Wallace v. Colvin

Filing 30

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiffs complaint is DISMISSED with prejudice. A separate judgment will accompany this Order. Signed by District Judge John A. Ross on 3/31/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TRESSIA WALLACE,
Plaintiff,

v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:15-CV-01811 JAR

MEMORANDUM AND ORDER

This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security's final decision denying Plaintiff Tressia Wallace's ("Wallace") application for
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.

I.

Background

Plaintiff Tressia Wallace filed an application for disability insurance benefits under Title
II of the Social Security Act, 42 U.S.C. §§ 401 et seq., on May 17, 2012 (Tr. 272-273.) The
Social Security Administration denied Wallace's claim on September 5, 2012 (Tr. 212-220.)
Wallace filed a timely request for a hearing before an administrative law judge ("ALJ") (Tr. 230231.) Following an April 24, 2014 hearing (Tr. 165-188), the ALJ issued a written decision on
July 7, 2014, upholding the denial of benefits (Tr. 189-211.) Wallace requested review of the
ALJ's decision by the Appeals Council (Tr. 161.) On November 6, 2015, the Appeals Council
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. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).

denied her request for review (Tr. 1-7.) Thus, the decision of the ALJ stands as the final decision
of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).
Wallace filed this appeal on December 9, 2015 (Doc. No. 1.) The Commissioner filed an
Answer on March 3, 2016 (Doc. No. 14.) Wallace filed a Brief in Support of her Complaint
(Doc. No. 24), and the Commissioner filed a brief in support of the Answer (Doc. No. 29.)
Wallace has not filed a reply brief, and time for her to do so has expired.

II.

Facts

The Commissioner attached a statement of facts to her Brief in Support of the Answer;
Wallace did not respond to the Commissioner's statement of facts or submitted her own
statement of facts. The Court will therefore adopt the Commissioner's Statement of Facts (Doc.
No. 29-1), as the Court's review of the record shows that the adopted facts are accurate and
complete. Specific facts will be discussed as part of the analysis.

Ill.

Standards

The Social Security Act defines as disabled a person who is "unable to engage in any
substantial gainful activity by reason of any medically de!erminable 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 Brantley v. Colvin, No. 4:10CV2184 HEA, 2013 WL 4007441, at *2 (E.D. Mo. Aug. 2,
2013). The impairment must be "of such severity that [the claimant] is not only unable to do his
previous work but cannot, considering her 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 she lives, or whether a specific job

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vacancy exists for her, or whether she would be hired if she applied for work." 42 U.S.C. §
1382c(a)(3)(B).
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920(a), 404.1520(a). "If a claimant
fails to meet the criteria at any step in the evaluation of disability, the process ends and the
claimant is determined to be not disabled." Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)
(quoting Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). First, the claimant
must not be engaged in "substantial gainful activity." 20 C.F.R. §§ 416.920(a), 404.1520(a).
Second, the claimant must have a "severe impairment," defined as "any impairment or
combination of impairments which significantly limits [claimant's] physical or mental ability to
do basic work activities." 20 C.F.R. §§ 416.920(c), 404.1520(c). "The sequential evaluation
process may be terminated at step two only when the claimant's impairment or combination of
impairments would have no more than a minimal impact on [his or] her ability to work." Page v.

Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605
(8th Cir. 2001)).
Third, the claimant must establish that his or her impairment meets or equals an
impairment listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has
one of, or the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant's age, education, or work history. Id
Before considering step four, the ALJ must determine the claimant's residual functional
capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as ''the most a claimant
can do despite [her] limitations." Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20
C.F.R. § 404.1545(a)(l)). At step four, the ALJ determines whether the claimant can return to

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her past relevant work, by comparing the claimant's RFC with the physical and mental demands
of the claimant's past relevant work. McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011). If the
claimant can still perform past relevant work, she will not be found to be 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 see if the claimant can make an adjustment to other work in the national economy. 20 C.F.R.
§§ 416.920(a)(4)(v). If the claimant cannot make an adjustment to other work, then she will be
found to be disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v). Through step four, the
burden remains with the claimant to prove that she is disabled. Brantley, 2013 WL 4007441, at
*3 (citation omitted). 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 "The ultimate burden of persuasion to prove disability, however, remains with the
claimant." Meyerpeter v. Astrue, 902 F. Supp. 2d 1219, 1229 (E.D. Mo. 2012) (citing Warner v.
Heckler, 722 F.2d 428, 431 (8th Cir. 1983)).

The Court's role on judicial review is to determine whether the ALJ's findings are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d 935,
942 (8th Cir. 2009). In determining whether the evidence is substantial, the Court considers
evidence that both supports and detracts from the Commissioner's decision. Cox v. Astrue, 495
F.3d 614, 617 (8th Cir. 2007). As long as substantial evidence supports the decision, the Court
may not reverse it merely because substantial evidence exists in the record that would support a
contrary outcome or because the Court would have decided the case differently. See Krogmeier
v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).

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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 and 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 physicians;
(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.
Brandv. Sec'y of Dept. ofHealth, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).

IV.

