Emht v. Colvin

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 Edward Autrey on 05/15/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NICHOLAS J. EMHT,

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Plaintiff,
vs.
CAROLYN W. COLVIN
Commissioner of Social
Security Administration,
Defendant.

No. 4:13CV1651 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. For the reasons set forth below, the Court
affirms the Commissioner's denial of Plaintiff's applications.
Facts and Background
Plaintiff appeared for the hearing on January 28, 2013, which related to a
limited period of between March 1, 2003 through October 2, 2008. Plaintiff
applied for benefits on June 22, 2006. An ALJ issued a final decision denying his
claim on January 19, 2008, but the Appeals Council remanded the decision for
further evaluation. A different ALJ issued a new decision on Plaintiff’s claim on
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January 5, 2011, finding him disabled as of October 2, 2008, but not before. The
matter was on remand from the appeals council here. Plaintiff was 68 years old at
the time of this hearing. At the time he protectively filed for benefits on June 22,
2006, he was 62 years of age. Here the ALJ found Plaintiff had the severe
impairment of Parkinson’s disease (20 CFR 404.1520 (c) ). At the January 28,
2013 hearing, Plaintiff testified that he had a twelfth grade education as well as
training as an electrician. Plaintiff also had training as an operating supervisor in a
power plant. He worked at McDonnell Douglas/Boeing and at Ameren. Plaintiff
also testified that he experienced continuous tremors since 1991 and that they
prevented him from typing and operating a computer well. He said that his feet
would “freeze” and he experienced hesitation upon taking steps. He stated he could
only walk a block without a break and experienced falls because of balance
problems. He testified he dropped things and had difficulty with buttons and
zippers. He said he also experienced fatigue requiring him to nap every day. He
admitted that during the relevant period, he was cooking, managing money,
shopping, cleaning, doing laundry, and driving.
A vocational expert testified at the hearing. In response to the hypothetical
question of an individual who is 68 years old, the vocational expert testified that a
hypothetical claimant with Plaintiff’s work experience and limitations could
perform Plaintiff’s past work as an operations supervisor. The vocational expert
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further noted that Plaintiff would be limited to occasionally handling precision
instruments, and under those circumstances Plaintiff could perform his past work
as an operations supervisor and other jobs. The VE also concluded upon inquiry
that Plaintiff should avoid working at heights as well as avoid climbing ropes,
ladders, and scaffolds.
Thereafter, on February 11, 2013, the ALJ entered her decision and findings
denying the claim for benefits. Plaintiff requested review by the appeals council
and review was denied on June 27, 2013. 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

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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.

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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).

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ALJ Decision
The ALJ utilized the five-step analysis as required in these cases. Here the
ALJ concluded that Plaintiff had not engaged in substantial gainful activity during
the period of the alleged onset date of March 1, 2003 through his last insured date
of September 30, 2010. The ALJ found at Step Two that Plaintiff has the severe
impairment of Parkinson’s Disease pursuant to 20 CFR 404.1571 et seq.
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, through the period
October 1, 2008, the Residual Functional Capacity of Plaintiff to perform medium
work as defined in 20 CFR 404.1567 (c) except Plaintiff must avoid climbing
ropes, ladders, and scaffolds. Plaintiff is also limited to occasional use of hands for
fine fingering and manipulation but can handle instruments/objects. He also must
avoid working at heights.
At Step Four it was the finding of the ALJ that Plaintiff was able to perform
past relevant work a supervisor of operations through October 1, 2008. The work
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did not require performing work that was precluded by his residual functional
capacity.
Finally Plaintiff was found to not be under a disability from March 1, 2003
through October 1, 2008 and therefore not entitled to any benefits.
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
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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
Plaintiff asserts the following as a basis to remand the decision of the ALJ.
First he asserts the finding of RFC by the ALJ is not supported by substantial
evidence. Plaintiff argues the manner in which the ALJ weighed the medical
opinions and supported the RFC findings are inconsistent with the requirements of
the law. Secondly, Plaintiff complains that the ALJ improperly found Plaintiff
could perform his past relevant work as an operations supervisor. On this point
plaintiff in essence asserts the ALJ decision does not mirror the conclusion set
forth by the vocational expert.
The ALJ’s RFC Findings is Supported by Substantial Evidence
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
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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;
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(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). The burden of persuasion to prove disability and
demonstrate RFC remains on the claimant. See Steed v. Astrue, 524 F.3d 872, 876
(8th Cir. 2008).
Here, the ALJ considered the credibility of Plaintiff’s alleged limitations. She
found Plaintiff’s claims of disabling limitations prior to October 2008 to be less
than fully credible for several reasons, a finding Plaintiff does not contest (Tr. 2526). See 20 C.F.R. § 404.1529 (“In determining whether you are disabled, we
consider all your symptoms, including pain, and the extent to which your
symptoms can reasonably be accepted as consistent with the objective medical
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evidence and other evidence.”). Despite his claims of difficulties with his hands
and feet, the ALJ found that Plaintiff, through his own testimony, could drive and
walk his dog during the relevant period (Tr. 26, 64-65, 73-74). An ALJ may
consider the nature of a claimant’s activities when evaluating a claimant’s
credibility. See Steed v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008).
Plaintiff stated to Dr. Rengachary in 2008 that problems with his gait were
of recent origin in relation to his visit to Dr. Rengachary. At his hearing he testified
that he would freeze and has had difficulty walking since 2003. He actually stated
that he could walk well and denied falling and freezing throughout the relevant
period. Such statements are inherently inconsistent. An ALJ may discount
testimony that is inconsistent with the medical record. See Gonzales v. Barnhart,
465 F.3d 890, 895 (8th Cir. 2006). Plaintiff complained of difficulty with his
hands, but the ALJ pointed out that Plaintiff told his doctors that his tremors were
fairly well controlled and at other times during the relevant period, Plaintiff
reported only occasional tremors.
If an impairment can be controlled by treatment or medication, it cannot be
considered disabling. See Collins ex. rel. Williams v. Barnhart, 335 F.3d 726, 72930 (8th Cir. 2008); 20 C.F.R. § 404.1529(c)(3)(iv)-(v). The ALJ considered
Plaintiff’s testimony that his medications helped resolve his symptoms. Plaintiff
repeatedly told his doctors that his medications helped significantly with his
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symptoms and he admitted on one occasion the medications stopped his tremors
(Tr. 405, 408, 410, 535).
The ALJ noted it to be significant Plaintiff’s employment ended in 2003
because of his retirement, rather than his impairments, and Plaintiff did not apply
for disability benefits for several years after his alleged onset date (Tr. 26, 267,
346). See Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005) (“Courts have found
it relevant to credibility when a claimant leaves work for reasons other than her
medical condition.”)
The ALJ even considered the illumination on the issues provided by
Plaintiff’s own treating neurologist, Dr. Weiss. This physician opined Plaintiff
could lift and carry more than 50 pounds occasionally and 20 pounds frequently
(Tr. 394). He also opined Plaintiff had no limitation in his ability to sit and that
Plaintiff could stand or walk for a total of four hours in an eight-hour workday (Tr.
393). The ALJ stated she gave controlling weight to portions of Dr. Weiss’s
opinion because he was a treating source and portions of his opinion were
consistent with the medical evidence (Tr. 25). The ALJ explained that she did not
adopt all of Dr. Weiss’s opinion for several reasons. She specifically found that
portions of his opinion were vague and not definitive. She also found portions to be
unsupported by other evidence in the record and the fact that Plaintiff did not
require a cane or other assistive walking device.
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The ALJ gave “good reasons” when discounting a treating source opinion
and is not required to discuss all of the factors for evaluating medical source
opinions. See 20 C.F.R. § 404.1527(d)(2). “‘[A]n appropriate finding of
inconsistency with other evidence alone is sufficient to discount’ a treating
physician’s RFC.” Davidson v. Astrue, 501 F.3d 987, 991 (8th Cir. 2007) (quoting
Goff v. Barnhart, 421 F.3d 785, 790-91 (8th Cir. 2005). The ALJ discounted some
of the opinions as they were not supported by Dr. Weis’s own treatment notes. An
inconsistency between a treating source’s opinion and his own treatment notes
weakens the reliability of his opinion. See Raney v. Barnhart, 396 F.3d 1007, 1010
(8th Cir. 2005). In addition, Dr. Weiss’s opinion was inconsistent with Dr.
Perlmutter’s finding that Plaintiff’s Parkinson’s disease was only stage two, which
generally entails only mild symptoms without balance impairment.
An ALJ may also discount an opinion because of internal inconsistencies.
See e.g. Perks v. Astrue, 687 F.3d 1086 (8th Cir. 2012). The ALJ here found Dr.
Weiss’s opinion that Plaintiff had a limited ability to balance on even level terrain
to be inconsistent with his opinion that Plaintiff did not need to use a cane or other
assistive device. These reasons were “good reasons” for giving less weight to
portions of Dr. Weiss’s opinion. The ALJ also explained that she was discounting
portions of Dr. Weiss’s opinions because they were inconsistent with his own
treating notes, and she specifically pointed out Dr. Weiss’s finding that Plaintiff
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had a steady gait and that Plaintiff’s tremor was only mild except for on one
occasion when it was “mild to moderate”. The ALJ pointed out that Dr. Perlmutter
found Plaintiff’s Parkinson’s to be stage two, which coincided with only mild
symptoms and no balance impairment. This evidence is inconsistent with Dr.
Weiss’s opinion that Plaintiff’s standing and walking were limited and that he
could only occasionally reach overhead.
Regarding a function-by-function evaluation, an ALJ is not required to
“mechanically list and reject every possible limitation.” McCoy v. Astrue, 648 F.3d
605, 615 (8th Cir. 2011). The ALJ finding that Plaintiff could perform “medium
work” was equivalent to finding that Plaintiff could perform each of the various
demands of medium work as set out in the Social Security rules and regulations.
To perform the full range of medium work, an employee must be able to frequently
lift 25 pounds and occasionally lift 50 pounds; stand, and walk “off and on” for 6
hours in an 8-hour workday, and sit whenever not standing or walking. SSR 83-10.
In finding Plaintiff could perform medium exertion work, the ALJ effectively
found that Plaintiff had no significant standing, walking, or sitting limitations. This
was consistent with the analysis of the evidence in which she noted Plaintiff’s gait
and balance were not significantly limited. The ALJ, therefore, properly
considered Plaintiff’s ability to perform the functional demands of work and

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without question substantial evidence in the record supports the ALJ’s RFC
finding.
Finding Plaintiff Could Perform His Past Relevant Work as an Operations
Supervisor was Proper
In order to determine whether a claimant can perform his past relevant work,
the ALJ must compare the claimant’s RFC with the demands of his prior work.
The ALJ may consult a vocational expert to aid in this determination. See Lewis v.
Barnhart, 353 F.3d 642, 648 (8th Cir. 2003). The ALJ must find the claimant “not
disabled” if the claimant can perform any of his past relevant work.
The ALJ questioned a vocational expert about a hypothetical claimant with
Plaintiff’s RFC. The vocational expert testified that a hypothetical claimant with
Plaintiff’s work experience and limitations could perform Plaintiff’s past work as
an operations supervisor. Since Plaintiff’s limitations would not prevent him from
performing the job of operations supervisor, the ALJ found that he could perform
his past relevant work and was not disabled at step four. It is true, however, that the
RFC listed in the ALJ’s decision is not a mirror image of the one posed to the
vocational expert but it is simply a drafting error which, considered in light of all
of the testimony and inquiry, is resolved in favor of the correctness of the decision
of the ALJ within the parameters of the law. Clearly, the ALJ intended the use of
the terms consistent with the conclusion of the vocational expert. The conclusions

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and findings of the ALJ are supported by substantial evidence on the record and
will not be disturbed.
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 15th day of May, 2014.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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