Evans v. Astrue

Filing 8

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate judgment in accord with this Memorandum and Order is entered this date. Signed by District Judge Catherine D. Perry on 09/24/2012. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JERINA EVANS,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration,
Defendant.

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Case No. 4:11CV1198 CDP

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. Section 405(g) for judicial review of the
Commissioner’s final decision denying the application of Jerina Evans for
Disability Insurance Benefits under Title II of the Social Security Act. Because I
find that the decision denying benefits was supported by substantial evidence, I
will affirm the decision.
Procedural History
On January 7, 2009, Plaintiff applied for Disability Insurance Benefits under
Title II of the Social Security Act. Plaintiff received an unfavorable initial
determination on April 22, 2009. She requested a hearing with an Administrative
Law Judge (ALJ) on May 5, 2009. After a hearing, the ALJ issued an unfavorable

decision on May 12, 2010. Plaintiff requested review with the Social Security
Administration’s Appeals Council on June 22, 2010, but the Council declined to
review the case on June 1, 2011. Plaintiff has exhausted all administrative
remedies, and the decision of the ALJ stands as the final decision of the
Commissioner of the Social Security Administration.
Evidence Before the Administrative Law Judge
Plaintiff was born on July 5, 1947, and was 62 years old at the time of the
ALJ’s ruling. She has a 12th-grade education, and is a licensed cosmetologist. She
alleges a disability onset date of July 1, 2007, and the last date she held insured
status was December 31, 2008. Her most recent previous work was as a gate agent
for Trans World Airlines, but she was laid off in 2003, several years before her
alleged disability onset date.
Medical Records
Dr. Veronikis
Plaintiff was admitted to St. John’s Mercy Hospital on December 9, 2005
and treated for adrenal crisis and Addison’s disease, an affliction of the adrenal
gland that raises blood pressure, among other symptoms. Plaintiff saw Dr. Irini
Veronikis for a follow-up on June 12, 2006, in which Dr. Veronikis noted that
Plaintiff was doing well. Fifteen months later, on September 14, 2007, Plaintiff
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saw Dr. Veronikis for another follow-up visit, in which Dr. Veronikis observed
Plaintiff feeling anxious and experiencing tremors.
Dr. Wiethop
Plaintiff was treated by Dr. Wiethop on March 18, 2008, and Dr. Wiethop
noted that Plaintiff had a head tremor. Plaintiff saw Dr. Wiethop again on
September 10, 2008 for a follow-up on her Addison’s disease diagnosis. During
another follow-up appointment with Plaintiff on February 18, 2009, Dr. Wiethop
noted that Plaintiff’s current prescription medications included Xanax and
Levoxyl.
Dr. Mattson
Plaintiff was treated by neurologist Dr. Mattson on April 2, 2008, who noted
that Plaintiff’s head tremor had progressed over the last couple of years, and that
her hands were involved as well. He diagnosed essential tremor and prescribed
Primadone.
2009 Records
Plaintiff was treated by Dr. Anthony D’Angelo on March 27, 2009, who
diagnosed Plaintiff with dysphonia, a laryngeal spasm, and laryngopharyngeal
reflux.
Plaintiff was seen by consulting physician Dr. Patrick Hogan on April 13,
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2009. He confirmed the 2008 diagnosis of Addison’s disease and hypothyroidism,
and noted tremors of the voice, tongue, head, and foot.
On August 1, 2009, Plaintiff was seen at the emergency room of St. John’s
Mercy Hospital, complaining of neck pain and dizziness. She was given a
diagnosis of cervical strain and was released with medications and instructions for
stretching exercises.
Plaintiff sought physical therapy on September 3, 2009 for a shoulder injury
that had occurred several years previously at work, while she was shutting an
aircraft door. Plaintiff complained of a numbness in her right arm while sleeping
on her right side, and the therapist noted a 10 pound lifting restriction. However,
the therapist noted that Plaintiff’s range of motion improved over the course of
several visits.
Testimony
Plaintiff testified that before the onset of her tremors, she had been
employed as a cosmetologist and as an airline ticket agent. She testified that the
tremors are the physical problem keeping her from working. The tremors were
worse in 2008 than they are now, and Plaintiff attributed the improvement to a

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prescription for Propanolol from a Dr. Racette.1
Plaintiff testified that her affliction was essential tremor, and said her
doctors had told her it was “related to Parkinson’s disease.” Plaintiff stated that Dr.
Mattson had put her on two unnamed drugs that made her a zombie and made her
sick, and because of the adverse effects she stopped taking them.
Plaintiff testified that in 2008 she couldn’t do tasks such as buttoning her
shirt, handing someone a glass of water, or putting on make-up. She states that she
could not handle coins because her hands would shake too much. However, she
testified that using two fingers, she could type, use the internet, and pay bills
online. Plaintiff testified that she could drive short distances and could do ordinary
household chores like fixing dinner, putting dishes in the dishwasher, and
vacuuming.
Plaintiff testified that she could stand and sit, and that her ability to walk
was not affected by the tremors. She stated that the tremors were worse in the
morning and improved throughout the day.
ALJ’s Findings
The Commissioner found that, though Plaintiff had the severe impairment of

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Although Dr. Racette was contacted for records, none were ever provided to the Social
Security Administration.
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essential tremor and could not return to her previous work, she had a Residual
Functioning Capacity (RFC) that would allow her to do “medium work.” The
ALJ’s findings were that: (1) Plaintiff’s “date last insured” was December 31,
2008. (2) Plaintiff did not engage in substantial gainful activity from July 1, 2007,
her onset date, to her date last insured, December 31, 2008. (3) Plaintiff had a
severe impairment, essential tremor without diagnosis of Parkinson’s disease. This
impairment results in functional limitations that more than minimally restricted
Plaintiff’s ability to work. (4) Plaintiff did not have an impairment that met or
medically equaled a listed impairment in the SSA guidelines. (5) Plaintiff had the
residual functional capacity to perform medium work as defined in 20 CFR
404.1567(c), with the additional limitation that she avoid fine motor movements
with her hands. (6) Plaintiff is unable to return to her previous work.
(7) Plaintiff’s birth date is July 5, 1947, and thus she was an individual of
advanced age per 20 CFR 404.1563. (8) Plaintiff has a high school education and
speaks fluent English. (9) Transferable job skills were immaterial because the
medical-vocational guidelines were used to determine RFC. (10) Through the date
last insured, there were jobs that existed in significant umbers in the economy that
Plaintiff could have performed. (11) Plaintiff was not under a disability, as defined
by the Social Security Act, at any time during the period July 1, 2007 to December
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31, 2008.
The ALJ concluded that while Plaintiff’s impairment rendered her unable to
return to her past work, she was capable of medium work, and therefore was not
eligible for disability assistance. The ALJ noted that Plaintiff’s application was
inconsistent with her testimony regarding her daily activities, and her testimony
was not credible to the extent that it conflicted with the RFC determination. The
ALJ also noted that no treating or consulting physician had expressed an opinion
that Plaintiff was unable to work during the time period in question.
Legal Standard
On review, the Court determines if the Commissioner’s decision is
“supported by substantial evidence.” Onstead v. Sullivan, 962 F. 2d 803, 804 (8th
Cir. 1993). Substantial evidence is less than a preponderance, but is enough so that
a reasonable mind would find it adequate to support the ALJ’s conclusion. Prosch
v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). To determine whether the decision is
supported by substantial evidence, the Court is required to review the
administrative record as a whole 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;
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(4) The subjective complaints of pain and description of the
claimant’s physical activity and impairment;
(5) The corroboration by third parties of claimant’s physical
impairment;
6) The testimony of vocational experts based upon proper
hypothetical questions which fairly set out the claimant’s physical
impairment; and
(7) The testimony of consulting physicians.
Brand v. Secretary of Dept. of Health, Education and Welfare, 623 F.2d 523, 527
(8th Cir. 1980)(footnote omitted); Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir.
1989).
In evaluating the ALJ’s decision, the Court must consider both evidence that
supports the conclusion reached and evidence that casts doubt upon it.
Eichelberger v. Barnhart, 390 F.3d 584. An administrative decision is not reversed
if there are two possible conclusions to be reached and the Court simply would
have chosen a different outcome. Id. 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).
Disability is defined in the Social Security regulations as an “inability 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 has
lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 416(i)(1). In evaluating whether an applicant is disabled by
the standards of the Social Security Administration, the Commissioner must
evaluate the claim using a five-step process: (1) The Commissioner determines if
Plaintiff is presently engaged in substantial gainful activity. If so, Plaintiff is not
disabled. 20 C.F.R. § 404.1520(b). (2) The Commissioner determines if the alleged
impairment is sufficiently severe so as to significantly limit Plaintiff’s ability to
work. If not, Plaintiff is not disabled. Id. § 404.1520(c). (3) If impairment is
sufficiently severe, the Commissioner determines whether the impairment meets or
equals an impairment listed in the regulations. Id. § 404.1520(d). (4) If the
impairment does not meet or equal a listed impairment, the Commissioner
determines whether Plaintiff’s impairment prevents her from returning to her past
work. Id. § 404.1520(e). (5) If it does, the Commissioner determines whether any
substantial gainful activity exists which Plaintiff can perform. Id. § 404.1520(f).
In considering the subjective complaints in the testimony of Plaintiff, the
Commissioner must consider the factors set out in Polaski v. Heckler, 739 F.3d
1320 (8th Cir. 1984), which include (1) Plaintiff’s daily activities; (2) the duration,
frequency and intensity of the pain; (3) precipitating and aggravating factors; (4)
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dosage, effectiveness and side effects of medication; and (5) functional restrictions.
Id. at 1322.
A treating physician’s opinion should not ordinarily be disregarded and is
entitled to substantial weight. Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000).
However, the record must be considered as a whole, thus the treating physician’s
opinion does not automatically control. Prosch, 201 F.3d at 1013.
Discussion
A review of a denial of Social Security Benefits requires a Court to
determine whether there is substantial evidence on the record as a whole to support
the ALJ’s decision. 42 U.S.C. § 405(g). Here, Plaintiff asserts two reasons why the
ALJ’s decision should be overturned. First, Plaintiff argues that the finding of
residual functional capacity allowing her to do medium work is not supported by
the medical evidence in the record, and thus violates the requirement stated in
Singh and Lauer that “some” medical evidence support the finding. Second,
Plaintiff argues that vocational expert testimony was required, because her
limitation on fine motor movements is a significant non-exertional impairment.
In response to these assertions, the Commissioner maintains that while
Plaintiff had a severe essential tremor, this was not an impairment included in the
listed impairments that qualify a Plaintiff for disability automatically. Further, the
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ALJ found that Plaintiff had the RFC to perform medium work, but must avoid
fine motor movements. Because a limitation on fine motor movements did not
represent a ‘significantly diminished’ ability to perform medium work, the
testimony of a vocational expert was not required to be included in the record.
1.

Medical Evidence in the Record to Support the Residual Functional
Capacity Finding

Plaintiff emphasizes that “some medical evidence” must support the ALJ’s
RFC finding, citing Singh v. Apfel, 222 F.3d 448 (8th Cir. 2000), Lauer v. Apfel,
245 F.3d 700 (8th Cir. 2000), and Dykes v. Apfel, 223 F.3d 865 (8th Cir. 2000).
The Commissioner responds that the ALJ did, in fact, consider all of Plaintiff’s
credible symptoms in reaching the RFC determination.
The ALJ determined that Plaintiff’s abilities met the standard for medium
work, which requires lifting a maximum of 50 pounds at a time and frequent lifting
of up to 25 pounds. 20 C.F.R. § 404.1567(c). Medium work requirements include
sitting, standing, walking, lifting, carrying, pushing, and pulling. Social Security
Ruling 83-14 at 5-6. By her own admission, Plaintiff’s ability to stand, sit and walk
was not affected by the tremors.
Three doctors, Dr. Veronikis, Dr. Wiethop, and Dr. Mattson, concluded that
Plaintiff’s condition was normal except for the tremors. Dr. Veronikis indicated in
her notes that Plaintiff’s Addison’s disease, the original claim in filing for Social
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Security Disability, has been controlled with medication.
The ALJ found that while Plaintiff did have a medically determinable
impairment, she was nonetheless qualified to do medium work, notwithstanding
her impairment, on the strength of the opinions of her doctors. This determination
was reasonable given the medical evidence presented in the record.
2.

Failure to Call Vocational Expert

The ALJ found that Plaintiff is capable of engaging in medium work, per the
medical-vocational guidelines, with the caveat that she must avoid work involving
fine motor movements. Plaintiff asserts that the restriction on fine motor
movements is a significantly diminishing limitation on her ability to work, and
therefore the ALJ erred by referring only to the medical-vocational guidelines
instead of the testimony of a vocational expert. The Commissioner responds that
fine fingering is not a significant component of medium work, and therefore, this
limitation does not significantly diminish the pool of jobs available to Plaintiff.
Plaintiff argues, citing Thompson v. Bowen, 850 F.2d 346 (8th Cir. 1988),
and Lucy v. Chater, 113 F.3d 905 (8th Cir. 1997), that because her essential tremor
is significant in nature, the testimony of a vocational expert is automatically
required. This is a mischaracterization of the case law. Thompson states that “an
ALJ may use the Guidelines even though there is a non-exertional impairment if
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the ALJ finds, and the record supports the finding, that the non-exertional
impairment does not diminish Plaintiff’s residual functional capacity to perform
the full range of activities listed in the Guidelines.” Thompson, 850 F.2d at 349-50.
Lucy uses the same language, verbatim. See also Shannon v. Chater, 54 F.3d 484,
488 (“If the ALJ finds that the claimant’s non-exertional impairment does not
diminish or significantly limit the claimant’s residual functional capacity to
perform the full range of Guideline-listed activities, the ALJ may apply the
Guidelines in spite of a non-exertional impairment.”). Here, because the ALJ
found, and the record supports the finding, that Plaintiff’s essential tremor did not
diminish her ability to perform medium work, use of the medical-vocational
guidelines was sufficient and the testimony of a vocational expert was not required.
Furthermore, the ALJ’s determination that a limitation on fine motor
movements did not significantly diminish Plaintiff’ ability to engage in medium
work is supported by several prior Social Security Rulings to this effect. Social
Security Rulings are treated with deference by the court; where a reasonable
interpretation of the statute is offered, it is lawful. Barnhart v. Walton, 535 U.S.
212, 224 (2002). Limitations on finger movements are classified as a nonexertional impairment. 20 C.F.R. § 404.1569(c)(1)(vi); see also Social Security
Ruling 85-15 at 19; Social Security Ruling 83-10 at 3. Here, the Social Security
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Rulings are consistent with each other, and are a reasonable interpretation of the
statute. Barnhart, 535 U.S. at 224. Plaintiff was determined to have a nonexertional impairment. Once Plaintiff is determined to be capable of the primary
strength requirements of sedentary, light or medium work, such as sitting, standing
and walking, a further determination is required as to the number of jobs available
to Plaintiff, given her non-exertional impairment. Social Security Ruling 83-14 at
5-6. In medium work, “[u]se of the arms and hands is necessary to grasp, hold, and
turn objects, as opposed to the finer activities in much sedentary work, which
require precision use of the fingers...” Social Security Ruling 83-10 at 15; see also
SSR 83-14 at 14 (stating that “most unskilled medium jobs require gross use of the
hands to grasp, hold, and turn objects rather than use of the fingers for fine
movements of small objects.”). Here, Plaintiff was determined to have no
restrictions on her ability to sit, stand or walk, and therefore she was capable of
medium work. Further, multiple Social Security Rulings indicate that fine
fingering is not a major component of medium work, and thus does not
significantly diminish the pool of jobs available to Plaintiff. Therefore, testimony
from a vocational expert was not required.
Accordingly,

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IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed.
A separate judgment in accord with this Memorandum and Order is entered
this date.

__________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 24th day of September, 2012.

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