's “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his] limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.2009) (citing 20 C.F.R. § 404.1545
(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
-4-

claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can
perform his past relevant work, he is not disabled; if the claimant cannot, the
analysis proceeds to the next step. Id.. At Step Five, the ALJ considers the
claimant's RFC, age, education, and work experience to determine whether the
claimant can make an adjustment to other work in the national economy; if the
claimant cannot make an adjustment to other work, the claimant will be found
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at
611.
Through Step Four, the burden remains with the claimant to prove that he is
disabled. Moore, 572 F.3d at 523. At Step Five, the burden shifts to the
Commissioner to establish that the claimant maintains the RFC to perform a
significant number of jobs within the national economy. Id.; Brock v. Astrue, 674
F.3d 1062, 1064 (8th Cir.2012).
ALJ’s Decision
Applying the foregoing five-step analysis, the ALJ in this case determined
at Step One that Plaintiff had not engaged in substantial gainful activity since
January 1, 2006, the alleged onset date. At Step Two, the ALJ found that Plaintiff
had the following severe impairments: a history of anaplastic astrocytoma and
-5-

sensorineural hearing loss. The ALJ also determined that Plaintiff had mild
restriction of activities of daily living; mild difficulties in maintaining social
functioning, and mild difficulties in maintaining concentration, persistence or
pace. There was a finding that the record failed to evidence repeated episodes of
decompensation. Further, the ALJ found that the record failed to establish the
presence of the “C” criteria (“C” criteria is established when the record evidences
a medically documented history of chronic affective disorder of at least two years
duration that has caused more than minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or psycho
social support, and one of the following: 1 repeated episodes of decompensation,
each of extended duration; or 2. A residual disease process that has resulted in
such marginal adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the individual to
decompensate; or 3. Current history of 1 or more years’ inability to function
outside a highly supportive living arrangement, with an indication of continued
need for such an arrangement.
At Step Three, the ALJ found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals one of the impairments
in the listings.
-6-

Prior to Step Four, the ALJ found that Plaintiff had the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b),
except that Plaintiff must avoid concentrated exposure to noise because he is deaf
in his right ear.
At Step Four, the ALJ determined that Plaintiff was capable of performing
past relevant work and therefore, the ALJ did not proceed to Step Five.
Standard For Judicial Review
The Court’s role in reviewing the Commissioner’s decision is to determine
whether the decision “‘complies with the relevant legal requirements and is
supported by substantial evidence in the record as a whole.’” Pate–Fires v. Astrue,
564 F.3d 935, 942 (8th Cir.2009) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th
Cir.2008)). “Substantial evidence is ‘less than preponderance, but enough that a
reasonable mind might accept it as adequate to support a conclusion.’” Renstrom
v. Astrue, 680 F.3d 1057, 1063 (8th Cir.2012) (quoting Moore v. Astrue, 572 F.3d
520, 522 (8th Cir.2009)). In determining whether substantial evidence supports
the Commissioner’s decision, the Court considers both evidence that supports that
decision and evidence that detracts from that decision. Id. However, the court
“‘do[es] not reweigh the evidence presented to the ALJ, and [it] defer[s] to the
ALJ’s determinations regarding the credibility of testimony, as long as those
-7-

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 AL’s
findings, the court must affirm the AL’'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)). The Court should disturb the administrative decision only if it falls
outside the available “zone of choice” of conclusions that a reasonable fact finder
could have reached. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.2006).
Discussion
In his appeal of the Commissioner's decision, Plaintiff makes the following
arguments: (1) the ALJ failed to find Plaintiff’s spinal tumor a severe impairment
as well as consider the effect of any “non severe” impairments; (2) the ALJ
formulated a conclusory RFC and improperly determined that Plaintiff could
perform his past relevant work; (3) the hearing decision does not include a hearing
loss analysis that is based on substantial evidence or include consideration that the
Plaintiff meets Listing 2.10B; (4) The hearing decision improperly analyzes the
claimant’s credibility under 20 CFR § 404.1529(c) and Social Security Ruling 967.
-8-

Severe Impairment and effect of non-severe impairment
Plaintiff’s spinal tumor was not a disabling impairment for more than 12
months. Indeed, Plaintiff testified that since his surgery, he was not having the
same pain as he experienced prior to the tumor’s removal. As the record
establishes, Plaintiff experienced pain for approximately three weeks. The lumbar
decompression and excision of the mass occurred about one week after an MRI
scan which revealed the mass.
As to the effects of Plaintiff’s non severe impairments, the record
establishes that Plaintiff has no limitations from his non sever tumor. Plaintiff
himself testified that he did not have any pain as a result of the tumor.
Conclusory RFC and improper determination that Plaintiff could perform his
past relevant work.
A claimant's RFC is the most an individual can do despite the combined
effects of all of his or her credible limitations. See 20 C.F.R. § 404.1545. An
ALJ's RFC finding is based on all of the record evidence, including the claimant's
testimony regarding his 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
-9-

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.
Plaintiff argues that the ALJ's RFC does not comply with Social Security
Regulations because it does not contain a narrative discussion describing how the
evidence supports each conclusion reached, i.e., a function by function
assessment of Plaintiff's ability to perform work-related activities. See Depover v.
Barnhart, 349 F.3d 563, 565 (8th Cir.2003).
Plaintiff argues that the ALJ failed to set forth specific limitations as a result
of Plaintiff’s hearing impairment, despite it being listed as a severe impairment.
Quite the contrary, the ALJ’s conclusions clearly set out that Plaintiff should avoid
concentrated exposure to noise due to his hearing loss.
Plaintiff argues that the ALJ's decision cannot be based on mere conclusory
statements. In essence, Plaintiff is arguing that the ALJ failed to provide a
function-by-function assessment. This argument is without merit. In determining
Plaintiff's RFC, the ALJ referenced light work as that “defined in 20 C.F.R. §
- 10 -

404.1567(a).” The ALJ discussed Plaintiff’s daily activities and his ability to
perform household chores. He walks without the use of an assistive device.
Plaintiff is able to engage in part time work. Plaintiff does not take pain
medication and has a hearing aid for his left ear. Plaintiff has not sought mental
health care. The ALJ concluded that based upon the record as a whole, Plaintiff is
able to continue to perform his previous light work jobs.
The Eighth Circuit has held that an ALJ does not fail in his duty to assess a
claimant's RFC merely because the ALJ does not explicitly address all functional
areas where it is clear he implicitly found the claimant not limited in those areas.
Depover, 349 F.3d at 567–68. An ALJ may base his RFC determination on all
evidence of record. Pearsall v. Massanari, 274 F.3d 1211, 1217–18 (8th
Cir.2001) (citing Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.1995)). Social
Security Ruling 96–8p specifically requires that an RFC determination include “a
narrative discussion describing how the evidence supports each conclusion.”
Although an RFC is a medical determination, in making this determination the
ALJ must rely not only on medical evidence but on all relevant, credible evidence.
McKinney, 228 F.3d at 863.
As discussed above, the medical evidence supports the ALJ's determination,
and the ALJ thoroughly considered and discussed this evidence in rendering his
- 11 -

decision. Overall, the ALJ's determination is both fully supported and sufficiently
explained. The Court upholds the ALJ's determination of Plaintiff's RFC.
Listing 2.10B
As Defendant argues, Listing 2.10B is not applicable to Plaintiff’s case. His
argument based on Listing 2.10B, therefore is without merit. Under Listing 2.08,
the ALJ properly considered the record as a whole.
Claimant’s credibility under 20 CFR § 404.1529(c) and Social Security Ruling
96-7
When analyzing a claimant's subjective complaints of pain, the ALJ must
consider the five factors from Polaski v. Heckler: (1) the claimant's daily
activities; (2) the duration, frequency, and intensity of the pain; (3) precipitating
and aggravating factors; (4) dosage, effectiveness and side effects of medication;
and (5) functional restrictions. See 739 F.2d 1320, 1322 (8th Cir.1984); see also
20 C.F.R. §§ 404.1529, 416.929. “The ALJ [is] not required to discuss
methodically each Polaski consideration, so long as he acknowledge[s] and
examine[s] those considerations before discounting [the claimant's] subjective
complaints.” Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir.2000). “Because the ALJ
[is] in a better position to evaluate credibility, we defer to his credibility
determinations as long as they [are] supported by good reasons and substantial
- 12 -

evidence.” Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.2006).
The ALJ discussed his reasons for his conclusions. The ALJ observed that
Plaintiff did not seek treatment for alleged mental impairments. Plaintiff was
without pain medication. Plaintiff sought medical treatment on an infrequent
basis.
With regard to Plaintiff’s activities, Plaintiff testified that he cares for his
daughter half of the time, he does some laundry, can change the oil in his
grandpa’s jeep, and he works part time for his father. He is able to drive a car
The Court finds that the ALJ's determination was based on substantial evidence of
record and properly included only Plaintiff's credible limitations. See Wildman,
596 F.3d at 966.
Conclusion
After careful examination of the record, the Court finds the Commissioner's
determination is supported by substantial evidence on the record as a whole, and
therefore, the decision will be affirmed.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of
Social Security is affirmed.
A separate judgment in accordance with this Opinion, Memorandum and
- 13 -

Order is entered this same date.
Dated this 22nd day of October, 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

- 14 -