Bierman v. Colvin
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 5/27/15. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MARK RICHARD BIERMAN,
CAROLYN W. COLVIN,
Acting Commissioner of
No. 4:14CV1034 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review
under 42 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 51 years old at the time of the hearing. He has a high school
education. Plaintiff had past work experience in collections and customer service.
Plaintiff testified that he suffers from depression and PTSD, which may be
associated with a carjacking incident . He also stated he has difficulty focusing on
simple tasks and has aches in both knees. Plaintiff lives with his mother in her
home and rarely goes outside. He prepares meals for himself and does yard work
around the house. He has no driver license and therefore is unable to drive.
Ms. Gonzales, a Vocational Expert testified, based upon a hypothetical
presented by the ALJ, at the hearing as well. There were no physical restrictions in
the hypothetical and the claimant could carry out simple instructions and detailed
tasks. The hypothetical also included that he can respond appropriately to
supervisors and coworkers in a task oriented setting where contact with others is
casual and infrequent. In addition , there could be no work in a setting which
included constant, regular contact with the general public and no performance of
any work which included more than infrequent handling of customer complaints.
This included not working in close proximity to alcohol or controlled substances.
The ALJ concluded, based upon the inquiry of the Vocational Expert, that
Plaintiff retained the Residual Functional Capacity to perform a full range of work
at all exertional levels but with nonexertional limits: he can understand ,
remember, and carry out at least simple instructions and non-detailed tasks. He can
respond appropriately to supervisors and co-workers in a task oriented setting
where contact with others is casual and infrequent. He should not work in a setting
that includes constant/regular contact with the general public. The ALJ further
concluded that Plaintiff should not perform work that includes more than
infrequent handling of customer complaints and he should not work in close
proximity to alcohol or controlled substances.
The ALJ found Plaintiff had the severe impairments that included
hypomania, bipolar affective disorder, post-traumatic stress disorder (PTSD),
depressive disorder not otherwise specified, and cluster B traits with antisocial
personality traits. The ALJ found he 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. The ALJ therefore concluded Plaintiff was not disabled.
The Appeals Council denied his request for review on March 31, 2014.The
decision of the ALJ is now 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
not properly evaluate Plaintiff’s credibility, and did not properly determine
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).
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
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
(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). 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).
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 the alleged amended onset date of January 26,
2011. The ALJ found at Step Two that Plaintiff had the severe impairments of
hypomania, bipolar affective disorder, post-traumatic stress disorder (PTSD).
Depressive disorder not otherwise specified, and cluster B traits with antisocial
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).
As required, prior to Step Four, the ALJ determined the Residual
Functional Capacity of Plaintiff to perform a full range of work at all exertional
levels but with the following nonexertional limitations: the claimant can
understand, remember, and carry out at least simple instructions and non-detailed
tasks. The claimant can respond appropriately to supervisors and coworkers in a
task-oriented setting where contact with others is casual and infrequent. The
claimant should not work in a setting that includes constant/regular contact with
the general public. The claimant should not perform work that includes more than
infrequent handling of customer complaints. He should not work in close
proximity to alcohol or controlled substances.
At Step Four it was the finding of the ALJ that Plaintiff was not capable of
performing past relevant work as the demands of that work exceeds his residual
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. The ALJ
concluded as well that the Vocational Expert’s testimony was consistent with the
information set out in the Dictionary of Occupational Titles. The ALJ, therefore,
found Plaintiff not disabled, and denied the benefits sought in his 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
860, 863 (8th Cir.2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th
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
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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).
A. Did the ALJ properly evaluate Plaintiff’s credibility?
The essence of Plaintiff’s position on this query is that the ALJ failed to
assess the credibility of his allegations consistent with agency regulations and
applicable Eighth Circuit law. The record, however, belies such a position and
renders it without effect.
The ALJ analyzed and discussed each of Plaintiff’s alleged impairments and
complaints (Tr. 11,13-17). The ALJ referenced the factors which must be
considered in evaluating a claimant’s credibility. Specific analysis was then set out
as to Plaintiff’s statements in the disability report and at the hearing. Lastly the
ALJ provided a thorough discussion of the medical records which set out
Plaintiff’s medical history and medical findings. There was a lack of medical
evidence supporting the allegations. These included mild or normal diagnostic
findings; mental status examinations which reflected normal or minimal findings;
recommendations for conservative treatment; unremarkable physical examinations.
There were also medical findings of Plaintiff doing well with psychotropic
medications and no side effects. See Forte v. Barnhart , 377 F.3d 892, 895 (8th
Cir. 2004) (“[L]ack of objective medical evidence is a factor an ALJ may
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consider.”); Kisling v. Chater , 105 F.3d 1255, 1257 (8th Cir. 1997) (The Eighth
Circuit has held that allegations of disabling pain may be properly discounted
because of inconsistencies such as minimal or conservative medical treatment.).
Consistent with the holding in Martise v. Astrue, 641 F.3d 909, 923 (8th Cir.
2011), the ALJ fulfilled the duty to evaluate the severity of Plaintiff’s impairments.
