Cooper v. Colvin

Filing 23

OPINION, MEMORANDUM AND ORDER re: 22 15 : ORDERED that the decision of the Commissioner of Social Security is reversed. FURTHER ORDERED that this matter is remanded to the Commissioner for further consideration of the record. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. cc: Commissioner. Signed by District Judge Henry E. Autrey on 2/25/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DOUGLAS COOPER,
Plaintiff,
vs.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 4:13CV590 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
Plaintiff was 54 years old at the time of the hearing on January 19, 2012. The
onset date was determined to be February 14, 2009. As of the hearing date, he was
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).

living with his wife, two granddaughters, and a daughter in a single family
residence. Plaintiff completed the tenth grade and has some vocational training.
Plaintiff does not have a GED. He has been employed as a machinist and as a
laborer and also working side jobs as a laborer. The ALJ found Plaintiff had the
severe impairments of: Schizoaffective Disorder and Delusional Disorder pursuant
to 20 CFR 404.1520(c) and 416,920(c).
A vocational expert testified at the hearing. In response to the hypothetical
question the VE noted that Plaintiff, who is 54 years old, is able to perform a full
range of work at all exertional levels with some non-exertional limitations: he can
understand, remember, and carry out simple instructions and non-detailed tasks;
should not work in setting which includes constant or regular contact with the
public; and should not perform work that includes more than infrequent handling
of customer complaints. The VE testified Plaintiff could not perform his past
relevant work, but there were other jobs available in the national economy. The
vocational expert also testified that the jobs of hand packager, floor waxer, and
motor vehicle assembler were jobs Plaintiff could perform.
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. Plaintiff appeared and testified before an ALJ on
January 19, 2012. On March 15, 2012, the ALJ issued an unfavorable decision.

On January 29, 2013, 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 Decision
The ALJ utilized the five-step analysis as required in these cases. Here the
ALJ determined at Step One, the ALJ concluded that Plaintiff had not engaged in
substantial gainful activity since February 14, 2009 and that Plaintiff met the
insured status requirements through December 31, 2009. The ALJ found at Step
Two that Plaintiff has the severe impairments of Schizoaffective Disorder and
Delusional Disorder.
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 as set out in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520 (d), 404.1525, 404.1526, 416.920 (d), 416.925 and
416.926).
As required, prior to Step Four, the ALJ determined the Residual Functional
Capacity of Plaintiff to be as follows: to perform a full range of work at all
exertional levels with some nonexertioanl limitations: Plaintiff can understand,
remember and carry out at least simple instructions and non-detailed tasks, but
should not work in a setting which includes constant or regular contact with the
general public, and should not perform work which includes more than infrequent
handling of customer complaints.
At Step Four it was the finding of the ALJ that Plaintiff was unable to
perform any past relevant work.
Finally, 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
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 decision of the ALJ, Plaintiff argues: (1) The ALJ failed
to give sufficient weight to the opinion of the treating physician; and (2) The

decision of the ALJ was not supported by substantial evidence.
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 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.
A claimant's subjective complaints may not be disregarded solely because
the objective medical evidence does not fully support them. The absence of
objective medical evidence is just one factor to be considered in evaluating the
claimant's credibility and complaints. The ALJ must fully consider all of the
evidence presented relating to subjective complaints, including the claimant's prior

work record, and observations by third parties and treating and examining
physicians relating to such matters as:
(1) the claimant's daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant's pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant's functional restrictions.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him to reject the claimant's complaints.
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir.2005). “It is not enough that the
record contains inconsistencies; the ALJ must specifically demonstrate that he
considered all of the evidence.” Id. The ALJ, however, “need not explicitly discuss
each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.2004).
The ALJ need only acknowledge and consider those factors. Id. Although
credibility determinations are primarily for the ALJ and not the court, the ALJ's
credibility assessment must be based on substantial evidence. Rautio v. Bowen, 862
F.2d 176, 179 (8th Cir.1988).
Here, in evaluating the medical evidence relative to a determination of the
Plaintiff’s RFC, the ALJ credited the treating physician little weight without

applying the factors in 20 CFR §§404.1527 and 416.927. These factors include
examining the relationship, treatment relationship, supportability, consistency of
medical opinion, specialization of medical source and other factors brought to the
Commissioner’s attention bearing upon the weight medical opinion evidence
should be accorded. At the same time the ALJ indiscriminately gave little weight
to the opinions and records of Dr. Liss, she selectively found the doctor’s
assessment of the nature of Plaintiff’s mental illness acceptable to be her
conclusion of the appropriate severe impairment-Schizoaffective Disorder and
Delusional Disorder. The record the ALJ relied upon reflects that Dr. Liss noted
this in July of 2011 and that the behavior and statements of Plaintiff were
consistent with this conclusion. The ALJ failed to give specific reasons why the
treating physician’s conclusions were not medically acceptable and how they were
inconsistent with the record. Inaccuracies, incomplete analyses and unresolved
conflicts of evidence can serve as a basis for remand. Reeder v. Apfel, 214 F.3d
984, 988 (8th Cir. 2000). The notice of the determination or decision must contain
specific reasons the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight. SSR 96-2p . The ALJ gave “little weight” to the
opinion of Dr. Liss because his initial opinion was rendered the month after
Plaintiff’s first visit and was not supported by his own clinic note. She concluded it

was not supported by the claimant’s prior mental health records but failed to
explain why. The ALJ merely made this conclusory statement.
In concluding upon the applicable RFC here, the ALJ gave “some weight” to
the opinion of the non-examining State agency psychologist, Robert Cottone. The
ALJ adopted parts of the opinion and found a less restrictive RFC in the decision.
She did not believe a restriction to avoid intense or extensive interpersonal
interaction, or close proximity to coworkers, as opined by the non-examining
psychologist, was warranted.
Conclusion
After careful examination of the record, the Court finds the Commissioner's
determination as detailed above is not supported by substantial evidence on the
record as a whole, and therefore, the decision will be reversed and remanded for
further consideration.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of
Social Security is reversed.
IT IS FURTHER ORDERED that this matter is remanded to the
Commissioner for further consideration of the record.
A separate judgment in accordance with this Opinion, Memorandum and

Order is entered this same date.
Dated this 25th day of February, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE