Hurst v. Colvin

Filing 18

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 09/01/2015. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
YOLANDA HURST,
Plaintiff,
v.

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

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No. 4:14CV1465 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
application supplemental security income (SSI) under Titles II and XVI of the
Social Security Act (Act), 42 U.S.C. §§ 401-434, 1381-1385 . For the reasons set
forth below, the Court will affirm the Commissioner's denial of Plaintiff's
applications.
Facts and Background
On May 2, 2013 Plaintiff appeared and testified before Administrative Law
Judge Joseph Warzycki. Plaintiff was 44 years old at the time of the hearing.
Plaintiff did not complete high school and had past work experience as a
housekeeper and factory worker through temporary employment services. She

resides in a single family residence with a male friend. She does the grocery
shopping and and household chores such as cleaning and sweeping, making the
bed, cooking and doing laundry. She also has a cat and changes the litter box.
Plaintiff also is able to walk to and from the car in order to go grocery shopping
and other places.
Plaintiff testified that she suffers from pain in her feet and back. As a result
she can’t stand or walk very long due to the pain. She has callouses on her feet and
they throb all the time even through the evening when she is at rest. She testified
that she could lift one gallon of milk but two gallons would be too heavy. As to her
mental health she testified that she has depression and takes Celexa for it.
The ALJ concluded, based upon the inquiry, and responses, of the Plaintiff,
and the documentary and records evidence presented, the testimony of Dr. Mary
Jo Kosinski, Dr. Charles Dwight Auvenshine, and the Vocational Expert, Barbara
Meyers, that Plaintiff retained the Residual Functional Capacity to perform
sedentary work except she is able to lift, carry, push, and pull 10 pounds
occasionally and less than 10 pounds frequently; she is able to sit for 6 hours in an
8 hour workday and is able to stand and or walk for 2 hours in an 8-hour workday,
for a total of 8 hours in an 8 hour workday; Plaintiff can occasionally climb,
balance, stoop, crouch, kneel, and crawl; she should avoid climbing ladders, ropes,

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and scaffolds; the Plaintiff should avoid concentrated exposure to unprotected
heights; and finally she is limited to simple, repetitive tasks and instructions.
The ALJ found Plaintiff had the severe impairments of borderline
intellectual functioning, essential hypertension, and shortness of breath. The ALJ
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, 416.920(d), 416.925 and 416.926. The ALJ also
concluded that Plaintiff was not capable of performing past relevant work. The
ALJ therefore concluded Plaintiff was not disabled.
The Appeals Council denied her request for review on July 14, 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
improperly found that Plaintiff’s mental impairments did not meet or equal listing
12.05
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 October 7, 2011. The
ALJ found at Step Two that Plaintiff had the severe impairments borderline
intellectual functioning; essential hypertension; and shortness of breath.
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 (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 sedentary work as defined in 20 CFR 04.1567(c)
and 416.967(a) except lifting, carrying, pushing, pulling no more than 10 pounds
occasionally and less than 10 pounds frequently; sitting for 6 hours in an 8-hour
workday and able to stand and or walk for 2 hours in an 8-hour workday, for a total
of 8 hours in an 8-hour workday; the Plaintiff can occasionally climb, balance,
stoop, crouch, kneel, and crawl; should avoid climbing ladders, ropes, and
scaffolds; should avoid concentrated exposure to unprotected heights; and she is
limited to simple, repetitive tasks and instructions.
At Step Four it was the finding of the ALJ that Plaintiff was not capable of
performing past relevant work.
Step Five the ALJ concluded that considering the Plaintiff’s age, education,
work experience, and residual functional capacity, there are jobs that exist in
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significant numbers in the national economy that Plaintiff can perform. The ALJ,
therefore, found Plaintiff not disabled, and denied the benefits sought in the
Application.
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
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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)).
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 find that Plaintiff’s mental impairments did not meet or
equal listing 12.05?
The essence of Plaintiff’s position is that the ALJ erred in determining that
her mental impairments did not meet the listing for mental retardation, which was
the terminology used in the framework of application at the time of the ALJ ruling.
Review of the transcript, record evidence, and decision of the ALJ yields a
conclusion wholly contrary to Plaintiff’s position. The ALJ found that the severe
impairments of borderline intellectual functioning, high blood pressure, and
shortness of breath applicable to the Plaintiff did not meet or equal any of the
criteria for any listed impairment, particularly mental retardation (listing 12.05).
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Plaintiff must meet one of four severity prongs and the diagnostic
description of mental retardation in listing 12.05 in order to establish disabling
mental retardation; Maresh v. Barnhart, 438 F. 3d 897, 899 (8th Cir. 2006). More
specifically Plaintiff must establish (1) significantly subaverage general intellectual
functioning with deficits in adaptive functioning, (2) an onset of the impairment
before age 22, (3) a valid IQ score between 60 and 70, and (4) an additional sever
impairment. 20 C.F.R. pt. 404, subpt. P, app.1, § 12.05; Bestv. Astrue, No. 2:12CV-7LMB, 213 WL 1163464 at *12 (E.D.Mo. Mar. 20, 2013).
Here the ALJ specifically found that Plaintiff had a full scale IQ score in
December of 2011. That score was reflected as 70. The psychologist who
administered the test noted this was reflective of borderline intellectual functioning
rather than mental retardation. The psychologist, Bruner, observed in her
evaluation that “there does not appear to be any significant psychological
symptomology which would preclude obtaining or maintaining employment”. As
such the ALJ reasonably concluded that the IQ score was not valid as a diagnosis
of mental retardation. The ALJ’s finding that a claimant did not establish the
required deficits in adaptive functioning was supported by the fact that a
psychologist diagnosed borderline intellectual functioning instead of mental
retardation. See, Cheatum v. Astrue, 388 F. App’x 574, 577 (8th Cir. 2010).

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The ALJ clearly considered all the medical opinion, evidence in the record
in evaluating Plaintiff’s intellectual functioning. It is incumbent upon the ALJ to
consider the opinion evidence together with the rest of the relevant evidence in
determining disability. Furthermore, it is up to the ALJ to determine the weight
each opinion is due. See, Finch v. Astrue, 547 F. 3d 933, 936 (8th Cir. 2008).
Plaintiff must establish deficits in adaptive functioning which is sufficient to meet
the diagnostic description of mental retardation.
At the hearing, The ALJ considered the opinion of medical expert Dr.
Auvenshire, Ph.D. Upon review of the records and under examination he
concluded that Plaintiff’s intellectual deficits did not rise to the level of mental
retardation as defined in listing 12.05. Dr. Auvenshire was able to review the entire
record to assist in developing his opinion. Great weight was correctly given to his
opinion. The opinion was consistent with other evidence in the record and he
properly considered Plaintiff’s prior work history in assessing her ability or
inability to function in a work setting. The fact that Plaintiff worked successfully
with her present level of intellectual functioning, coupled with the absence of
evidence of significant deterioration in her intellectual functioning demonstrate the
impairments are not disabling in the present. Goff v. Barnhart, 421 F. 3d 785, 79293 (8th Cir. 2005). In addition, in a report filed by Plaintiff she stated she stopped
working in July of 2003 due to a lack of jobs, not as a result of any mental
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impairments. She also testified that she did not stop searching for jobs due to
mental impairment, but due to difficulty standing.
The ALJ also considered the opinion of Marsha Toll, Psy. D. Dr. Toll
reviewed the record in December of 2011and concluded the medical evidence
demonstrated that Plaintiff could perform simple work-related tasks. As a state
agency consultant it was appropriate to assign great weight to her testimony and
opinions.
ALJ Warzycki found the opinion testimony of Toll to be consistent with the
medical evidence as a whole. The record demonstrates that the ALJ was correct in
placing great weight in the opinion of Toll. Dr. Toll was familiar with agency
disability programs and the opinion was clearly consistent with the medical
evidence. As such the ALJ acted reasonably in evaluating and relying upon the
testimony of Dr. Toll in light of the other consistent evidence in the record.
Substantial evidence therefore supports the finding that Plaintiff did not meet or
equal the requirement for mental retardation under 12.05.
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.
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A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 1st day of September, 2015.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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