Credibility questions concerning a claimant’s subjective testimony are
“primarily for the ALJ to decide, not the courts.” Baldwin v. Barnhart, 349 F.3d
549, 558 (8th Cir. 2003). In analyzing a claimant’s subjective complaints, the
ALJ considers the entire record, including the medical records; third party and
Plaintiff’s statements; the claimant’s daily activities; the duration, frequency and
intensity of pain or other subjective complaints; the dosage, effectiveness, and side
effects of medication; precipitating and aggravating factors; and functional
restrictions. See 20 C.F.R. §§ 404.1529, 416.929; Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984). The Eighth Circuit has held that although the Polaski
factors “must be taken into account, the ALJ’s decision need not include a
discussion of how every Polaski factor relates to the claimant’s credibility.” Casey
v. Astrue, 503 F.3d 687, 695 (8th Cir. 2007); Samons v. Apfel, 497 F.3d 813, 820
(8th Cir. 2007) (“[W]e have not required the ALJ’s decision to include a discussion
of how every Polaski ‘factor’ relates to the claimant’s credibility.”).
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The ALJ wrote extensively on the analysis within, and from , the record of
Plaintiff’s statements and medical record. See, e.g., Wiese v. Astrue, 552 F.3d 728,
733-34 (8th Cir. 2009) (“Indeed, the ALJ wrote nearly four full pages of analysis
regarding the consistency between Wiese’s self-reports contained in the record, her
treating physicians’ notes and assessments, the medical evidence and the hearing
testimony. In doing so, the ALJ provided a thorough analysis of the inconsistencies
she noted in the record, and those inconsistencies are supported by the record.”).
The record patently supports the conclusion that the ALJ properly evaluated
B. Did the ALJ properly evaluate the Plaintiff’s RFC?
Plaintiff asserts the ALJ should have included additional limitations from
Plaintiff’s conditions in the RFC. As noted by counsel for Defendant it is unclear
as to what Plaintiff considers as deficient in the RFC found by the ALJ. Plaintiff
The ALJ found, as demonstrated by the record and a thorough analysis of
same, that Plaintiff’s credible impairments allowed him to perform the full range of
work at all exertional levels with understanding, remembering, and carrying out at
least simple instructions and non-detailed tasks and responding appropriately to
supervisors and coworkers in a task-oriented setting where contact with others is
casual and infrequent. Plaintiff should not work in a setting that includes
constant/regular contact with the general public; should not perform work that
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includes more than infrequent handling of customer complaints; and should not
work in close proximity to alcohol or controlled substances. A RFC is the most a
claimant can do despite the combined effect of all credible limitations. The
claimant, of course, has the burden to prove the RFC at step four of the sequential
evaluation, and the ALJ determines it based on all relevant evidence. See Harris v.
Barnhart, 356 F.3d 926, 930 (8th Cir. 2004).
The RFC is a determination based on all the record evidence. See Pearsall
v. Massanari, 274 F.3d 1211, 1217-18 (8th Cir. 2001) (citation omitted); Dykes v.
Apfel, 228 F.3d 865, 866-67 (8th Cir. 2000) (per curiam) (citations omitted), and
not solely medical evidence. The RFC is a part of the medical portion of a
disability adjudication as opposed to a vocational portion, which involves
consideration of age, education, and work experience.
Although Plaintiff asserts the ALJ did not include work restrictions that
corresponded to the finding of moderate limitations in concentration, persistence,
and pace , there is no evidence in the record which is supportive of the assertions.
The findings of the ALJ relative any limitations from mental impairments
noted in the record were consistent with the Plaintiff’s statements concerning his
daily living activities. It was also consistent with the opinion of the state medical
consultant who was given great weight by the ALJ.
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It is, again noted , that Plaintiff has the burden to prove the RFC. See Harris
v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004). The ALJ is not required to adopt
Plaintiff’s unsupported subjective complaints. See, Perkins v. Astrue, 648 F.3d
892, 902 (8th Cir. 2011). The ALJ, however, included considerable mental
limitations in the RFC. The ALJ fully discussed the medical and other evidence of
record supporting the RFC finding. See, McKinney v. Apfel, 228 F.3d 860, 863 (8th
Cir. 2000) (affirming ALJ’s residual functional capacity determination where it
was consistent with the medical records and the observations of treating physicians
and others). Accordingly, the ALJ’s RFC determination was supported by
substantial evidence of record.
C. WAS THE ALJ’S DETERMINATION THAT PLAINTIFF COULD
PERFORM OTHER WORK SUPPORTED BY SUBSTANTIAL EVIDENCE.
The ALJ posed a proper hypothetical question to the vocational expert based
on all of Plaintiff’s credible limitations. The vocational expert testified that such an
individual could perform other work that existed in significant numbers, including
the jobs of housekeeper/cleaner and hand presser. Because the hypothetical
question included those impairments the ALJ found credible and excluded those he
discredited for legally sufficient reasons, the vocational expert’s testimony that
Plaintiff could perform work existing in significant numbers, was substantial
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evidence in support of the ALJ’s determination. See Martise v. Astrue, 641 F.3d
909, 927 (8th Cir. 2011); Gragg v. Astrue, 615 F.3d 932, 941 (8th Cir. 2010).
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.
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 27th day of May, 2015.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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