Ebert v. Colvin

Filing 30

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the relief requested in Plaintiffs Complaint and Brief in Support of Complaint is DENIED. IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commissioner affirming the decision of the administrative law judge.IT IS FURTHER ORDERED that the order setting oral argument in this matter is VACATED. 22 Signed by Magistrate Judge Nannette A. Baker on 3/22/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PATRICIA EBERT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:14-CV-1721 NAB

MEMORANDUM AND ORDER
The following opinion is intended to be the opinion of the Court judicially reviewing the
denial of Patricia Ebert’s application for disability insurance benefits 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. 7.] The Court has reviewed the parties’ briefs and the
entire administrative record, including the hearing transcript and the medical evidence. Based on
the following, the Court will affirm the Commissioner’s decision.
I.

Issues for Review
Ebert presents two issues for review. First, Ebert states that the administrative law judge

(ALJ) erred in discrediting her regarding her failure to obtain treatment without asking her why
she had failed to obtain treatment. Second, Ebert states that the ALJ committed reversible error
by failing to order an consultative examination regarding her back pain and spasms. The
Commissioner contends that the ALJ’s decision is supported by substantial evidence in the
record as a whole and should be affirmed.

II.

Procedural History
In 2008, Ebert filed an application for disability insurance benefits. The Social Security

Administration (“SSA”) denied Ebert’s claim and she timely filed a request for hearing before an
administrative law judge (“ALJ”). (Tr. 42-46, 50.) The SSA granted Ebert’s request and the
hearing took place on September 9, 2009. (Tr. 18-38, 411-436.) The ALJ issued a written
decision on October 28, 2009. (Tr. 9-17.) Ebert requested review of the ALJ’s decision from the
Appeals Council. (Tr. 39.) On May 11, 2010, the Appeals Council denied Ebert’s request for
review. (Tr. 1-5.)
Ebert filed an appeal in this Court on July 1, 2010. See Ebert v. Astrue, No. 4:10-CV1171 NAB. On July 18, 2011, this Court reversed and remanded the case to the Commissioner.
Ebert v. Astrue, No. 4:10-CV-1171 NAB, 2011 WL 2838116 (E.D. Mo. July 18, 2011). After
the Court’s decision, the Appeals Council remanded the case to the ALJ and instructed the ALJ
to comply with the Court’s order and offer Ebert a new hearing. (Tr. 512-14.) On February 26,
2013, the ALJ held a second administrative hearing. (Tr. 437-59.) After the hearing, the ALJ
again denied benefits in a decision dated May 15, 2013. (Tr. 372-95.) Ebert filed written
exceptions to the ALJ’s decision to the Appeals Council. (Tr. 366-68.) The Appeals Council
declined to exercise jurisdiction. (Tr. 359-62.) Ebert filed this current appeal on October 8,
2014. [Doc. 1.]
III.

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. § 423(d)(1)(A).

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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). First, the claimant must not be engaged
in substantial gainful activity.

20 C.F.R. § 404.1520(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).

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). If the claimant’s impairments do not meet or equal a listed
impairment, the SSA determines the claimant’s RFC to perform past relevant work. 20 C.F.R.
§ 404.1520(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). 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 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).
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

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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;
(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).

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IV.

Discussion
A.

Credibility Determination

First, Ebert asserts that the ALJ failed to comply with SSR 96-7p, because he discredited
her subjective complaints based on lack of treatment without asking her to provide an
explanation for lack of treatment. The Commissioner responds that Ebert’s lack of treatment or
conservative treatment was one of many credibility factors considered by the ALJ.
In considering subjective complaints, the ALJ must fully consider all of the evidence
presented, including the claimant’s prior work 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.

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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).
A claimant’s statements “may be less credible if the level or frequency of treatment is
inconsistent with the level of complaints, or if the medical reports or records show that the
individual is not following the treatment prescribed and there are no good reasons for this
failure.” SSR 96-7p, 1996 WL 374186 at *7 (July 2, 1996).

The ALJ “must not draw any

inferences about an individual’s symptoms and their functional effects from a failure to seek or
pursue regular medical treatment without first considering any explanations that the individual
may provide, or other information in the case record, that may explain infrequent or irregular
medical visits or failure to seek medical treatment.” Id. “The adjudicator may need to recontact
the individual or question the individual at the administrative hearing in order to determine
whether there are good reasons the individual does not seek medical treatment or does not pursue
treatment in a consistent manner.” Id.
In this case, the ALJ discounted Ebert’s credibility for several reasons. First, the ALJ
found that the objective medical evidence did not support the degree of symptomology and
functional limitations alleged by Ebert. (Tr. 391-92.) Second, the ALJ found that Ebert’s
limited treatment history also suggested that her impairments were not as severe and limited as
she alleged. (Tr. 392.) Third, the ALJ found that Ebert made unsubstantiated allegations and
inconsistent statements concerning her symptoms and pain. (Tr. 393.) Fourth, the ALJ found
that Ebert’s robust activities of daily living were also inconsistent with her allegations of pain

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and functional limitations. (Tr. 393.) Finally, the ALJ cited a lack of motivation to work. (Tr.
393-94.)
The ALJ’s opinion provided a detailed assessment of the reasons why Ebert’s credibility
was discounted. The ALJ considered several factors in evaluating Ebert’s credibility. All of the
factors considered by the ALJ can be considered when assessing credibility in a social security
disability case. See Moore v. Astrue, 572 F.3d 520, 524-25 (8th Cir. 2009) (appropriate for ALJ
to consider conservative or minimal treatment in assessing credibility); 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). A review of the
entire record demonstrates that ALJ did not rely solely upon any one of the factors in the
credibility analysis. SSR 96-7 does not require the ALJ to recontact the claimant and the Court
finds it was not necessary to do so due to the extensive record in this case.

If Ebert’s

conservative treatment was the only negative factor in the credibility analysis, the ALJ may well
have sought additional information. 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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B.

Failure to Develop the Record

Second, Ebert contends that the ALJ failed to develop the record, because he should have
obtained a consultative examination regarding her back pain. The ALJ has a duty to fully
develop the record. Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006). In some cases, this
duty requires the ALJ to obtain additional medical evidence, such as a consultative examination
of the claimant, before rendering a decision. See 20 C.F.R. § 404.1519a(b). “There is no bright
line test for determining when the [Commissioner] has failed to develop the record.

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determination in each case must be made on a case by case basis.” Battles v. Shalala, 36 F.3d
43, 45 (8th Cir. 1994). A claimant for social security disability benefits has the responsibility to
provide medical evidence demonstrating the existence of an impairment and its severity during
the period of disability and how the impairment affects the claimant’s functioning. 20 C.F.R.
§ 404.1512.
“The ALJ is required to order medical examinations and tests only if the medical records
presented to him do not give sufficient medical evidence to determine whether the claimant is
disabled.” McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011) (citing Conley v. Bowen, 781
F.2d 143, 146 (8th Cir. 1986)); see also Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000)
(“‘[I]t is reversible error for an ALJ not to order a consultative examination when such an
evaluation is necessary for him to make an informed decision.’”)). Therefore, “[a]n ALJ is
permitted to issue a decision without obtaining additional medical evidence so long as other
evidence in the record provides a sufficient basis for the ALJ’s decision.” Anderson v. Shalala,
51 F.3d 777, 779 (8th Cir. 1995).

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The Court finds that the ALJ was not obligated to order an additional consultative
examination in this case. As an initial matter, the ALJ did not find that Ebert’s back spasms
were a severe impairment. (Tr. 376.) The ALJ noted that Ebert has not been diagnosed with any
musculoskeletal or other impairments that may be expected to produce her symptoms of back
pain and spasms. (Tr. 376.) The ALJ also stated that there had been no diagnostic imaging,
abnormal clinical findings, or other objective evidence substantiating an impairment affecting
her back. (Tr. 376, 393.) The ALJ found that the record did not reflect complaints of difficulty
walking, standing, sitting, lifting, carrying, or bending to her treatment providers. (Tr. 393.) The
ALJ also noted that although Ebert testified about back pain and mentioned it to her providers a
few times, there were also times that she denied back pain. (Tr. 393.) Based on the foregoing,
the Court finds that pursuant to 20 C.F.R. § 404.1519a(b), the ALJ was not required to obtain
additional evidence regarding Ebert’s back spasms. First, Ebert does not identify the portions of
her doctor’s treatment notes that support her argument that a consultative examination should
have been ordered. Second, although Ebert complained of back pain, none of her doctors found
an impairment regarding her back. It is the claimant’s responsibility to establish that she has an
impairment regarding her back and she has not met that burden.

20 C.F.R. §§ 404.1512,

404.1520(a)(4)(ii). Therefore, the Court finds that the ALJ did not fail to develop the record
regarding Ebert’s back spasms and pain.
V.

Conclusion
Based on the foregoing, 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, 22.]

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IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the
Commissioner affirming the decision of the administrative law judge.
IT IS FURTHER ORDERED that the order setting oral argument in this matter is
VACATED. [Doc. 29.]
Dated this 22nd day of March, 2016.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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