Tyson v. Colvin

Filing 23

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 8/19/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GRACE MACHELLE TYSON,
Plaintiff,
v.

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

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No. 4:14cv1176 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
On June 5, 2012 Plaintiff appeared and testified before Administrative Law
Judge Thomas C. Muldoon. Plaintiff was 51 years old, having been born on
October 3, 1960, at the time of the hearing. Plaintiff had past work experience as a
home health aide, CNA, and presser. She resides with her mother and

grandmother and maintains their household, does the grocery shopping and
otherwise acts as the head of their household.
Plaintiff testified that she suffers from pain in her knees and back. As a
result she can’t stand longer than 45 minutes and then has to sit or lie down for a
period of time due to the pain. She testified she can only walk for limited periods
of time without having to rest and that she would not be able to work at a job that
required her to be standing six hours out of an eight hour day. The Plaintiff further
testified at the hearing that she could only lift 10 pounds without having difficulty
with her back. On examination by her attorney Plaintiff testified she has issues
with depression and anxiety. She gets nervous about driving and going outside.
The ALJ concluded, based upon the inquiry, and responses, of the Plaintiff,
and the documentary and records evidence presented, that Plaintiff retained the
Residual Functional Capacity to perform medium work except lifting and carrying
no more than 50 pounds occasionally and 25 pounds frequently; standing or
walking more than six hours out of eight with normal work breaks; climbing
ropes, ladders, or scaffolds, kneeling, crouching, and crawling no more than
occasionally.
The ALJ found Plaintiff had the severe impairments of bilateral knee
degenerative joint disease and chondromalacia, right knee bursitis and small
Baker’s cyst as well as obesity. ALJ Muldoon further found Plaintiff does not
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have an impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1, Part A, 20 CFR 404.1520(d) , 404.1525, 404.1526, 416.920(d),
416.925 and 416.926. ALJ Muldoon also concluded that Plaintiff was capable of
performing past relevant work as a home health aide, presser, or CNA as that work
did not require the performance of work activities precluded by Plaintiff’s residual
functional capacity. The ALJ therefore concluded Plaintiff was not disabled.
The Appeals Council denied her request for review on May 12, 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’s
assessment at step two is not supported by substantial evidence, the ALJ did not
properly consider the medical opinions of record, and the ALJ’s decision is not
supported by substantial evidence considering the new evidence submitted to the
Appeals Council.

Standard For Determining Disability
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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
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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
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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
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

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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.
Although the ALJ bears the primary responsibility for assessing a claimant's
RFC based on all relevant evidence, a claimant's RFC is a medical question.
Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.2001) (citing Lauer v. Apfel, 245
F.3d 700, 704 (8th Cir.2001)). Therefore, an ALJ is required to consider at least
some supporting evidence from a medical professional. See Lauer, 245 F.3d at 704
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(some medical evidence must support the determination of the claimant's RFC);
Casey v. Astrue, 503 F .3d 687, 697 (the RFC is ultimately a medical question that
must find at least some support in the medical evidence in the record). An RFC
determination made by an ALJ will be upheld if it is supported by substantial
evidence in the record. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.2006).
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).
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
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activity during the period from the alleged onset date of July 3, 2010. The ALJ
found at Step Two that Plaintiff had the severe impairments bilateral knee
degenerative joint disease and chondromalacia, right knee bursitis and small
Baker’s cyst and obesity.
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, Part A (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 medium work as defined in 20 CFR 04.1567(c)
and 416.967(c) except lifting and carrying no more than 50 pounds occasionally
and 25 pounds frequently; standing or walking more than 6 hours in an 8 hour
workday with normal work breaks; climbing ladders, ropes, or scaffolds, kneeling
or crawling and crouching no more than occasionally.
At Step Four it was the finding of the ALJ that Plaintiff was capable of
performing past relevant work as a home health aide, presser or CNA as it does not
require the performance of work-related activities precluded by the Plaintiff’s
residual functional capacity.
Step five was not a consideration under the circumstances of this matter.
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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
Cir.2005)).
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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. Was the ALJ’s Assessment at Step Two Supported by Substantial Evidence?
The ALJ analyzed and discussed each of Plaintiff’s alleged impairments and
complaints. Plaintiff bears the burden of proof to demonstrate that she has a severe
impairment, Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007) (citing
Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000) (reversing district court and
affirming Commissioner)), and while “[s]everity is not an onerous requirement for
the claimant to meet, … it is also not a toothless standard, and we have upheld on
numerous occasions the Commissioner’s finding that a claimant failed to make this
showing.” Id.
After thoroughly considering the evidence, the ALJ determined that
Plaintiff’s medically determinable mental impairments noted here did not cause
more than minimal limitation in Plaintiff’s ability to perform basic work activities.
Much analysis was set out as to Plaintiff’s statements regarding claims of mental
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impairment. The mere fact that a claimant was diagnosed with a mental or
emotional impairment does not mean that the impairment is severe. See Buckner,
646 F.3d at 557 ([“A]lthough Buckner was diagnosed with depression and anxiety,
substantial evidence on the record supports the ALJ's finding that his depression
and anxiety was not severe.”). In performing the analysis required by 20 C.F.R . §§
404.1520a and 416.920a, the ALJ found that Plaintiff had “no more than mild, if
any,” restrictions of activities of daily living, difficulties in maintaining social
functioning, or concentration, persistence or pace. The ALJ also found there was
no evidence of any repeated episodes of decompensation of extended duration. The
ALJ provided a thorough discussion of the facts relating to Plaintiff’s claims.
Plaintiff maintained the household for herself, her mother and her grandmother.
She attended classes on line and was achieving “As”. She performed household
chores, went grocery shopping, and drove a car. For a time she maintained a part
time job while performing these other functions. Plaintiff also noted she spent time
with others and did not have difficulty with others.
There was a lack of medical evidence supporting the subjective allegations.
See Forte v. Barnhart , 377 F.3d 892, 895 (8th Cir. 2004) (“[L]ack of objective
medical evidence is a factor an ALJ may 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
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minimal or conservative medical treatment.). Plaintiff had visited the VA Medical
Center for examination in August of 2010 and denied any depression and
participated minimally in recommended treatment for anxiety, or inability to sleep.
In assessing the RFC, the ALJ considered all of the medically determinable
impairments, including those that are not “severe” as defined in the regulations.
See 20 C.F.R. §§ 404.1545(a)(2), (e); 416.945(a)(2), (e).
B. Did the ALJ Properly Consider Medical Opinion Evidence?
Plaintiff argues that in making this RFC assessment, the ALJ should have
assigned controlling weight to a medical source statement form completed by her
treating doctor, Gary Miller, M.D. The RFC assessment is specifically reserved to
the Commissioner and the ALJ, not a plaintiff’s doctors, and in making that
assessment, “the ALJ is not required to rely entirely on a particular physician’s
opinion or choose between the opinions [of] any of the claimant’s physicians.”
Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (quoting Schmidt v. Astrue,
496 F.3d 833, 845 (7th Cir. 2007). See also 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2) (The Commissioner uses medical sources to provide evidence about
several factors, including the RFC, but the “final responsibility for deciding these
issues is reserved to the Commissioner.”).
The record and decision demonstrates that the ALJ considered Dr. Miller’s
opinion as he is required to do, but he gave proper reasons for giving little weight
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to the opinion. This Circuit has routinely and repeatedly recognized that while 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.” Brown v. Astrue, 611 F.3d 941, 951
(8th Cir. 2010) (quoting Heino v. Astrue, 578 F.3d 873, 880 (8th Cir. 2009)). The
only consideration for the court, therefore, is whether the substantial evidence
supports the ALJ conclusion. Here, it clearly does.
The ALJ clearly defined the limitations of Miller’s opinion, consistent with
the record and other evidence in the matter. Miller did not articulate an objective
medical basis for the limitations in his opinion. Dr. Miller’s notes indicated that
Plaintiff showed minimal osteoarthritis and a Baker’s cyst. Notes further indicated
that Plaintiff, from notes of May 18, 2010, was pleased with the bracing and nonsteroidal medication relating to both knees. It was noted that no follow up with
orthopedics was necessary. In addition, the record reflects that Plaintiff treated
with Dr. Morrow from August 2009 to May 2010 for knee pain and was treated
with Tylenol 3. As part of the treatment/examination Plaintiff denied any
complications.
There are numerous areas of the record all contrary to the opinion of Dr.
Miller and consistent with the reasoned conclusion of the ALJ. The ALJ properly
gave little weight to Dr. Miller’s opinion. See Anderson v. Astrue, 696 F.3d 790,
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793-94 (8th Cir. 2012) (citing Owen v. Astrue, 551 F.3d 792, 799 (8th Cir. 2008)
(ALJ properly discounted the opinion of a treating neurologist where the opinion
consisted of a conclusory checkbox form, listed significant limitations that were
not reflected in treatment notes or other medical records, and assigned more
physical limitations than Plaintiff actually exhibited in daily living).
C. Was the ALJ Decision Supported by Substantial Evidence Even Considering
New Evidence Submitted to the Appeals Council?
Plaintiff insists that additional evidence submitted to the Appeals Council
after the ALJ issued his decision in this case would have changed the outcome of
the case.
On May 12, 2014, the Appeals Council of the Social Security
Administration denied Plaintiff's request for review, stating it considered the
VAMC treatment records that Plaintiff submitted, but found that they did not
“provide a basis for changing the Administrative Law Judge’s decision.”
(questions concerning a claimant’s subjective testimony are “primarily for the ALJ
to decide, not the courts.” This Court must factor in this evidence in making a
determination as to whether the ALJ decision is supported by substantial evidence.
See Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007) (“Where, as here, the
Appeals Council considers new evidence but denies review, we must determine
whether the ALJ’s decision was supported by substantial evidence on the record as
a whole, including the new evidence.”).
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The evidence presented by Plaintiff was no different in substance than the
evidence already seen and heard by the ALJ, save for the opinion of Dr. Evans.
That opinion was authored on January 14, 2013, months after the decision of the
ALJ in this matter and clearly not within the relevant time period.
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 19th day of August, 2015.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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