White v. Colvin

Filing 33

JUDGMENT in favor of Carolyn W. Colvin against Kenneth White. In accordance with the Oral Opinion entered this day and incorporated herein,IT IS HEREBY ORDERED, ADJUDGED and DECREED that Judgment is entered forDefendant Carolyn W. Colvin, Acting Commissioner of Social Security, and against Plaintiff Kenneth White, and that Plaintiff's Complaint [Doc. 1] is DISMISSED, with prejudice. Signed by Magistrate Judge Shirley P. Mensah on 8/14/15. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETH WHITE,
Plaintiff,
v.

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

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Case No. 4:14CV1367SPM

JUDGMENT
In accordance with the Oral Opinion entered this day and incorporated herein,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that Judgment is entered for
Defendant Carolyn W. Colvin, Acting Commissioner of Social Security, and against Plaintiff
Kenneth White, and that Plaintiff=s Complaint [Doc. 1] is DISMISSED, with prejudice.

/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 14th day of August, 2015.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETH WHITE,

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Plaintiff,
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VS.
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CAROLYN W. COLVIN, Acting
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HEARING HELD
Commissioner of Social Security,
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TELEPHONICALLY
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Defendant.
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ORAL OPINION OF THE COURT
BEFORE THE HONORABLE SHIRLEY PADMORE MENSAH
AUGUST 14, 2015
ST. LOUIS, MISSOURI
FOR THE PLAINTIFF:
CAROLINA S. A. DONEY
ADAMS LAW GROUP
One Mid River Malls Drive, Suite 200
St. Peters, MO 63376
[phone]
FOR THE DEFENDANT:
SEAN STEWART
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
601 East 12th Street, Room 535
Kansas City, MO 64106-2898
[phone]
Proceedings recorded by mechanical stenography;
transcript produced by computer.
__________________________________________________________
DEBORAH A. KRIEGSHAUSER, FAPR, RMR, CRR
Federal Official Court Reporter
111 South Tenth Street, Third Floor
St. Louis, MO 63102
[phone]

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(Ruling of the Court commenced at 10:50 AM.)

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THE COURT:

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All right.

Thank you.

I am ready to

rule on this case.
As we discussed at the start of the hearing, the

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Plaintiff here, Mr. White, is appealing the Commissioner's

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denial of his application for disability insurance benefits.

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And the particular issues raised for judicial review are,

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first, whether the ALJ committed reversible error at Step 2 of

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the disability analysis by failing to identify which of

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Plaintiff's medical impairments were severe; and, second,

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whether the ALJ erroneously failed to give controlling weight

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to the opinion of Plaintiff's treating doctor, Dr. Hawk.

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I am going to affirm the Commissioner's decision

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because I believe that, as a whole, it is supported by a

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substantial evidence.

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With respect to the Step 2 finding, I agree with

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Plaintiff.

I think both sides have agreed that the ALJ's

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decision is less than clear, and the ALJ clearly did not

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explicitly state which impairments he found to be severe.

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However, I have reviewed the cases that were discussed during

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oral argument.

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Plaintiff and discussed during oral argument as well as Baugus

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v. Astrue and Judge Noce's decision in Dale v. Apfel.

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believe that the reasoning from the Baugus line of cases is

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more applicable here because, unlike the case in Haines, I

I did review Haines v. Apfel cited by

I do

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find that it is possible to know from a review of the record

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and the decision as a whole which impairments the ALJ

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considered to be severe.

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Unlike Haines where the -- where the ALJ simply found

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that the plaintiff -- the claimant there had severe

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impairments, the ALJ here gives us more guidance.

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discussed at Page 11 of the -- of the hearing of the

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administrative record, the ALJ identifies cardiovascular

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impairment and musculoskeletal impairments which are then

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As was

listed at Page 15 of the administrative record.

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So I agree with the Commissioner that when you read

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the decision as a whole, it is possible to know that the ALJ

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considered Plaintiff's cardiovascular impairments, which are

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all listed at Page 15 of the record, to be severe.

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possible to know from the decision that the ALJ considered all

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of Plaintiff's musculoskeletal impairments, again listed at

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Page 15 of the record, to be severe.

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know from reading the entire decision that the ALJ considered

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Plaintiff's anxiety to be nonsevere.

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It's also

And it's possible to

So unlike in Haines and in Dale, the Court here is

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able to have a meaningful review, although to quote the Court

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in Baugus, "It is preferable that the ALJ explicitly lists the

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Claimant's severe impairments."

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apparent which of the Plaintiff's impairments the ALJ

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determined to be severe.

In this case it is readily

As such, the Court can meaningfully

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review that decision.
Before leaving the Step 2 analysis, I'd also like to

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note that it's unclear to the Court why any error by the ALJ

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at Step 2 isn't harmless error in this case.

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situation where the ALJ failed to consider some of Plaintiff's

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medically determinable impairments.

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that, and there's no evidence that the ALJ failed to identify

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a medically determinable impairment.

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from the decision that the ALJ found that there was a severe

This is not a

Plaintiff has not argued

So -- But it's clear

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impairment.

It's unclear why the ALJ's failure to identify,

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say, the gunshot wound to Plaintiff's knee as a severe

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impairment would have resulted in any harm to Plaintiff in

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light of the fact that it's clear from reading the hearing

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decision that the ALJ considered all of Plaintiff's medically

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determinable impairments at Step 4 of the disability analysis.

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With respect to the Treating Physician Rule,

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notwithstanding Plaintiff's arguments to the contrary, the ALJ

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did not violate the Treating Physician Rule.

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decision is not a model of clarity.

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decision acknowledges the opinions of Dr. Hawk, acknowledges

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that Dr. Hawk's opinions would normally be entitled to great

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weight as a matter of regulatory law but then concludes that

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Dr. Hawk's assessments were inconsistent with -- the Plaintiff

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quoted this -- just about everything he said elsewhere about

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the Claimant in terms of pain and medication control.

Again, the

However, the hearing

The

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hearing decision does go on in some detail about those

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perceived inconsistencies.

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may draw somewhat different conclusions after reviewing the

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same record, the ALJ's conclusion here is within the zone of

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available choices for all of the reasons stated in the hearing

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decision and in the Commissioner's brief.

And while a different fact finder

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So based on my review of the administrative record

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and for the reasons set out in the Commissioner's brief and

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stated on the record today at oral argument, I do find that

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substantial evidence on the record as a whole supports the

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Commissioner's decision.

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and will issue a judgment consistent with this opinion.

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As such, I will affirm the decision

I will attach a transcription of this oral opinion to
the judgment.
Thank you very much, counsel, and you will get copies
of the judgment and my statement of reasons for the judgment.

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MS. DONEY:

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MR. STEWART:

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THE COURT:

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(Court adjourned at 10:55 AM.)

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Thank you.
Thank you, Your Honor.

Court is adjourned.

Thank you.

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CERTIFICATE OF OFFICIAL REPORTER

I, Deborah A. Kriegshauser, Federal Official Realtime
Court Reporter, in and for the United States District Court
for the Eastern District of Missouri, do hereby certify that
pursuant to Section 753, Title 28, United States Code, that
the foregoing is a true and correct transcript of the
stenographically-reported proceedings held in the
above-entitled matter and that the transcript page format is
in conformance with the regulations of the Judicial Conference
of the United States.
Dated this 14th day of August, 2015.

/s/ Deborah A. Kriegshauser
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DEBORAH A. KRIEGSHAUSER, FAPR, RMR, CRR
FEDERAL OFFICIAL COURT REPORTER