Hicks v. Astrue

Filing 22

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 2/19/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTINA HICKS,

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

Case No. 4:12CV2357 HEA

ONION, 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 her 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

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).

Plaintiff was 48 years old at the time of the hearing. She did not finish high
school; she completed ninth grade, and has received a GED. The ALJ found
Plaintiff had the severe impairments of: depression, pancreatitis and cannabis
abuse, pursuant to 20 CFR 404.1520(c) and 416,920(c). At the June 1, 2011
hearing, Plaintiff testified that she worked at Mr. Good’s Subs preparing a little bit
of this and made sandwiches. She worked there three years. Plaintiff also worked
at J.B.Vending Company doing catering. Plaintiff worked at Ameristar as a cook.
Plaintiff was laid off of this job. She was able to lift 50 pounds at this job.
Plaintiff also had been the housekeeper for her grandmother. Plaintiff broke her
ankle when she worked at another food establishment. She was the kitchen
manager and sandwich dresser there. In 2009, Plaintiff applied for and received
unemployment. Plaintiff testified that she cannot complete simple tasks, she has to
get off her leg and lay on the heating pad. She cannot finish cooking dinner,
cannot drive anywhere because it “kills” her leg. Going up and down stairs to do
laundry is a struggle. She cannot carry the laundry up and down. She has to sit
down during cleaning the house.
Plaintiff testified she takes medications for high blood pressure consistently,
but it doesn’t help. Plaintiff has diabetes and controls it with insulin and oral
medication. Plaintiff smokes about four cigarettes per day. She had lost about 100
pounds. Because of her pancreatitis, Plaintiff was advised by her doctors not to

consume alcohol; she very rarely does so. Plaintiff takes medicine for high
cholesterol, which helps. She occasionally smokes marijuana, maybe once or
twice per month. Plaintiff has depression; she does go anywhere, she fights tears
all the time which ends up with a headache. She hears her children hollering for
her when they are not. Plaintiff takes Paxil for depression. Plaintiff sees a
psychiatrist and a counselor. She cannot stand being around anyone and has been
angry and screaming at her grandchildren. She has pain in her right leg, upon
which she had surgery to remove a mass. Plaintiff lies down to relieve the pain,
and tries not to walk around too much.
A vocational expert testified at the hearing. In response to the hypothetical
question of an individual who is 46 years old, able to perform a full range of light
work and can understand, remember, and carry out simple to moderately complex
instructions and tasks; can respond appropriately to supervisors and co-workers in
a task-oriented setting where contact with others is casual and infrequent, should
not work in setting which includes constant or regular contact with the public,
should not perform work that includes more than infrequent handling of customer
complaints , should not work in close proximity to alcohol or controlled
substances, the VE testified Plaintiff could not do her former jobs, but there were
other jobs available. The vocational expert testified that the jobs of a small parts
assembler, plastic products inspector and hand packager. Given another

hypothetical changing to a full range of sedentary work with the same
psychological restrictions, the VE testified that the same general type assembly
type job only at the sedentary level would be available; optical goods processor,
packaging and sealing of medical supplies
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 April 23, 2010. Plaintiff appeared and testified before
an ALJ on June 1, 2011. On July 29, 2011, the ALJ issued an unfavorable
decision. On October 23, 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 June
12, 2009, the alleged onset date. At Step Two, the ALJ found that Plaintiff had the
following severe impairments: depression, pancreatitis and cannabis abuse.
Plaintiff’s other impairments were not severe because they did not more than
minimally limit her ability to perform work related activities, alone or in
combination. The ALJ considered these impairments in assessing Plaintiff’s RFC.
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 light work as defined in 20 CFR 404.1567(b) and 416.967(b),
except she retains the capacity to understand, remember, and carry out simple to
moderately complex instructions and tasks; responds appropriately to supervisors
and coworkers in a task-oriented setting where contact with other is casual and
infrequent. Plaintiff should not work in a setting which includes constant/regular
contact with handling of customer complaints, and she should not work in close
proximity to alcohol and other controlled substances. At Step Four, the ALJ
determined that Plaintiff was not capable of performing past relevant work as a

cook, caterer kitchen manager, delicatessen manager or worker or fast food
worker. At Step Five, the ALJ found that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform. The ALJ concluded
that Plaintiff had not been under a disability as defined in the 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 the following
arguments: (1) the decision of the ALJ failed to articulate a legally sufficient
rationale for its conclusions regarding Residual Functional Capacity under the
standards contained in Singh and Lauer; (2) the hypothetical question to the
vocational expert does not capture the concrete consequences of Plaintiff’s
impairment and therefore, the response of the vocational expert testimony does not
represent substantial evidence upon which the decision may rest.
RFC
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
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.
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 evidence.” Cox v. Barnhart, 471
F.3d 902, 907 (8th Cir.2006).

In Lauer, the Eighth Circuit determined the ALJ failed to cite some medical
evidence in making his RFC determination. 245 F.3d at 704. In that case, the ALJ
rejected the treating physicians’ opinions and instead relied solely upon the opinion
of a prior treating psychiatrist in determining the claimant’s RFC. Id. However,
the prior treating psychiatrist was never asked to express an opinion about the
claimant’s ability to participate in work-related activities. Id. at 705. Therefore,
the prior psychiatrist’s opinion was not considered some medical evidence because
it did not relate to the claimant’s ability to participate in work-related activities. Id.
Thus, the ALJ erred in basing his RFC determination on this evidence. Id.
Lauer does not apply to this case. First, in Lauer the non-examining
physician’s opinion was not considered some medical evidence because the
physician was never asked to comment on the claimant’s ability to participate in
work-related activities. Here, the ALJ did rely on some medical evidence in
determining Plaintiff’s RFC. The ALJ in making his RFC determination
considered the entire record, including Plaintiff’s medical records, Plaintiff’s
testimony, and the conflicts between the two, and the medical opinions of record.
Plaintiff’s medical records support the ALJ’s RFC determination that Plaintiff
could perform unskilled work. For instance, the ALJ noted Plaintiff was feeling
fine with a low dose of Celexa in September 2008. Plaintiff received GAF scores
between and 50-55, even with cannabis abuse continuing to be a factor in

Plaintiff’s mental status evaluation in May 2011. Plaintiff had significant
improvements in functioning (from 45-50 GAF to 50-55 GAF in two weeks, and
An ALJ may consider GAF scores in determining a claimant’s RFC, however,
such scores are not considered dispositive. Halverson v. Astrue, 600 F.3d 922,
930–31 (8th Cir. 2010). Additionally, the ALJ noted that Plaintiff failed to show
up for scheduled appointments on June 13 and June 20, 2011.
Though the ALJ discredited much of Plaintiff’s complaints of the severity of
her mental impairments, the ALJ’s RFC determination reflects some of those
impairments. For instance, Plaintiff’s RFC is limited to only occasional contact
with the public, therefore incorporating Plaintiff’s alleged inability to work with
other people. Additionally, the ALJ’s limitation to light work with limitations
reflects Plaintiff’s mental impairment complaints. The ALJ also relied upon the
scant mental health treatment. Additionally, it should be noted that Plaintiff’s
claim of lack of sufficient funds to purchase medications is belied by the record
which establishes that Plaintiff was counseled on how to obtain medication for four
dollars per month and her continued use of cigarettes.
The ALJ’s reliance on Plaintiff’s treatment notes, her own testimony, and
Plaintiff’s scant mental health records, in addition to her failure to seek treatment
for her leg pain and the fact that no medical provided ever indicated that Plaintiff

was disabled and unable to perform any kind of work of constitutes substantial
evidence supporting the ALJ’s RFC determination.
The ALJ discussed his reasons for his conclusions. Because the ALJ
properly applied Polaski and provided valid reasons for discounting Plaintiff’s
testimony, the Court finds the ALJ did not err in discounting the most severe
subjective complaints of pain. McDade v. Astrue, 720 F.3d 994, 999 (8th Cir
2013)(“See Perks, 687 F.3d at 1093 (affirming ALJ's decision to discount
claimant's reports of disabling back pain where claimant's normal activities
included ‘meal preparation, mowing his yard on a riding mower, shopping for
food, and maintaining the family's finances.’)” Id.
Furthermore, the ALJ properly considered the medical evidence. Lauer v.
Apfel, 245 F.3d 700 (8th Cir. 2001); Singh v. Apfel, 222 F.3d 448 (8th Cir. 2000).
Hypothetical question
Plaintiff’s second challenge to the ALJ’s decision is that a response to a
hypothetical question that does not capture the concrete consequences of Plaintiff’s
impairment is not considered substantial evidence and therefore, in this matter, the
vocational expert testimony cannot be considered substantial evidence.
Plaintiff argues that because the counselor’s medical opinion that Plaintiff
would miss more than four days of work per month would be at least 20% of the
work month, and thus the VE’s testimony that Plaintiff is incapable of working.

As Defendant correctly argues, the ALJ is only bound to include in the
hypothetical question those impairments and limitations found to be credible. The
ALJ’s hypothetical question to the vocational expert needs to include only those
impairments that the ALJ finds are substantially supported by the record as a
whole. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (citing Lacroix v.
Barhart, 465 F.3d 881, 889 (8th Cir. 2006)).
Here, as noted above, the ALJ relied upon substantial evidence along with
some medical evidence in determining Plaintiff’s RFC. The hypothetical was then
based on that RFC, and was therefore proper and included the appropriate
limitations. The ALJ was not required to include limitations that he did not find
supported by the evidence, and therefore his rejection of the question posed by
Plaintiff’s counsel was not error.
Based on the entire record, including the medical evidence and the medical
opinions, the ALJ only included those limitations found to be credible. Gragg v.
Astrue, 615 F.3d 932, 940 (8th Cir. 2010) (“The hypothetical question posed by the
ALJ in this case incorporated each of the physical, mental, and cognitive
impairments that the ALJ found to be credible, and excluded those impairments
that were discredited or that were not supported by the evidence presented.”)
Because of the lack of credible evidence of those limitations of which Plaintiff
argues, the ALJ was not required to incorporate them into the hypothetical question

for the vocational expert. The ALJ properly included for consideration only the
limitations which were supported by the record.
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
Order is entered this same date.
Dated this 19th day of February, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE