Nobs 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 7/21/15. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of
No. 4:14cv 01264HEA
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 February 7, 2013 Plaintiff appeared and testified before the
Administrative Law Judge. Plaintiff was 48 years old at the time of the hearing.
He has a high school education. Plaintiff had past work experience in concrete
work for the City of Overland. Plaintiff also worked as a plumber’s laborer from
2000 to 2002. Plaintiff testified that he suffers from severe pain, numbness in his
hands, headaches, nausea, depression and blurred vision. He also stated he has
difficulty raising things or even throwing a ball due to mobility issues with both
shoulders. Plaintiff has problems with his lower back which inhibit his ability to
lift due to severe pain and numbing in his legs and thighs. He also testified that he
takes medication for anxiety.
On examination by his attorney Plaintiff testified he gets headaches three to
five times per week and they make his vision blurred. Further when the numbness
affects his hands he has difficulty grasping things like buttons, coins, and zippers.
And his shoulders prevent him from reaching above his head as the motion causes
shooting pain from his neck, part of his chest and his shoulder blade and back. He
further noted that when his legs become numb he has to stand and walk for about
15 minutes. As a result he can only sit for 20 to 25 minutes at a time. He noted he
could not alternate between walking and standing during an eight hours period of
time because when his back become problematic he has to sit down for up to three
Ms. Gonzales, a Vocational Expert, testified based upon two hypotheticals
presented by the ALJ, at the hearing as well. There were some physical restrictions
in the first hypothetical: lift and carry 20 pounds occasionally, ten pounds
frequently, stand to walk for six out of eight hours, sit for six, occasionally climb
stairs and ramps, occasionally stoop, kneel, crouch, push and pull with legs was
limited occasional operation of foot controls bilaterally and reaching overhead was
limited to occasional on the right side. Also there was to be avoidance to extreme
cold, unprotected heights and vibrations. The second hypothetical limited lifting
and carrying to ten pounds occasionally, less than ten pounds frequently; standing
or walking two hours out of eight; and sitting for six with all other aspects being
The ALJ concluded, based upon the inquiry, and responses, of the
Vocational Expert, that Plaintiff retained the Residual Functional Capacity to
perform light work (lifting and carrying 20 pounds occasionally and ten pounds
frequently; sitting at least six hours out of eight; and standing/walking at least six
hours out of eight). The ALJ concluded Plaintiff can never climb ropes, ladders, or
scaffolds, but can occasionally climb stairs, and ramps. The ALJ further found that
Plaintiff can stoop, kneel, and crouch, as well as push and pull with his legs with
limitation of no more than occasional operation of foot controls bilaterally.
Plaintiff can occasionally reach overhead with his right extremity and must avoid
exposure to vibration, extreme cold and unprotected heights.
The ALJ found Plaintiff had the severe impairments of mild degenerative
changes of the right shoulder and degenerative changes of the cervical and lumbar
spine. The ALJ further found Plaintiff does not 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 ( 20 CFR
404.1520(d) , 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). The ALJ
therefore concluded Plaintiff was not disabled.
The Appeals Council denied his request for review on June 6, 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
failed to point to “some ” medical evidence to support the findings of Plaintiff’s
Residual Functional Capacity and that the vocational experts testimony was not
compatible with the dictionary of occupational titles.
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.
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
(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).
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 onset date of January 1, 2011. The ALJ
found at Step Two that Plaintiff had the severe impairments of mild degenerative
changes of the right shoulder and degenerative changes of the cervical and lumbar
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 light work (lifting and carrying 20 pounds
occasionally and ten pounds frequently; sitting at least six hours out of eight; and
standing/walking at least six hours out of eight) as defined in 20 CFR 404.1567 (b)
and 416.967(b) except the Plaintiff can never climb ropes, ladders, or scaffolds, but
can occasionally climb stairs and ramps. Plaintiff can occasionally stoop, kneel,
and crouch. Pushing and pulling with legs is limited to no more than occasional
operation of foot controls bilaterally. He can occasionally reach overhead with his
right upper extremity and must avoid concentrated exposure to vibration, extreme
cold, and unprotected heights.
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, there are jobs which exist in
significant number in the national economy that Plaintiff could perform.
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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
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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).
A. Did the ALJ properly review the evidence and utilize “some “ medical evidence
to support the findings of Plaintiff’s Residual Functional Capacity?
The ALJ analyzed and discussed each of Plaintiff’s alleged impairments and
complaints. The ALJ referenced the factors which must be considered in
evaluating a claimant’s credibility. Specific analysis was set out as to Plaintiff’s
statements regarding claims of disability. 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 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
minimal or conservative medical treatment.). The ALJ acknowledged that Plaintiff
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experienced some limitations from his physical impairments, which included mild
degenerative changes of the right shoulder and degenerative changes of the
cervical and lumbar spine, but determined that the medical evidence did not
corroborate the severity of his alleged symptoms. For example, test results did not
substantiate Plaintiff’s claims of disabling physical limitations. A magnetic
resonance imaging (MRI) scan of Plaintiff’s right shoulder dated December 2010
revealed mild acromioclavicular osteoarthritis. X-rays of Plaintiff’s back showed
degenerative disc disease of the lumbar spine. An MRI scan of Plaintiff’s neck
showed some degenerative changes, while an x-ray of his neck showed minimal
degenerative disc disease. 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. In addition, “mild” or “minimal” diagnostic test results
constitute medical evidence in support of an RFC for light work. See Steed v.
Astrue, 524 F.3d 872, 875 (8th Cir. 2008) (“We find that substantial evidence
supports the ALJ’s conclusion that Steed can perform light work and that Steed
suffered only mild degenerative changes to her back condition. Even where Steed’s
diagnostic tests showed actual disc herniation or bulging, the diagnosis is tempered
in several instances in the medical records by the words ‘mild’ or ‘minimal’
regarding either the herniation, or its effects”).
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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.”).
Here, an examining physician noted that Plaintiff could use his hands and
fingers for several functional activities such as handling buttons, zippers, keys,
coins, feeding himself, and writing. The ALJ determined that the objective
medical evidence did not support Plaintiff’s claims of disabling physical
limitations. See Halverson v. Astrue, 600 F.3d 922, 933 (8th Cir. 2010) (affirming
ALJ’s rejection of claimant’s argument she was unable to work when multiple
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examinations showed no abnormalities). The ALJ wrote extensively on the
analysis 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 Plaintiff’s credibility and the medical evidence in relation thereto.
B. Was the vocational expert’s testimony compatible with the dictionary of
The vocational expert testified that a hypothetical person of Plaintiff’s age,
with his education, work experience, and RFC could perform jobs as an order
caller and a mail sorter – both light, unskilled jobs. Based on this testimony, the
ALJ concluded that Plaintiff could perform a significant number of jobs in the
national economy, and, therefore, Plaintiff was not disabled under the Act.
Plaintiff contends that the vocational expert’s testimony conflicted with
information in the Dictionary of Occupational Titles (DOT). Plaintiff claims that
each of the jobs the vocational expert identified requires “frequent” reaching,
meaning that it exists from 1/3 to 2/3 of the time. DOT definitions are simply
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generic job descriptions that offer the approximate maximum requirements for
each position, not their range. See Page v. Astrue, 484 F.3d 1040, 1045 (8th Cir.
2007) (“[A] claimant’s reliance on the DOT as definitive authority on job
requirements is misplaced” because “DOT definitions are simply generic job
descriptions that offer the approximate maximum requirements for each position,
rather than their range. The DOT itself cautions that its descriptions may not
coincide in every respect with the content of jobs as performed in particular
establishments or at certain localities.”) (quotations omitted)). The ALJ found, as
demonstrated by the record and a thorough analysis of same, that Plaintiff was not
The ALJ was justified in relying on the vocational expert’s testimony in
finding Plaintiff not disabled. See Gragg v. Astrue, 615 F.3d 932, 941 (8th Cir.
2010) (“Because the hypothetical was adequate, the vocational expert’s testimony
was reliable to establish that there are jobs that [Plaintiff] can perform that exist in
significant numbers within the regional and national economies.”). The ALJ asked
the vocational expert if the testimony was consistent with the DOT and the
vocational expert stated that it was.
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.
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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 21st day of July, 2015.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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