Jones v. Astrue

Filing 19

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 E. Autrey on 2/12/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CLIFFORD S. JONES,
Plaintiff,
vs.
CAROLYN W. COLVIN1,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:12CV1225 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 Supplemental Security Income (SSI)
under Title XVI, 42 U.S.C. §1381, et seq. For the reasons set forth below, the
Court affirms the Commissioner's denial of Plaintiff's applications.
Facts and Background
On the date of the initial hearing, November 16, 2010 the Plaintiff was 37

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).

years of age. A second or supplemental hearing was conducted on July 5, 2011.
At that time the ALJ heard from the neurologist who performed a consultative
examination. Plaintiff lives with his wife. Plaintiff attended school up to the
eleventh grade and does not have a GED. His wife cuts his food up for him,
clothes him and ties his shoes. She also helps him with showering as well. Plaintiff
was previously employed as a truck driver, corrections officer and maintenance
road worker and has not been employed, or applied for employment, since the
onset date of August 23, 2008. The Plaintiff is left-hand dominant. The ALJ
found Plaintiff had the severe impairments of: left hand injury and obesity.
At the July 5, 2011 hearing, Plaintiff testified that since he injured his left
hand he has extreme pain and swelling in the fingers, hand and elbow. He also
testified the pain courses the bottom of his ear and across his neck. Plaintiff noted
the pain is so extreme and his fingers ache and become stiff preventing him from
even picking up a pencil to write. His elbow feels as if the funny bone was hit.
Plaintiff rated the pain in his fingers at 8 to 10; pain in his wrist at 10; pain in the
forearm as a 5 to 7; and pain in the elbow of 8 to 10.
Plaintiff testified that traveling exacerbates the pain and swelling and that the
stiffness makes it difficult to make a fist. The swelling is persistent and daily. He
spends six to eight hours in his recliner with his arm elevated and avoids using his
left hand. There was also testimony by Plaintiff that extremes of heat and cold

negatively impact his left hand. Cold causes a burning sensation and heat causes it
to heat up too quickly.
A vocational expert also testified during the hearing. The VE testified
regarding the past relevant work of the Plaintiff as a truck driver, corrections
officer, and maintenance road worker and that he was unable to perform any of
those jobs. The VE testified that Plaintiff could perform work that is limited to the
light and unskilled level.
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 July 26, 2011, the ALJ issued an unfavorable
decision. On May 4, 2012, 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 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
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 May 4,
2007, the alleged onset date. At Step Two, the ALJ found that Plaintiff had the
following severe impairments: left hand injury and obesity. 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.
Prior to Step Four, the ALJ found that Plaintiff had the residual functional
capacity to perform the full range of work at all exertional levels but with the
following non-exertional limitations: avoid lifting more than ten pounds with his
left hand, and avoid grasping, vibratory tools, climbing, or unprotected heights. He
must also be allowed to wear a splint on his left or scaffolds. At Step Four, the
ALJ determined that Plaintiff was not capable of performing past relevant work as
a truck driver, corrections officer, or maintenance road worker. At Step Five, the
ALJ found that considering the age, education, work experience, and residual
functional capacity, there are jobs that exist in the national economy that Plaintiff
can perform. Those jobs that Plaintiff could perform are: school bus monitor
(2,200 jobs statewide), office helper (1,850 jobs statewide), and deliverer (2,100

jobs statewide). The ALJ concluded that Plaintiff had not been under a disability
as defined in the Social Security Act.
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
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 three specific
arguments in support of his request for remand: (1) the ALJ failed to properly
consider the credibility of Plaintiff’s subjective complaints; (2) the ALJ failed to
assign proper weight to the opinions of acceptable medical sources; (3) the ALJ’s
RFC determination is not supported by substantial evidence of record.
The ALJ failed to properly consider the credibility of Plaintiff’s
subjective complaints.
In Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984),the court set out the
factors that the ALJ must use to analyze a claimant’s subjective complaints of
pain. These include, as appropriate, (1) the claimant’s daily activities; (2) the
duration, frequency and intensity of pain; (3) dosage, effectiveness, and side
effects of medication; (4) precipitating and aggravating factors; and (5) functional
restrictions. Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007) (This court will
not substitute its opinion for the ALJ’s, who is in a better position to gauge
credibility and resolve conflicts in evidence.”). When the ALJ articulates the

inconsistencies on which he relies in discrediting Plaintiff’s subjective complaints,
and when those inconsistencies are supported by the record, his credibility finding
should be affirmed. Hall v. Chater, 109 F.3d 1255, 1258 (8th Cir. 1997). “As is
often true in disability cases, the question was not whether [a claimant] was
experiencing pain, but rather the severity of [his] pain.” Hogan v. Apfel, 239 F.3d
958, 961 (8th Cir. 2001).
Here, Plaintiff was in his usual state of health until August 23, 2008,
when he slipped and fell on a wet floor in the workplace. He injured his left hand,
wrist, and arm. He sustained no injury to his right side. He testified that he
had pain scores ranging from eight to ten, on a scale of one to ten, in his fingers,
wrist, and elbow, and from five to seven in his forearm (Tr. 14, 43-44). He claimed
that any movement of his arm aggravated his symptoms and that he was at his
most comfortable when he could sit in his recliner six to eight hours a day with his
left arm propped up on a pillow (Tr. 44-46). Standing and walking also seemed to
exacerbate his upper extremity pain (Tr. 44). In addition he complained of
nighttime sleep being interrupted by pain every 15 minutes, resulting in no more
than a total of five hours sleep (Tr. 14, 48). Subsequent to his injury he was trated
conservatively with physical therapy and prescription pain medication, which
sometimes made him foggy and doze off. He was pending approval of carpel
tunnel surgery at the time of the hearing.

In analyzing his complaints the ALJ observed discrepancies between his
complaints and medical evidence in the record. The ALJ summarized in
considerable detail the medical evidence from the date of Plaintiff’s injury forward
(Tr. 15-19). The objective medical evidence in the record demonstrated that apart
from Plaintiff’s left upper extremity, “examinations of the claimant’s remaining
extremities and body systems was completely unremarkable/normal” (Tr. 19, 29091, 300-01, 357-59, 374-75). The ALJ noted findings from neurologist Choudhary
and the positive findings as to Plaintiffs left upper extremity only and concluded
that Plaintiff’s allegations that he had difficulty ambulating and sitting were
contrary to the evidence of record. The ALJ properly considered Plaintiff’s
subjective complaints in light of the medical opinions of record and concluded that
such inconsistencies negatively impacted his credibility.
The ALJ is not required to specifically address every Polaski factor in the
issuance of his opinion. In Samons v. Apfel, 497 F.3d 813 (8th Cir. 2007), the
court held that “we have not required the ALJ’s decision to include a discussion of
how every Polaski ‘factor’ relates to the claimant’s credibility. “Id. at 820. When
the ALJ articulates the inconsistencies on which he relied in discrediting
Plaintiff’s subjective complaints, and when those inconsistencies are supported by
the record, the credibility determination should be affirmed. See Eichelberger v.
Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (“We will not substitute our opinion

for that of the ALJ, who is in a better position to assess credibility.”); Baldwin v.
Barnhart, 349 F.3d 549, 558 (8th Cir. 2003) (“The credibility of a claimant’s
subjective testimony is primarily for the ALJ to decide, not the courts.” Credibility
questions concerning a plaintiff’s subjective testimony are “primarily for the ALJ
to decide, not the courts.” Id. The ALJ did so and properly upon the record before
him.
The ALJ failed to assign proper weight to the opinions of acceptable
medical sources.
Plaintiff asserts that the ALJ improperly discounted the October 2010
opinions of his treating physicians, David Myers, D.O., and Bashar Mohsen, M.D.
Dr. Myers stated the opinion that Plaintiff was “totally disabled” and that his
restrictions included his inability to sit/stand/walk long enough to complete an
eight-hour workday (Tr. 19, 364-66). Dr. Mohsen made similar findings and
conclusions (Tr. 19, 370-71).
Although a treating physician’s opinion concerning an applicant’s physical
limitations is entitled to substantial weight there are exceptions. The Eighth
Circuit has noted on more than one occasion that “[a]n ALJ may discount or even
disregard the opinion of a treating physician where other medical assessments are
supported by better or more thorough medical evidence, or where a treating
physician renders inconsistent opinions that undermine the credibility of such

opinions.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010), quoting Goff v.
Barnhart, 421 F.3d 785, 790 (8th Cir. 2005). In addition, greater weight is
generally given to the opinion of a specialist about medical issues related to his or
her area of specialty than to the opinion of a treating source who is not a specialist.
See Brown v. Astrue, 611 F.3d 941, 953 (8th Cir. 2010); 20 C.F.R. §§
404.1527(d)(5) and 416.927(d)(5). The ALJ assessment of weight was correct
based on the substantial evidence in the record and more specifically, there is
nothing in the record demonstrating the credentials of Dr. Myers as a specialist
relating to Plaintiff’s impairments. As to Dr. Mohsen, his treatment and
examination of is weak in an attempt to off much support to his conclusions and
recommendations, as noted in Defendants cross brief at page 10. Contrasting their
credentials and findings with those of Goldfarb, Schlafly and Choudhary, the Alj
appropriately weigh and evaluated the opinions based upon the substantial
evidence in the record. Wildman v. Astrue, 596 F.3d 959 (8th Cir.2010).
The ALJ’s RFC determination is not supported by substantial evidence
of record.
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 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.
Plaintiff contends that the ALJ’s RFC determination was not supported by
substantial evidence of record (Tr. 32-38) as the ALJ did not assign functional
limitations to his severe impairment of obesity. The burden is on the Plaintiff to
show the medical evidence of his disability. Plaintiff not list his weight as an
illness, injury or condition that limited his ability to work (Tr. 171). Plaintiff did
not allege any limitations due to his weight at the hearing (Tr. 41-50). None of the
medical sources indicated that Plaintiff’s weight restricted his capacity for work
activity above and beyond those limitations the ALJ incorporated into his RFC
determination. As a result, Plaintiff failed to meet his burden to prove that his
obesity imposed additional restrictions on his ability to work.

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 11th day of February, 2014.

_____________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE