Kasumovic v. Colvin

Filing 16

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 02/13/2015. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DZEMILA KASUMOVIC,
Plaintiff,
v.

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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No. 4:14cv350 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 and supplemental security income
(SSI) under Titles II and XVI of the Social Security Act (Act), 42 U.S.C. §§ 401434, 1381-1385 . For the reasons set forth below, the Court will affirm the
Commissioner's denial of Plaintiff's applications.
Facts and Background
Plaintiff was 50years old at the time of the hearing. She has a limited
education and has had no additional education since she has been in the United
States. Plaintiff had past work experience as a shipping and receiving clerk and
store laborer. Plaintiff lives with her son, daughter-in-law, and granddaughter.

Plaintiff testified that she has depression and she has crying spells from time
to time. She further testified that her trouble sleeping at night affects her during the
daytime as she has to sleep during the day. Her doctors advised her to not take her
medicine as needed but to take it daily. The medicine she does take makes her feel
exhausted and tired.bt that if she stopped talking to it, she would cry too much and
think of killing herself.
She drives, but is only able to drive five miles. She drives one or two times
per week. She testified she sometimes drives her granddaughter to school, and will
drive to visit her brother and to doctor’s appointments. On the days when she does
not drive her granddaughter to school, her daughter-in-law does the driving. The
doctor’s office is three miles from her house.
She testified she can lift twenty pounds, can stand for ten minutes at a time
before she must sit due to back pain, can sit for thirty minutes without changing
positions or standing up, and can walk for 20-30 minutes at a time.
Plaintiff stated that she has type II diabetes which causes tingling in her
hands and arms. She stated she has problems gripping objects and recently dropped
coffee all over herself as she was carrying it to the table. Plaintiff testified that her
left hand is better than her right and she is right hand dominant.
The ALJ found Plaintiff had the severe impairments that included diabetes,
obesity, post-traumatic stress disorder (PTSD), anxiety, and depression. The ALJ
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found she did not have an impairment or combination of impairments listed in or
medically equal to one contained in 20 C.F.R. part 404, subpart P, appendix 1.
Avocational expert testified in order to assist the ALJ in reaching a decision.
The ALJ concluded, based upon inquiry of the ALJ that Plaintiff retained the RFC
to perform medium work but needed to avoid exposure to heights and avoid
climbing ladders, ropes, and scaffolds. She was also limited to no more than
frequent fingering and fine manipulation and could perform work involving
understanding, remembering, and carrying out simple instructions and non-detailed
tasks. The ALJ found that Plaintiff’s impairments would not preclude her from
performing her past work as a stores laborer, as well as other work that exists in
significant numbers in the national economy, including work as an industrial
cleaner, dining room attendant, and kitchen helper. The ALJ therefore concluded
Plaintiff was not disabled.
The Appeals Council denied her request for review on January 8, 2014.The
decision of the ALJ now stands as the final decision for review by this court.
Statement of Issues
The issues in a Social Security case are whether the final decision of the
Commissioner is consistent with the Social Security Act, regulations, and
applicable case law, and whether the findings of fact by the ALJ are supported by
substantial evidence on the record as a whole. Here the Plaintiff asserts the ALJ did
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not properly evaluate Plaintiff’s severe impairments, the ALJ did not properly
evaluate the medical opinions, the ALJ did not properly assess Plaintiff’s RFC or
correctly use Vocational Expert testimony to find Plaintiff not disabled.
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.
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§§ 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
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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).
RFC
A claimant's Residual Functional Capacity (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
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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.
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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).
ALJ Decision
The ALJ here utilized the five-step analysis as required in these cases. The
ALJ determined at Step One that Plaintiff had not engaged in substantial gainful
activity during the period from her alleged onset date of March 21, 2009. The ALJ
found at Step Two that Plaintiff had the severe impairments of diabetes, obesity,
posttraumatic stress disorder, anxiety, and depression.
At Step Three, the ALJ found that Plaintiff did not suffer from an
impairment or combination of impairments that meets or medically equal the
severity of one of the listed impairments 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).
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As required, prior to Step Four, the ALJ determined the Residual Functional
Capacity of Plaintiff to perform medium work except she is limited to jobs
involving only routine repetitive tasks. The ALJ further concluded the Plaintiff
could lift and/or carry 50 pounds occasionally and 20 pounds frequently. ALJ
Pappenfus also found that Plaintiff could stand for six hours out of an eight hour
day and sit for six hours out of an eight hour day. The ALJ also noted Plaintiff
should avoid climbing ladders, ropes, and scaffolds. Kasumovic was found to be
limited to no more than frequent (66 percent of the workday) fingering and fine
manipulation. It was also determined that Plaintiff is able to understand, remember
and carry out at least simple instructions and non-detailed tasks. It was also found
that she should avoid the hazards of height.
At Step Four it was the finding of the ALJ that Plaintiff was capable of
performing past relevant work as a stores laborer and that this type work does not
require the performance of work-related activities precluded by the claimants
residual functional capacity..
Finally, at Step five, the ALJ found, considering Plaintiffs’ age, education,
work experience, and residual functional capacity, that Plaintiff could perform
other work that existed in significant numbers in the national economy. ALJ
Pappenfus concluded as well that the Vocational Expert’s testimony was consistent
with the information set out in the Dictionary of Occupational Titles. The ALJ,
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therefore, found Plaintiff not disabled, and denied the benefits sought in her
Applications.
Judicial Review Standard
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
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860, 863 (8th Cir.2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th
Cir.2005)).
Courts 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). The Eighth
Circuit has repeatedly held that a court should “defer heavily to the findings and
conclusions” of the Social Security Administration. Hurd v. Astrue, 621 F.3d 734,
738 (8th Cir. 2010); Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001).
Discussion
A. Did the ALJ properly evaluate Plaintiff’s severe impairments?
The essence of Plaintiff’s position on this query is that the ALJ improperly
evaluated the severity of her impairments because the ALJ did not analyze her
mental impairment in combination with her other impairments. The record,
however, demonstrates that the ALJ did indeed properly evaluate and assess her
impairments.
The ALJ discussed each of Plaintiff’s alleged impairments, including
diabetes, obesity, PTSD, anxiety, depression, back pain, facial paralysis,
abdominal pain, and chest pain (Tr. 11-13). Based on the medical evidence, she
found that Plaintiff had the severe impairments of diabetes, obesity, PTSD,
anxiety, and depression. She properly found that the medical evidence did not
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establish that Plaintiff had severe back pain, facial paralysis, abdominal pain, or
chest pain. ALJ Pappenfus included specific limitations in the RFC assessment
based upon Plaintiff’s mental impairments. She indicated that she considered all of
Plaintiff’s non-severe impairments. She separately discussed all of Plaintiff’s
impairments in the ALJ decision. Consistent with the holding in Martise v. Astrue,
641 F.3d 909, 923 (8th Cir. 2011), the ALJ fulfilled her duty to evaluate the
severity of Plaintiff’s impairments in combination.
As to the findings relating to Plaintiff’s mental impairments, the ALJ noted
that Plaintiff’s mental impairments improved with medication and she was less
anxious. Plaintiff, in her own testimony, noted that her medication was effective
and that her symptoms reappeared when she stopped taking her medication. See
Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (“If an impairment can be
controlled by . . . medication, it cannot be considered disabling.”) ( quoting Brown
v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004)).
The record patently supports the conclusion that the ALJ properly evaluated
Plaintiff’s impairments for severity.
B. Did the ALJ properly evaluate the medical opinions?
Plaintiff asserts the ALJ gave less than controlling weight to the opinion of
treating psychiatrist, Jaron Asher, M.D. and that the evidence supports Asher’s

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opinion. As a consequence, in Plaintiff’s opinion, controlling weight should have
been placed upon Asher’s opinions.
It is axiomatic that an ALJ must give a treating physician’s opinion
controlling weight if it is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial
evidence in the record. See Brace v. Astrue, 578 F.3d 882, 885 (8th Cir. 2009)
(citation omitted). If the opinion fails to meet these criteria, the ALJ need not
accept it. See id. The Eighth Circuit has repeatedly recognized that although a
treating physician’s opinion is generally entitled to substantial weight, such an
opinion “does not automatically control in the face of other credible evidence on
the record that detracts from that opinion.” See Brown v. Astrue, 611 F.3d 941, 951
(8th Cir. 2010) (quoting Heino v. Astrue, 578 F.3d 873, 880 (8th Cir. 2009)). “An
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)).
Upon reviewing the record and the statements and conclusions of the ALJ it
is clear that they are supported by the record in that the medical reports cited by
Plaintiff do not contain opinions consistent with the requirements of 20 C.F.R. §§
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404.1527(a)(2), 416.927(a)(2). They are treatment records only but were
considered by the ALJ along with the other medical evidence in the record as they
related to Plaintiff’s mental impairments. Dr. Asher’s records indicated that the
Plaintiff was improving with medication and that her impairments were not
disabling. Her GAF scores were in the moderate range. Where an impairment can
be controlled by medication, it cannot be considered disabling. Brown v. Barnhart,
390 F.3d 535, 540 (8th Cir. 2004).
The ALJ properly considered Dr. Asher’s treatment records, along with the
other medical evidence of record, in evaluating Plaintiff’s claim. The ALJ did not
err in not assigning great weight to Dr. Asher’s treatment records.
C. Did the ALJ properly assess Plaintiff’s RFC and rely upon Vocational Expert
testimony to find Plaintiff not disabled?
Plaintiff here asserts the ALJ’s RFC assessment was deficient because the
ALJ did not include limitations on concentration, persistence, or pace. Plaintiff
also states that because the ALJ’s RFC assessment was deficient, the hypothetical
question to the Vocation Expert was also deficient. Therefore, Plaintiff suggests
the testimony that she could perform other work does not constitute substantial
evidence supporting the ALJ’s finding of no disability.

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It is the claimant’s burden to prove her RFC. See Goff v. Barnhart, 421 F.3d
785, 793 (8th Cir. 2005) (citing Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir.
2000)). It is the ALJ’s responsibility to determine RFC based on all the relevant
evidence, including medical records, observations of treating physicians and
others, and the claimant’s description of her limitations. See Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (citing Anderson v. Shalala, 51 F.3d 777, 779 (8th
Cir. 1995)). The ALJ considered the medical and non-medical evidence and
found that Plaintiff retained the RFC to perform medium work but needed to avoid
climbing ladders, ropes, and scaffolds. Plaintiff could perform no more than
frequent fingering and fine manipulation and needed to avoid heights. She was able
to understand, remember, and carry out at least simple instructions and nondetailed tasks.
A hypothetical based upon Plaintiff’s age, education, work experience, and
RFC was put to the Vocational Expert. The hypothetical necessarily included
moderate limitations of the Plaintiff as this was concluded in the step two
evaluation process. There is no error in such inclusion. The ALJ’s hypothetical
question to the expert accurately encompassed Plaintiff’s credible limitations. The
Vocational Expert’s testimony that Plaintiff was capable of performing her past
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relevant work and other work constitutes substantial evidence supporting the
decision. See Guilliams v. Barnhart, 393 F.3d 798, 804 (8th Cir. 2005).
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 13th day of February, 2015.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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