Simmons v. Colvin

Filing 31

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the relief requested in Plaintiffs Complaint and Brief in Support of Complaint is DENIED. [Docs. 1, 21.] IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commissioner affirming the decision of the administrative law judge. 21 Signed by Magistrate Judge Nannette A. Baker on 12/2/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROBIN SIMMONS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:14-CV-1670 NAB

MEMORANDUM AND ORDER
The following opinion is intended to be the opinion of the Court judicially reviewing the
denial of Robin Simmons’ application for disability insurance benefits and supplemental security
income under the Social Security Act. The Court has jurisdiction over the subject matter of this
action under 42 U.S.C. § 405(g). The parties have consented to the exercise of authority by the
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc. 14.] The Court has
reviewed the parties’ briefs and the entire administrative record, including the hearing transcript
and the medical evidence. The Court heard oral argument in this matter on December 2, 2015.
Based on the following, the Court will affirm the Commissioner’s decision.
I.

Issues for Review
Simmons presents three issues for review. First, Simmons asserts that the administrative

law judge (ALJ) failed to afford and appropriate controlling weight to the opinion of Simmons’
treating physician Dr. Steven Simon.

Second, Simmons contends that the ALJ erred in

discounting her credibility regarding her pain symptoms. Third, Simmons states that the ALJ
erred in finding that her condition does not meet or equal Listings 1.02 or 1.04.

The

Commissioner contends that the ALJ’s opinion is supported by substantial evidence in the record
as a whole and should be affirmed.
II.

Standard of Review
The Social Security Act defines disability as an “inability 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 has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A).
The SSA uses a five-step analysis to determine whether a claimant seeking disability
benefits is in fact disabled. 20 C.F.R. §§ 404.1520(a)(1), 416.920(a)(1). First, the claimant must
not be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, the claimant must establish that he or she has an impairment or combination of
impairments that significantly limits his or her ability to perform basic work activities and meets
the durational requirements of the Act.

20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

Third, the claimant must establish that his or her impairment meets or equals an impairment
listed in the appendix to the applicable regulations.

20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the claimant’s impairments do not meet or equal a listed impairment, the
SSA determines the claimant’s residual functional capacity (RFC) to perform past relevant work.
20 C.F.R. §§ 404.1520(e), 416.920(e).
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(iv). If the claimant meets this
burden, the analysis proceeds to step five. At step five, the burden shifts to the Commissioner to
establish that the claimant maintains the RFC to perform a significant number of jobs in the
national economy. Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). If the claimant satisfies all

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of the criteria under the five-step evaluation, the ALJ will find the claimant to be disabled. 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). This Court reviews decisions of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find adequate support for
the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The court determines
whether evidence is substantial by considering evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006).
The Court may not reverse just because substantial evidence exists that would support a contrary
outcome or because the Court would have decided the case differently. Id. If, after reviewing
the record as a whole, the Court finds it possible to draw two inconsistent positions from the
evidence and one of those positions represents the Commissioner’s finding, the Commissioner’s
decision must be affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). To
determine whether the ALJ’s final decision is supported by substantial evidence, the Court is
required to review the administrative record as a whole to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the
claimant;
(3) The medical evidence given by the claimant’s treating
physician;
(4) The subjective complaints of pain and description of the
claimant’s physical activity and impairment;
(5) The corroboration by third parties of the claimant’s
physical impairment;

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(6) The testimony of vocational experts based upon prior
hypothetical questions which fairly set forth the claimant’s
physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
III.

Discussion
A.

Listings 1.02 and 1.04

Simmons contends that the ALJ should have found that she met Listings 1.02 and 1.04.
The listing of impairments in Appendix 1 describes for each of the major body systems
impairments considered to be severe enough to prevent an individual from doing any gainful
activity, regardless of his or her age, education, or work experience. 20 C.F.R. § 404.1525(a).
Merely being diagnosed with a condition named in a listing and meeting some of the criteria will
not qualify a claimant for presumptive disability under the listing.” McCoy v. Astrue, 648 F.3d
605, 611-12 (8th Cir. 2011); 20 C.F.R. § 404.1525(d) (An impairment cannot meet a listing
based solely on a diagnosis). “For a claimant to show that his impairment matches a listing, it
must meet all of the specified medical criteria.” Jones v. Astrue, 619 F.3d 963, 969 (8th Cir.
2010) (emphasis in original). “An impairment that manifests only some of those criteria, no
matter how severely, does not qualify.”

Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990)

(superseded by statute on other grounds). “The claimant has the burden of proving that his
impairment meets or equals a listing.” Carlson v. Astrue, 604 F.3d 589, 593 (8th Cir. 2010).
The ALJ found that Simmons had the severe impairments of disorder of the bilateral
knees, disorder of the cervical spine, disorder of the lumbar spine, migraines, obesity, and
depressive disorder. (Tr. 12.)

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1.

Listing 1.02

Listing 1.02 requires the following:
Characterized by gross anatomical deformity (e.g.,
subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion of the affected
joint(s), and findings on appropriate medically acceptable
imaging of joint space narrowing, bony destruction, or
ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weightbearing joint (i.e., hip, knee, or ankle), resulting in inability
to ambulate effectively, as defined in 1.00B2b; or
B. Involvement of one major peripheral joint in each
upper extremity (i.e., shoulder, elbow, or wrist-hand),
resulting in inability to perform fine and gross movements
effectively, as defined in 1.00B2c

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02.
In this case, Simmons asserts that she meets Listing 1.02 for major dysfunction of a joint
due to any cause, because weight bearing x-rays demonstrate significant arthritic changes and
osteophyte formation with degenerative changes. Simmons contends that the degenerative joint
disease in both of her knees combined with her chronic joint pain and stiffness that limits her
ability to ambulate effectively, combined with her obesity and other impairments indicates that
she meets the requirements for Listing 1.02. The ALJ found that Simmons did not meet Listing
1.02, because she has not established that she is unable to ambulate effectively, nor that she is
unable to perform fine and gross movements effectively. (Tr. 14.)

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Based on the Court’s review of the evidence, the ALJ’s decision that Simmons does not
meet Listing 1.02 is supported by substantial evidence in the record. First, Simmons cannot
establish that she is unable to ambulate effectively. The regulations provide:
Inability to ambulate effectively means an extreme limitation
of the ability to walk; i.e., an impairment(s) that interferes
very seriously with the individual’s ability to independently
initiate, sustain, or complete activities.
Ineffective
ambulation is defined generally as having insufficient lower
extremity functioning to permit independent ambulation
without the use of a hand-held assistive device(s) that limits
the functioning of both upper extremities.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2b. “To ambulate effectively, individuals must be
capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out
activities of daily living. They must have the ability to travel without companion assistance to
and from a place of employment or school.” Id. A review of the record as a whole indicates that
although Simmons has used a cane at times, throughout the alleged period of disability she has
been able to ambulate effectively without assistance. (Tr. 392, 445-46, 469, 532, 766, 776).
There is no evidence that she is unable to independently initiate, sustain, or complete any
activities.
Alternatively, Simmons is unable to show an inability to perform gross motor functions.
Section 1.00B2c provides:
Inability to perform fine and gross movements effectively
means an extreme loss of function of both upper extremities;
i.e., an impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain, or
complete activities. To use their upper extremities
effectively, individuals must be capable of sustaining such
functions as reaching, pushing, pulling, grasping, and
fingering to be able to carry out activities of daily living.
Therefore, examples of inability to perform fine and gross
movements effectively include, but are not limited to, the
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inability to prepare a simple meal and feed oneself, the
inability to take care of personal hygiene, the inability to sort
and handle papers or files, and the inability to place files in a
file cabinet at or above waist level.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2c. Nerve conduction studies and EMG testing
performed in January and April 2013 indicated no evidence of any neuropathy or radiculopathy.
(Tr. 492-93, 544-46.)

Simmons’ medical records indicate numerous doctors’ visits where

Simmons had normal range of motion, muscle strength testing was 5/5, and reflexes were within
normal limits for her upper extremities. (Tr. 376, 473, 476, 498, 531, 605, 776.) The evidence
in the record as a whole does not support a finding that Simmons’ conditions, singly or in
combination, meet or equal Listing 1.02.
2.

Listing 1.04

Next, Simmons contends that she meets Listing 1.04. The listing requires the following:
A disorder of the spine, (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, vertebral fracture),
resulting in compromise of a nerve root (including the cauda
equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of
the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory
reflex loss and, if there is involvement of the lower back,
positive straight leg raising test (sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or
pathology report of tissue biopsy, or by appropriate
medically acceptable imaging, manifested by severe burning
or painful dysesthesia, resulting in the need for changes in
position or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and

