Cronin v. Astrue

Filing 28

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 andOrder is entered this same date. Signed by District Judge Henry E. Autrey on 02/18/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RONNY D. CRONIN,
Plaintiff,
vs.
CAROLYN W. COLVIN1
Commissioner of Social
Security Administration,
Defendant.

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Case No. 4:12CV1736 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

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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).
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When Plaintiff appeared to testify at the hearing he was 49 years old. He has
asserted that the onset date of his disability is February 1, 2008. Plaintiff has had
self-training as a dump truck driver and carpenter. The last time he worked as a
dump truck driver was 2007. The ALJ found Plaintiff had the impairments of:
stroke residuals, diabetes, and esophageal ulcer.
During the October 25, 2010, hearing Plaintiff , who has an eleventh grade
education, appeared with counsel and testified that he lives in a residence with his
70 year old mother. He furthered testified that he takes his medication faithfully
and has done so over the last ten years or so. he does not drink anymore and that
the last time he imbibed was about eight months prior to the hearing date. Plaintiff
testified that he awakes around 8:00 a.m., takes his medication and watches
television. He tries to help his mother with household duties but does not get very
far because he is weak on the left side. Plaintiff gave testimony that he can sit for
30 minutes, stand for 15 minutes, can walk short distances and can lift a gallon of
milk and place it in the refrigerator.
The 70 year old mother of the Plaintiff also testified. In large part she gave
testimony in support of her son, the Plaintiff, and that he had slurred speech.
A vocational expert, Ms. Gonzalez, also testified. The VE testified, in
relation to an onset date of February 1, 2008, and in response to a hypothetical that
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Plaintiff could not perform his past relevant work as it was all either medium
heavy or very heavy. The VE also concluded from the hypothetical question that
Plaintiff’s residual functional capacity allowed him to perform light work except
that the work most accommodate a speech impairment as his speech is
understandable but requires additional effort on his part.
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 January 5, 2011 resulting from a hearing conducted on
October 25, 2010. On or about March 7, 2011, Cronin timely filed a Request for
Review of Hearing Decision. On July 26, 2012, the Appeals Council denied his
Request for Review. 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
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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

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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

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significant number of jobs within the national economy. Id.; Brock v. Astrue, 674
F.3d 1062, 1064 (8th Cir.2012).
ALJ’s Decision
In the application of the five-step analysis, the ALJ in this case determined at
Step One, the ALJ concluded that Plaintiff had not engaged in substantial gainful
activity since February 1, 2008. The ALJ found at Step Two that Plaintiff has
severe impairments including stroke residuals, diabetes and esophageal ulcer.
At Step Three, the ALJ found that Plaintiff does not suffer from an
impairment or combination of impairments of a severity that meets or medically
equals the required severity of a listing.
Prior to Step Four, the ALJ determined the RFC of Plaintiff to be as follows:
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except
that the work must accommodate a speech impairment: his speech is
understandable but he must employ additional effort to produce words.
The ALJ found that Plaintiff “lacks credibility,” and further stated that the
record “does not show a need for treatment other than medication, such as a cane.”
(Tr.14).
At Step Four, the ALJ found he was unable to perform any past relevant
work.
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At Step Five, the ALJ found that Plaintiff could perform other work that
existed in significant numbers in the national economy. The ALJ, therefore, found
Plaintiff not disabled, and denied the benefits sought in his Applications.
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 ALJ’s
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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)). 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 erred in determining the RFC by improperly evaluating the
treatment records, and by failing to include sufficient limitations arising from
Plaintiff’s conditions including additional sitting, standing and walking limitations,
use of a cane, and mental limitations arising out of his stroke; (2) the ALJ erred in
assessing credibility by making insufficient findings and by failing to follow the
applicable cases and regulations.
The ALJ erred in assessing credibility by making insufficient findings and by
failing to follow the applicable cases and regulations.
The ALJ in this case was bound under the law to properly consider the
objective medical evidence, medical opinion evidence, Plaintiff’s treatment and
response to treatment, his daily activities, and other evidence reflecting his
credibility. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) “The ALJ was
not required to discuss methodically each Polaski consideration, so long as he
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acknowledged and examined those considerations before discounting [the
claimant’s] subjective complaints.” Lowe v. Apfe, l 226 F.3d 969, 972 (8th Cir.
2000), citing Brown v. Chater, 87 F.3d 963, 966 (8th Cir.1996). The objective
medical evidence failed to demonstrate a disabling condition and did not support
Plaintiff’s subjective complaints. The bulk of the medical evidence reflects a
period of time prior to Plaintiff’s amended date of disability onset. (Tr. 476-955).
That evidence indicates that Plaintiff’s diabetes was not controlled, but indicates
that the lack of control was primarily due to Plaintiff’s noncompliance (Tr. 536,
543, 739, 749, 805, 807). It is also noteworthy that prison records indicate Plaintiff
believed he would qualify for a medical parole if his diabetes was uncontrolled (Tr.
534). During the period at issue, Plaintiff’s diabetic condition improved after his
release from prison, but the record reflects he continued having difficulties with
compliance (Tr. 971, 982-84, 991-98, 1169-1182). Plaintiff’s noncompliance with
treatment was properly considered as one credibility factor. See Holley v.
Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001).
The ALJ properly noted that medical evidence from Volunteers in Medicine for
the period from 2008 to 2010 reflected complaints of left-side weakness, but no
examination was conducted to assess the degree of weakness, and slurred speech
was documented on only one occasion; and treatment notes were otherwise
unremarkable except for abnormal blood sugar levels on occasion, which was
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usually due to noncompliance with diabetic regimen (Tr. 971, 982-84, 991-98,
1169-1182). A lack of supporting objective medical evidence may be used as one
factor in evaluating Plaintiff's credibility. See Curran-Kicksey v. Barnhart, 315
F.3d 964, 968 (8th Cir. 2003). A claimant’s statement about pain or other
symptoms does not, by itself, establish disability. See 20 C.F.R. §§ 404.1529 and
416.929 (2013). There must be medical signs and laboratory findings showing a
medical impairment which could reasonably be expected to produce the symptoms
alleged and which, when considered with all of the other evidence, would lead to
the conclusion that the claimant is disabled. Id.
There are other inconsistencies with the claimed disability in the record which
also reflected poorly on Plaintiff’s credibility as noted by the ALJ. Plaintiff’s
activities of daily living show that he prepared meals, watched television, went
grocery shopping, and had a girlfriend (Tr. 219-220). Plaintiff alleged that he
could not drive due to vision and motor skill difficulties, but the record shows that
he lost his driver’s license for leaving the scene of an accident and subsequently
had it reinstated, without restrictions (Tr. 220, 1038, 1040, 1065). There is no
medical evidence that a cane was medically necessary. 859). The evidence since
his amended date of disability onset failed to show that a cane was medically
necessary. Vocational rehabilitation records also show that he walked with a limp,
but there is no indication that he required a cane (Tr. 1042, 1047). The record also
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showed that Plaintiff sought work during his alleged period of disability (Tr. 27,
33-34, 37-38, 1032-1165). Plaintiff’s search for work while alleging disability
contradicts his claim for disability. See Clark v. Shalala, 28 F.3d 828, 830 (8th Cir.
1994); see also Salts v. Sullivan, 958 F.2d. 840, 846 n.8 (8th Cir. 1992).
Because the ALJ articulated the inconsistencies on which she relied in
discrediting Plaintiff's testimony regarding his subjective complaints, and because
the credibility finding is supported by substantial evidence on the record as a
whole, the ALJ’s credibility finding will be affirmed. See Pena v. Chater, 76 F.3d
906, 908 (8th Cir. 1996); Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992).
The ALJ may discount claimants’ complaints if there are inconsistencies in the
record as a whole, and “[w]e will defer to an ALJ’s credibility finding as long as
the ALJ explicitly discredits a claimant’s testimony and gives a good reason for
doing so.” Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (internal quotation
omitted).
The ALJ erred in determining the RFC by improperly evaluating the
treatment records, and by failing to include sufficient limitations arising from
Plaintiff’s conditions including additional sitting, standing and walking
limitations, use of a cane, and mental limitations arising out of his stroke.
Plaintiff claims that the ALJ’s residual functional capacity finding (RFC) was
improper and failed to include sufficient limitations arising from his conditions,
including additional sitting, standing, and walking limitations; his use of a cane;
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and mental limitations resulting from his stroke. Plaintiff’s Brief p. 15. The ALJ
bears “the primary responsibility for assessing a claimant’s [RFC] based on all
relevant evidence.” Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000). It is the
responsibility of the ALJ to determine Plaintiff’s RFC based on all of the relevant
evidence including medical records, observations of treating physicians and others,
and Plaintiff’s own description of his limitations. See 20 C.F.R. §§ 404.1545,
404.1546, 416.945, and 416.946 (2013). The ALJ in this case discussed the
evidence of record and properly accounted for all of Plaintiff’s credible limitations
in her RFC finding.
Based upon a review of the entire record, the ALJ found that Plaintiff
maintained the RFC to perform light work as defined in the Commissioners
regulations, with the additional limitation that work performed must accommodate
a speech impairment in that his speech is understandable, but he must employ
additional efforts to produce words (Tr. 12). The evidence supports the ALJ’s
RFC finding. Light work involves lifting 10 pounds frequently and 20 pounds
maximum and a good deal of standing or walking or, when the job involves
primarily sitting, pushing and pulling or arm or leg controls is involved. See 20
C.F.R. §§404.1567 and 416.967 (2013). The vocational rehabilitation records, in
considering his left side weakness and speech difficulties, showed Plaintiff should
pursue a hands-on light exertional level job (Tr. 1034, 1052, 1059). Performance
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during onsite work assessments was consistent with the ability to perform light
exertional work (Tr. 1075-1103). His ability to lift, carry, push, pull, and stand
was “good” and he had no vision difficulties (Tr. 1075-76, 1085, 1095-96).
Additionally, he did not use an assistive device for walking (Tr. 1077). The record
also shows that Plaintiff’s strengths included his basic reading comprehension,
attention to detail, work speed with hands-on tasks, and an ability to complete tasks
(Tr. 1061-62). Furthermore, the results of a functional abilities assessment
reflected abilities consistent with light work (Tr. 1105-1115). Plaintiff also had a
valid driver’s license with no restrictions (Tr. 1065). The record also shows that
Plaintiff’s criminal history, was considered his most “significant barrier” to
obtaining employment (Tr. 1036, 1037, 1039).
Plaintiff claims that the ALJ failed to adequately weigh the opinion of Arnold
Brody, M.D. A treating physician’s opinion is entitled to controlling weight only
if it is well-supported by medically acceptable clinical and laboratory tests and is
not inconsistent with the other substantial evidence of record. See 20 C.F.R. §§
404.1527 and 416.927 (2013); Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir.
2000); Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000). The ALJ properly
granted “some ” weight to Dr. Brody’s opinion (Tr. 13). There is no objective
medical evidence supporting Dr. Brody’s opinion as to substantial limitations. Dr.

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Brody’s opinion was also inconsistent with Plaintiff’s actual performance during
testing and worksite assessments (Tr. 1075-1115).
Plaintiff has an unsupported belief that the ALJ was obligated to order a
consultative mental functioning exam. The ALJ was under no such obligation. It
was Plaintiff’s burden to prove disability by providing evidence showing that he is
disabled. See 20 C.F.R. §§404.1512, 416.912 (2013). He failed to do so. The ALJ
was not obligated to order a consultative examination, particularly in light of
existing evidence demonstrating Plaintiff’s mental functioning in work-type
settings.
Based upon his review of the entire record, as discussed above, the ALJ
properly determined that Plaintiff’s subjective complaints lacked credibility and
formulated an RFC finding which was supported by the evidence of record. The
ALJ presented a hypothetical question to a qualified vocational expert at the
administrative hearing based upon the RFC finding (Tr. 41). In response, the
vocational expert testified that there were unskilled light exertional jobs existing
in significant numbers in the national economy that the individual could perform,
such as mail clerk, hand presser, and cleaner (Tr. 42). A hypothetical question is
properly formulated if it sets forth impairments “supported by substantial evidence
in the record and accepted as true by the ALJ.” Guilliams v. Barnhart, 393 F.3d
798, 804 (8th Cir. 2005) citing Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001).
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Discredited complaints are properly excluded from a hypothetical question so long
as the ALJ had reason to discredit them. See Tucker v. Barnhart, 363 F.3d 781,
784 (8th Cir. 2004). The expert’s testimony that Plaintiff could perform work
existing in significant numbers in the national economy constitutes substantial
evidence in support of the ALJ’s determination. See Miller v. Shalala, 8 F.3d 611,
613-14 (8th Cir. 1993); Andres v. Bowen, 870 F.2d 453, 455-56 (8th Cir. 1989).
The ALJ’s findings were clearly based upon the record as a whole. The ALJ
summarized Plaintiff’s testimony regarding his limitations, the treatment notes
regarding his impairments, the medical opinions in the record, and the ALJ’s
specific credibility findings. The ALJ applied the proper standard to the facts and
the determination of Plaintiff’s RFC and his ability to perform his past relevant
work is supported by the record as a whole.
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

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Social Security is affirmed.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 18th day of February , 2014.

_______________________________-

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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