Dunivan v. Colvin

Filing 30

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 1/4/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARRELL L. DUNIVAN,
Plaintiff,
v.

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

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No. 4:14cv1686 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 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 May 24, 2013, Administrative Law Judge Mary F. Withum conducted a
video hearing at which Plaintiff testified. Plaintiff was 47 years old at the time of
the hearing. Plaintiff did not complete high school, but completed his GED.
Plaintiff had past work experience as a truck driver. He resided with his parents,

and received Medicaid and food stamps. Plaintiff testified that he can drive, but
does not drive very often. He had a valid CDL. As a truck driver, Plaintiff moved
furniture and central air conditioners and furnaces.
Plaintiff testified that he spends most of the day at home, in his bed or in the
living room in a recliner. He is able to bathe himself. It is difficult to get
comfortable. He goes shopping with his parents occasionally, but if he goes, he
usually waits in a chair in the front of the store.
Plaintiff testified that his pain is 7 out of 10 on medication. Plaintiff testified
that he had Cortisone shots, but had not attempted surgery. He had three family
members who had had failed back surgery. He was taking Lyrica for fibromyalgia
and Percocet for pain.
Plaintiff saw a psychiatrist every two months and a therapist every two
weeks. He had panic attacks weekly. He took Clonazepam.
Plaintiff wears braces on his hands; he had a broken wrist that caused a lot of
pain. Plaintiff had successful carpel tunnel surgery, but testified that degenerative
arthritis in his knuckles and joints caused other issues. He had deterioration of his
right shoulder and shoulder spur. His hands were swollen every morning and he
couldn’t make a fist. He could not lift or carry; a gallon of milk was difficult to
lift, and holding his hands on a steering wheel was difficult. He could not move

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his arms too quickly. If he raised his hand above his head, it felt like it was going
to pop out of the joint.
Plaintiff could stand for five to ten minutes and could not stoop, kneel,
crouch or crawl. He could sit for fifteen minutes before having to reposition. He
spent most of his time laying down or sitting in bed.
The ALJ found Plaintiff had the severe impairments of degenerative disc
disease, carpal tunnel syndrome, arthritis, right shoulder arthralgia, depression, and
anxiety.
The Appeals Council denied Plaintiff’s request for review on August 4,
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
decision is not supported by substantial evidence in the record.
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
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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
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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.

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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
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.

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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
(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
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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
activity during the period from the alleged onset date of March 25, 2011. The ALJ
found at Step Two that Plaintiff had the severe impairments of degenerative disc
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disease, carpal tunnel syndrome, arthritis, right shoulder arthralgia, depression, and
anxiety.
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 (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 as defined in 20 CFR 404.1567(b) and
416.967(b) except the Plaintiff can never climb ladders, ropes, or scaffolds, and
must avoid all exposure to unprotected heights. Plaintiff can occasionally stoop,
crouch, kneel, and crawl; Plaintiff can only occasionally reach overhead with his
right arm; he can frequently handle and finger objects bilaterally and he is limited
to simple, routine and repetitive tasks.
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
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.
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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
Plaintiff claims the ALJ posed an incomplete hypothetical question at the
hearing by overlooking objective and subjective evidence supporting Plaintiff’s
shoulder pain and advanced degenerative joint disease as well as side effects of his
medication. Review of the transcript, record evidence, and decision of the ALJ
yields a conclusion wholly contrary to Plaintiff’s position.
The ALJ articulated her reasoning for including and excluding factors in her
decision. Although Plaintiff claimed persistent pain caused by degenerative disc
disease and arthritis in his shoulder, Plaintiff’s impairments have not required
surgical intervention. The record indicates that Plaintiff walks with a normal gait
and station. The record indicates that Plaintiff had normal musculoskeletal
functioning in response to mostly conservative treatment. Plaintiff’s February
2011 MRI of his left shoulder revealed only “mild” impingement, “minimal” fluid
and a possible small partial” tear in the tendon. The x-rays of Plaintiff’s right
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shoulder were largely normal a few months later. The ALJ posed the hypothetical
question based on her determination of credible limitations. Harvey v. Barnhart,

368 F.3d 1013, 1016 (8th Cir. 2004). Indeed, the ALJ thoroughly articulated the
reasons she did not include certain of Plaintiff’s claims: Plaintiff’s medical
records did not support his subjective claims with regard to certain impairments.
Plaintiff also argues that the ALJ failed to consider the Polaski factors
when determining Plaintiff’s credibility. Contrary to Plaintiff’s argument, the
ALJ’s opinion carefully sets out her reasoning for failing to fully credit
Plaintiff’s testimony. No acceptable medical source submitted an opinion
stating Plaintiff was disabled; Plaintiff’s treatment was conservative; when
Plaintiff complied with suggested treatment, his symptoms were effectively
addressed; Plaintiff refused to consider surgery. Substantial evidence supports
the ALJ’s credibility findings, and therefore, the findings will be affirmed.
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. Perkins v.

Astrue, 648 F.3d 892, 900 (8th Cir.2011); Dunahoo v. Apfel, 241 F.3d 1033,
1038 (8th Cir. 2001).
Finally, Plaintiff contends that the ALJ failed to evaluate all the opinion
evidence submitted. As the Secretary correctly argues, the “opinion” from
Great Mines Health Center was partially prepared by a case worker. Further,
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the portion filled out by an unnamed medical provider declined to answer
whether Plaintiff was disabled and opined that further diagnostic examination
was indicated.
Moreover, this opinion addresses a time period before Plaintiff’s alleged
disability onset, and was previously addressed by a different ALJ and was
rejected. And most significantly, the submission fails to express an opinion as
to whether Plaintiff is capable of performing work related activities.
The ALJ’s clear and specific opinion is supported by substantial evidence
in the record, and therefore must 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 4th day of January, 2016.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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