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weakness, and resulting in inability to ambulate effectively,
as defined in 1.00B2b.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04.
Simmons contends that her conditions meet or equal Listing 1.04, because her
degenerative disc disease causes chronic, recurrent low back pain with pain radiating into her
lower extremities, which is exacerbated by her obesity. She states that because of this, she
cannot do any activities requiring prolonged standing or sitting as it complicates her degenerative
disc disease. Simmons states that the degenerative disc disease in her cervical and lumbar spine,
combined with her other conditions, symptoms, and obesity meet or equal Listing 1.04. The ALJ
found that Simmons did not meet Listing 1.04, because the record does not demonstrate
compromise of a nerve root or the spinal cord with the additional findings required by
subsections A, B, or C. (Tr. 14.) The ALJ noted that there were contradictory MRI findings
regarding whether root compression or nerve impingement exists and relies on the most recent
MRI findings. (Tr. 18.)
Based on the record in the evidence as a whole, the Court finds that the ALJ’s
determination that Simmons’ conditions did not meet or equal Listing 1.04 is supported by
substantial evidence. Although there was some discrepancy among the MRI test interpretations,
the most recent MRI does not indicate nerve impingement. Further, Simmons has had negative
straight leg tests and normal range of motion. (Tr. 376, 442, 476, 531.) There is no evidence in
the record that Simmons would meet the requirements of Listing 1.04(B) or (C).
B.

Credibility

Simmons also contends that the ALJ erred in evaluating her credibility and the ALJ’s
assessment is not supported by substantial evidence. In considering subjective complaints, the
ALJ must fully consider all of the evidence presented, including the claimant’s prior work
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record, and observations by third parties and treating 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.

Polaski v. Heckler, 725 F.2d 1320, 1322 (8th Cir. 1984). It is not enough that the record contains
inconsistencies; the ALJ is required to specifically express that he or she considered all of the
evidence. Id. Although an ALJ may not discredit a claimant’s subjective pain allegations solely
because they are not fully supported by objective medical evidence, an ALJ is entitled to make a
factual determination that a claimant’s subjective pain complaints are not credible in light of
objective medical evidence to the contrary.” Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir.
2006). 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).
In this case, the ALJ discounted Simmons’ credibility, because of contradictory
testimony at the administrative hearing, inconsistences between her allegations and activities of
daily living, receipt of unemployment benefits, lack of motivation, and allegations of drugseeking behavior. (Tr. 16-17.) All of the factors considered by the ALJ can be considered when
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assessing credibility in a social security disability case. See Juszczyk v. Astrue, 542 F.3d 626,
632 (8th Cir. 2008) (If an ALJ explicitly discredits a claimant’s testimony and gives good
reasons for doing so, deference is given to the ALJ’s credibility determination); Goff v. Barnhart,
421 F.3d 785, 792 (8th Cir. 2005) (ALJ can disbelieve subjective complaints if there are
inconsistencies in the evidence as a whole and lack of corroborating evidence is just one of the
factors the ALJ considers); Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Circuit 2005)
(significant daily activities may be inconsistent with claims of disabling pain); Anderson v.
Shalala, 51 F.3d 777,780 (8th Cir. 1995) (the law is clear that the ALJ can consider drug seeking
behavior in a credibility determination); Jernigan v. Sullivan, 948 F.3d 1070, 1074 (8th Cir.
1991) (a claimant may admit an ability to work by applying for unemployment compensation
because such an applicant must hold himself out as available, willing, and able to work). The
ALJ provided good reasons for the credibility determination and his determination was supported
by the record. The ALJ acknowledged that Simmons experiences pain caused by her conditions.
“While pain may be disabling if it precludes a claimant from engaging in any form of substantial
gainful activity, the mere fact that working may cause pain or discomfort does not mandate a
finding of disability.” Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996).
A review of the entire record demonstrates that ALJ did not rely solely upon any one of
the factors in the credibility analysis. Considering the combination of the factors relied upon by
the ALJ, substantial evidence in the record supports the ALJ’s credibility findings. Based on the
foregoing, the Court finds that the ALJ’s credibility determination was supported by substantial
evidence in the record as a whole.

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C.

Medical Opinion Evidence

Finally, Simmons contends that ALJ erred by failing to give controlling weight to the
opinion of her treating physician Dr. Steven Simon. All medical opinions, whether by treating or
consultative examiners are weighed based on (1) whether the provider examined the claimant;
(2) whether the provider is a treating source; (3) length of treatment relationship and frequency
of examination, including nature and extent of the treatment relationship; (4) supportability of
opinion with medical signs, laboratory findings, and explanation; (5) consistency with the record
as a whole; (6) specialization; and (7) other factors which tend to support or contradict the
opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c). Generally, a treating physician’s opinion is
given controlling weight, but is not inherently entitled to it. Hacker v. Barnhart, 459 F.3d 934,
937 (8th Cir. 2006). A treating physician’s opinion “does not automatically control or obviate
the need to evaluate the record as a whole.” Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir.
2007). A treating physician’s opinion will be given controlling weight if the opinion is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the case record. 20 C.F.R. §§ 404.1527(c),
416.927(c); SSR 96-2p; see also Hacker, 459 F.3d at 937. “Whether the ALJ grants a treating
physician’s opinion substantial or little weight, the regulations provide that the ALJ must ‘always
give good reasons’ for the particular weight given to a treating physician’s evaluation.” Prosch
v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000).
In making a disability determination, the ALJ shall “always consider the medical
opinions in the case record together with the rest of the relevant evidence in the record.” 20
C.F.R. §§ 404.1527(b), 416.927(b); see also Heino v. Astrue, 578 F.3d 873, 879 (8th Cir. 2009).

