Butler v. Colvin

Filing 26

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. (Nancy A. Berryhill added. Carolyn W. Colvin terminated.) Signed by District Judge Henry Edward Autrey on 3/27/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL BUTLER,
Plaintiff,
v.
NANCY A. BERRYHILL1,
Acting Commissioner of
Social Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

No. 4:15CV1735 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, et seq. For the reasons set forth below, the Court will
affirm the Commissioner's denial of Plaintiff's application.
Facts and Background
On October 15, 2013 and October 29, 2013, Administrative Law Judge
Robin J. Barber conducted hearings. Plaintiff, Medical Expert Richard A. Hutson,
M.D. and Delores Elvira Gonzalez, a Vocational Expert testified. Plaintiff was
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit.

born on November 15, 1964. He was 48 years old at the time of the hearings.
Plaintiff completed high school and he has completed some college.
Plaintiff testified that he has problems bending to pick up a ball or put his
socks on. Walking is a big issue for him because of numbness in his right leg. He
also has pain in his left leg. Plaintiff further testified that he has had 4 surgeries
since he last worked. The pain in his shoulders is gone since his shoulder surgery,
but he continues to have back pain. He has taken narcotic medication for the pain,
and has had injections as well. Although the medication helps the pain, it does not
completely alleviate it. Plaintiff no longer engages in the hobbies he used to and
does not get out to see family and friends very much. He has trouble mowing his
lawn, and does not go shopping.
The ALJ heard testimony from Dr. Hutson. Dr. Hutson testified that based
upon the medical records he considered, Plaintiff was able to engage in sedentary
work with additional restrictions. Dr. Hutson noted that Plaintiff had no loss of
neuroanatomic functioning and recovered well after his surgeries.
In answer to the ALJ’s interrogatory regarding whether jobs existed in the
national economy considering Plaintiff’s limitations, the VE answered that an
individual could perform the requirements of a doc preparer and press
clipper/cutter/paster. These jobs were consistent with the Dictionary of

-2-

Occupational Titles. The ALJ found there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform.
The ALJ determined in her decision of July 3, 2014 that Plaintiff was not
entitled to a finding of disabled. The Appeals Council denied Plaintiff’s request for
review on October 30, 2015. 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
specific issue in this case is whether substantial evidence in the record supports the
ALJ’s evaluation of Plaintiff’s subjective complaints and the medical opinion
evidence.
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
-3-

(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
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
-4-

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.
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
-5-

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
-6-

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).

-7-

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
employment from the onset date of October 28, 2009. The ALJ found at Step Two
that Plaintiff had the severe impairments of lumbar degenerative disc disease with
fusion surgery, a history of sacroiliitis and fusion surgery, left shoulder
impingement with a rotator cuff tear and a right shoulder slap tear with surgical
repair.
-8-

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 as defined in 20 CFR
404.1567(a), except that he can lift and carry 10 pounds occasionally and less than
10 pounds frequently. Petitioner can stand and walk for two hours of an 8-hour
day and sit for 6 hours of an 8-hour day. Petitioner requires a sit-stand option
where he would not have to leave his workstation but would be allowed to stand
for five minutes of every hour, and these five minutes would not have to be
consecutive. He can occasionally climb stairs, but never climb ladders, ropes, or
scaffolds. Petitioner is able to occasionally stoop, crouch, kneel, and crawl. He
should not lift overhead with the elbows above shoulder level on either side.
Claimant should avoid concentrated exposure to temperature extremes, humidity,
wetness and vibrations. He must also avoid unprotected heights, and hazardous
moving machinery.
At Step Four it was the finding of the ALJ that Plaintiff was not capable of
performing any past relevant work.
Step Five the ALJ concluded that Plaintiff was not under a disability.
-9-

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
860, 863 (8th Cir.2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th
Cir.2005)).
- 10 -

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 evaluate his credibility regarding
his subjective complaints. A review of the record, and the finding of the ALJ
relating to the record, establishes that the ALJ did indeed properly credit Plaintiff’s
subjective complaints.
Plaintiff alleged that he remains in constant pain and cannot do very much
physical activity. He has difficulty cutting the grass or preparing meals. Plaintiff
has a hard time bending over to pick up a ball or to put on his socks. He has
trouble washing his back.
The ALJ found that the statements of Plaintiff regarding his condition and
consequences of same were inconsistent with the record as a whole. The
determination of whether one is disabled considering all symptoms, including pain,
and the extent to which the symptoms can reasonably be accepted as consistent

- 11 -

with the objective medical evidence and other evidence is within the role and
function of the ALJ. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
The objective medical evidence, or lack thereof, is an important factor to
consider in evaluating subjective complaints. Objective medical evidence is a
useful indicator in making reasonable conclusions about the intensity and
persistence of a claimant’s symptoms and the effect those symptoms may have on
a claimant’s ability to work. See 20 C.F.R. § 404.1529(c)(2). Lack of objective
medical evidence is a factor an ALJ may consider. Forte v. Barnhart, 377 F.3d
892, 895 (8th Cir. 2004)(citations omitted). The ALJ noted that Plaintiff’s medical
records show he made good progress with treatment and there were no medical
findings consistent with Plaintiff’s allegations of severe, ongoing pain. Plaintiff
testified that his shoulders were no longer an issue regarding pain. Dr. Mirkin,
M.D., Plaintiff’s treating orthopedic doctor, found he had reached maximum
medical improvement, had undergone work hardening and was able to return to
work without limitation. A lumbar CT scan in 2010 showed mild bilateral
sacroiliitis. Plaintiff was referred for a pain management consultation and the
consulting doctor noted that he did not exhibit pain behavior. He had no spasms,
trigger points, or tenderness, no scoliosis or kyphosis and normal lumbar lordosis.
He had a normal gait and the ability to heel walk, toe walk and squat without
assistance. He had normal sensation and muscle strength in his extremities.
- 12 -

Plaintiff’s treating physician, Dr. Jackman noted Plaintiff was doing well
and that his pain was relatively well controlled. He had been able to reduce his
pain medication and was progressing with physical therapy.
During a neurology examination with Dr. Head, Plaintiff was found to have
full range of motion in his extremities.
Dr. Taylor, Plaintiff’s surgeon for his lumbar surgery in September 2012,
stated that Plaintiff was doing well five weeks after surgery. Plaintiff’s pain was
well controlled with medication and he reported only mild, intermittent pain
without radiculopathy. Plaintiff was highly satisfied with the surgical results. An
examination revealed normal muscle strength, reflexes and lower extremity
sensation.
Dr. Boutwell, Plaintiff’s treating physician, also noted he was doing
exceptionally well since surgery and continued to improve in December, 2012,
February 2013 and March 2013. Plaintiff’s lumbar spine was stable since surgery,
as revealed through imagery. Dr. Boutwell noted Plaintiff was doing well with
only mild to moderate pain at worst without back tenderness and unrestricted
lumbar range of motion in August 2013.
Thus, the objective evidence in the record did not support so many of the
subjective complaints of the Plaintiff. “If an impairment can be controlled by
treatment or medication, it cannot be considered disabling.” Brown v. Astrue, 611
- 13 -

F.3d 941, 955 (8th Cir. 2010) (quoting Brace v. Astrue, 578 F.3d 882, 885 (8th Cir.
2009)).
The ALJ properly considered Plaintiff’s alleged symptoms and pain and
substantial evidence supported the credibility finding. Holley v. Massanari, 253
F.3d 1088, 1091 (8th Cir. 2001) (“As long as substantial evidence in the record
supports the Commissioner’s decision, [the court] we may not reverse it either
because substantial evidence exists in the record that would have supported a
contrary outcome or because we would have decided the case differently.”).
In order to formulate the RFC the ALJ considered and discussed the
opinions of Plaintiff’s primary care providers, the opinions of his surgeons and the
opinions of the non-examining medical expert. In this regard the ALJ found that
the doctors’ opinions were not supported by the record as a whole. Although
Plaintiff’s treating physician’s completed questionnaires setting forth substantial
functional limitations, notes written contemporaneously with visits show Plaintiff
making good progress with pain that was well controlled See Goff v. Barnhart,
421 F.3d 785, 790–91 (8th Cir. 2005) (“[A]n appropriate finding of inconsistency
with other evidence alone is sufficient to discount the opinion.”).
Plaintiff argues that the ALJ erred because of her finding that Plaintiff did
not comply with medical advice to stop smoking and that he had an ulterior motive
in seeking disability, i.e., to receive early retirement. The ALJ considered this
- 14 -

information along with the medical records and Plaintiff’s testimony. She did not
by any means base her decision solely on these two issues. The ALJ, without
question, considered all the evidence in formulating Plaintiff’s RFC and articulated
sound reasons for discounting the medical source opinions and subjective
complaints that were not consistent with the record as a whole. Each of the ALJ’s
findings and conclusions contain a specific basis for same. The ALJ carefully
considered all of the evidence.
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).
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 27th day of March, 2017.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
- 15 -