Thomas v. Colvin

Filing 22

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 3/21/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROSE THOMAS,
Plaintiff,
v.

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

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No. 4:15CV314 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 under Title II of the Social Security
Act (Act), 42 U.S.C. §§ 401-434. For the reasons set forth below, the Court will
affirm the Commissioner's denial of Plaintiff's application.
Facts and Background
On April 3, 2013, Administrative Law Judge Mary Ann Poulose conducted a
hearing. Plaintiff appeared in person and the Vocational Expert appeared via
telephone. Plaintiff was born on February 8, 1959. She was 54 years old at the
time of the hearing. Plaintiff did complete high school. Plaintiff had past work
experience as a mail clerk.

Plaintiff testified that she cannot lift over her head and has a hard time doing
her hair because she cannot reach behind due to pain and stiffness in her shoulders.
She also testified that she cannot lift a 24 can case of soda or a gallon of milk.
Plaintiff resided alone in a two family building with her cousin living in the
other upstairs unit. Plaintiff has had surgery on both of her rotator cuffs. The
second surgery was necessary due to over working her right shoulder to
compensate for the lack of ability in her left shoulder. She does her own chores
such as cooking, grocery shopping, and laundry. Plaintiff pays her nephew to do
the sweeping. Plaintiff attends her church, which is about five minutes from her
home.
The ALJ also secured testimony of Cheryl R. Hoyset, a Vocational Expert.
The ALJ found Plaintiff to be disabled from March 9, 2010 through April 23,
2012, but not disabled beyond April 23, 2012. The ALJ found Plaintiff had the
severe impairments of left shoulder rotator cuff tear and frozen shoulder status post
surgeries resulting in a right shoulder adhesive capsulitis and partial rotator cuff
tear status post-surgery. The ALJ also found that Plaintiff did 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 (20 CFR 404.1520 (d), 404.1525, 404.1526.

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The Appeals Council denied Plaintiff’s request for review on December 24,
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
Residual Functional Capacity determination was not supported by the evidence and
the finding of improvement as of 4/24/2012 was incorrect; that the ALJ failed to
properly evaluate and set forth sufficient reasons for the credibility determination;
and the testimony of the vocational expert was inconsistent with the Dictionary of
Occupational Titles and Selected Characteristics of Occupations and the ALJ failed
to properly resolve the inconsistency.
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
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
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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
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
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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.
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

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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.
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
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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
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).

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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 since March 9, 2010. The ALJ found at Step Two that from March 9, 2010
through April 23, 2012, Plaintiff was under a disability, and Plaintiff had the
severe impairments of left shoulder rotator cuff tear and frozen shoulder status post
surgeries resulting in a right shoulder adhesive capsulitis and partial rotator cuff
tear status post-surgery.
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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 (404.1520(d), 404.1525, 404.1526).
As required, prior to Step Four, the ALJ determined that Plaintiff had the
residual functional capacity to perform sedentary work except without overhead
lifting. From March 9, 2010 through April 23, 2012, Plaintiff was unable to
perform any past relevant work. Medical improvement occurred as of April 24,
2012, and the ALJ found that Plaintiff’s disability ended on April 24, 2012.
At Step Four it was the finding of the ALJ that Plaintiff was not capable of
performing past relevant work as a mail processing clerk. Plaintiff’s medical
improvement that occurred was found to be relevant to the ability to work because
there was an increase in Plaintiff’s RFC. The ALJ found Plaintiff’s RFC
beginning April 24, 2012 to be the ability to perform a full range of work at all
exertional levels but with the nonexertional limitation of the inability to engage in
overhead reaching.
Step Five the ALJ concluded that considering the Plaintiff’s age, education,
work experience, and residual functional capacity, there are other jobs that exist in
significant numbers in the national economy that Plaintiff also can perform, such
as office helper, information clerk and food service worker. The ALJ, therefore,
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found Plaintiff not disabled after April 23, 2012, 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 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
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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
Plaintiff asserts the ALJ did not properly determine that there has been
medical improvement. Medical improvement is defined as the decrease in the
medical severity of impairments that were present at the time of the most favorable
medical decision that the Plaintiff was disabled or continued to be disabled. 20
C.F.R. § 404.159(B)(1). In determining medical improvement, the severity of
Plaintiff's current condition is compared with the severity of her condition as of the
date upon which Plaintiff was last determined to be disabled. 20 C.F.R. §
404.1594(b)(7). Once it has been established that there has been a medical
improvement, the Commissioner must determine whether Plaintiff has the RFC to
perform her past work. 20 C.F.R. § 404.1594(f)(7). If she is able to do so, the
claimant's disability will be found to have ended. Id. If Plaintiff cannot engage in
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her past relevant work, the Commissioner must consider whether Plaintiff can
perform other jobs with her current RFC. 20 C.F.R. § 404.1594(f)(8).
Review of the transcript, record evidence, and decision of the ALJ yields a
conclusion wholly contrary to Plaintiff’s position.
The record sets out the medical evidence upon which the ALJ relied.
Plaintiff’s physician released her to work without restriction on April 24, 2012.
Subsequent to Plaintiff’s surgeries and prior to the medical release, Plaintiff
participated in physical therapy with good results. She gained range of motion and
strength, but did have stiffness and pain. Dr. Lehman found on March 29, 2012
that Plaintiff was doing extremely well and exhibited normal postural and general
trunk strength, improved range of motion and no evidence of motor mechanical
loss. Dr. Lehman recommended Plaintiff work for a week with a lifting restriction
and without repetitive overhead work, but thereafter could work without
restriction. On April 24, 2012, Plaintiff’s office visit to Dr. Lehman revealed full
range of motion in both shoulders and excellent strides mechanically.
Plaintiff’s medical records after this determination provide further support
for the medical improvement finding. In May, 2012, Dr. Lehman rated Plaintiff at
an eight per cent loss of left shoulder function and a minimal loss of the right
shoulder function.

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Plaintiff did report some shoulder and neck pain in subsequent visits to Dr.
Lehman, however, in April, 2013, Plaintiff was not taking any prescription
medication for pain.

The record here substantially supports the ALJ’s RFC determination
based on Plaintiff’s medical improvement.
Plaintiff contends that the ALJ failed to properly evaluate and set forth
sufficient reasons for the credibility determination. Quite the contrary. The ALJ
analyzed each of Plaintiff’s activities and her ability to perform household tasks.
Plaintiff admittedly could drive, shop, do laundry, and attend church services, for
example. Plaintiff simply is unable to perform tasks involving overhead reaching;
an action for which the ALJ’s determination accounts and restricts Plaintiff in the
jobs that are available in the national economy. The ALJ accounted for Plaintiff’s
pain when she is performing overhead reaching and excluded that task from her
determination. Moreover, during the time when Plaintiff was undergoing surgery
and recovery therefrom, the ALJ recognized and found that Plaintiff was indeed
disabled and could not work. When Plaintiff’s condition had medically improved,
as fully developed in the record, the ALJ adhered to her duty to assess Plaintiff’s
abilities.
Plaintiff also argues that the inconsistency between the Dictionary of
Occupational Titles and jobs identified by the vocational expert was not properly
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resolved. However, as the Commissioner points out that the VE did indeed
explain: the DOT dos not distinguish between overhead reaching and reaching in
various other directions. Additionally, in the VE’s experience, the types of jobs
she articulated based on Plaintiff’s abilities are jobs in which overhead reaching is
not prevalent. Clearly, an explanation of any possible conflict was presented.
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).
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 21st day of March, 2016.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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