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“[T]he ALJ is not qualified to give a medical opinion but may rely on medical evidence in the
record.” Wilcockson v. Astrue, 540 F.3d 878, 881 (8th Cir. 2008).
Dr. Simon treated Simmons for pain management between March 2013 and January
2014. (Tr. 535-36, 736-737, 757-59, 766-68, 785.) Dr. Simon diagnosed Simmons with cervical
and lumbar disease with chronic myofascial dysfunction and degenerative knee disease with an
abnormal gait. (Tr. 535, 768, 758-785.) Dr. Simon prescribed a brace for Simmons’ right knee
and referred her to two surgeons for evaluation of her knees. (Tr. 785.) On September 3, 2013,
Dr. Simon completed a treating physician questionnaire regarding Simmons’ medical
impairments. (Tr. 736-37.) Dr. Simon wrote that he was treating Simmons for neck, arm, back,
and knee pain, chronic headache, gait problems, and herniated and prolapsed discs. (Tr. 736.)
Dr. Simon wrote that he restricted her activities by requiring her to use a cane, wear a knee
brace, take pain medication, limit lifting and carrying, and limit her time standing. (Tr. 737.) He
opined that Simmons was unable to work full-time, because “working will exacerbate her
condition,” sitting increases symptoms, her lumbar spine may require surgery, and she needs a
knee replacement. (Tr. 737.)
The ALJ gave little persuasive weight to Dr. Simon’s opinion, because although he stated
she needed surgery, the surgeon he referred Simmons to stated that she was not a candidate for
surgery. (Tr. 19.) The ALJ also stated that Dr. Simon did not indicate what testing he performed
or provide support for his opinion that Simmons could not sit for long periods of time. (Tr. 19.)
The ALJ found that Dr. Simon’s ultimate conclusion that Simmons could not work full-time was
a decision that was reserved to the Commissioner. (Tr. 19.)
After a careful review of the entire record, the Court concludes that the ALJ did not err in
granting little weight to Dr. Simon’s opinion. First, Dr. Simon’s opinion is very conclusory.

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Although he describes Simmons’ impairments and her current treatment, he provides no specific
support for the functional limitations that he gives in the opinion or the opinion that she would be
unable to work “life long.” Dr. Simon’s opinion regarding her need for surgery also contradicts
the opinion of surgeon that she was not a candidate for surgery after considering her spinal
disease problems 1. (Tr. 784.) Further, an opinion that a claimant is disabled is a determination
reserved to the Commissioner and a statement by a medical source that a claimant is disabled or
unable to work does not require an automatic determination of disability by the Commissioner.
See 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). 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). The RFC determination is
based on all of the evidence in the medical record, not any particular doctor’s treatment notes or
medical opinion. Pearsall, 274 F.3d at 1217. Therefore, the ALJ did not err in giving little
weight to Dr. Simon’s opinion.
IV.

Conclusion
The Court finds that substantial evidence supports the ALJ’s decision as a whole. As

noted earlier, the ALJ’s decision should be affirmed “if it is supported by substantial evidence,
which does not require a preponderance of the evidence but only ‘enough that a reasonable
person would find it adequate to support the decision,’ and the Commissioner applied the correct
legal standards.” Turpin v. Colvin, 750 F.3d 989, 992-993 (8th Cir. 2014) (internal citations
omitted). A review of the record as a whole demonstrates that Simmons has some restrictions in
her functioning and ability to perform work related activities, however, she did not carry her
1

The Court notes that Plaintiff’s counsel refers to a doctor’s note from Dr. John Romito on December 6, 2013 stating
that Simmons “needs to consider a total knee arthroplasty” to support her contention that she needed knee surgery
(Tr. 753.) Dr. Romito then ordered Simmons to return for a follow-up after she consulted with her spine doctors.
(Tr. 753.) At the next follow-up appointment in January 2014, Dr. Romito noted that she was not a candidate for
knee replacements with [the] spinal disease that she has” and he dismissed her from care. (Tr. 784.)

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burden to prove a more restrictive RFC determination. See Pearsall, 274 F.3d at 1217 (it is the
claimant’s burden, not the Social Security Commissioner’s burden, to prove the claimant’s
RFC). Therefore, the Commissioner’s decision will be affirmed.
Accordingly,
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. [Docs. 1, 21.]
IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the
Commissioner affirming the decision of the administrative law judge.

Dated this 2nd day of December, 2015.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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