The ALJ's Decision

The ALJ determined that Wallace met the insured status requirements of the Social
Security Act through December 31, 2013, and that she had not engaged in substantial gainful
activity since July 13, 2009, the alleged onset date of disability (Tr. 170.) The ALJ determined
that Wallace had the following severe impairments: disorders of the spine, status post right
peroneal tenosynovectomy times two, status post right retrocalcaneal bursectomy, status post
right knee arthroscopy and synovectomy, right knee degenerative joint disease, diabetes mellitus,
and obesity (Tr. 170-171.) The ALJ further found that no impairment or combination of
impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix I. (Tr. 171.)
After considering the entire record, the ALJ determined that Wallace had the RFC to
perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she
would be unable to climb ropes, ladders, and scaffolding; only frequently would be able to stoop,

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kneel, crouch, and crawl; only occasionally be able to push and pull with the right foot; and must
always avoid the hazards ofheights (Tr. 171-180).
IV. Discussion
In this appeal, Wallace raises three arguments:

(1) that the ALJ failed to properly.

evaluate her pain complaints; (2) that the ALJ improperly discounted her credibility; and (3) that
the ALJ' s RFC determination is not supported by substantial evidence.
A. The ALJ's Evaluation of Wallace's Pain Complaints and Credibility Determination
The Court will first consider the ALJ's credibility determination, as the ALJ's evaluation
of Wallace's credibility is essential to the determination of her other arguments. See Wildman v.

Astrue, 596 F.3d 959, 969 (8th Cir. 2010) ("[The plaintiff] fails to recognize that the ALJ's
determination regarding her RFC was influenced by his determination that her allegations were
not credible."); Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005) ("The ALJ must first
evaluate the claimant's credibility before determining a claimant's RFC."); Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002). In evaluating a claimant's credibility, the ALJ
should consider the claimant's daily activities; the duration, frequency, and intensity of the
symptoms; precipitating and aggravating factors; dosage, effectiveness, and side effects of
medication; and functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
The claimant's relevant work history and the absence of objective medical evidence to support
the complaints may also be considered, and the ALJ may discount subjective complaints if there
are inconsistencies in the record as a whole. Choate v. Barnhart, 457 F.3d 865, 871 (8th Cir.
2006) (citing Wheeler v. Apfel, 224 F.3d 891, 895 (8th Cir. 2000)). The ALJ must make express
credibility determinations and set forth the inconsistencies which led to his or her conclusions.

Id. (citing Hall v. Chafer, 62 F.3d 220, 223 (8th Cir. 1995)). The Court will uphold an ALJ's

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credibility findings, so long as they are adequately explained and supported. Ellis v. Barnhart,
392 F.3d 988, 996 (8th Cir. 2005).
Wallace argues that the ALJ failed to discuss all of the Polaski factors; however, the
Court concludes that the ALJ adequately acknowledged and discussed the factors before making
a credibility determination. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (an ALJ need
not methodically discuss each Polaski factor if the factors are acknowledged and examined prior
to making a credibility determination). The ALJ discredited Wallace's allegations for several
reasons, including a lack of objective evidence to support her subjective complaints of pain,
breaks in treatment for her allegedly disabling conditions, and her limited past earnings. The
Court will address each of these reasons in turn.
1. Lack of Objective Evidence to Support Wallace's Pain Complaints
The ALJ concluded that Wallace's knee pain, back pain, and ankle pain caused Wallace
limitations to some extent, but the ALJ factored those limitations into her RFC. In so doing, the
ALJ considered the objective medical evidence at length. As to Wallace's allegation of disabling
ankle pain, the ALJ noted that examinations of Wallace's ankle in May 2009 and June 2009
revealed tenderness, but her ankle "[was] otherwise largely unremarkable." (Tr. 177, 592.) In
August 2011, a physical therapist reported that Wallace was able to bend, reach overhead, and
reach behind without restriction, and that Wallace reported independence with her self-care and
light activities of daily living (Tr. 608, 610.) Moreover, in January 2010, a physician described
Wallace's ankle as "clinically stable." (Tr. 1090.) In December 2013, a physician observed that
her right ankle displayed normal range of motion and muscle strength (Tr. 1159.) Notably, in
November 2013, Dr. Krause, a board certified orthopedic surgeon, opined that Wallace did not

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require further treatment on her lower right extremity, and that he saw "no reason [Wallace]
cannot be working full duty without restrictions." (Tr. 1027.)
With regard to Wallace's claim of disabling knee pain, the ALJ correctly noted that the
record was inconsistent with her subjective complaints of pain. On multiple occasions, she had
complained of right knee pain, but her treating physicians had noted only "mild" or "very mild"
arthritic changes to her right knee and with 135 to 140 degrees of flexion (Tr. 1124-25, 1128.)
Moreover, as to Wallace's claim of disability due to spine disorders, the ALJ similarly
found that the objective medical evidence did not support a disability finding. The ALJ
referenced numerous computerized tomography (CT) and magnetic resonance imaging (MRI)
images which revealed spinal abnormalities the ALJ considered sufficient to support a finding of
some level of limitation, but not disability. More specifically, a CT scan of Wallace's spine taken
in or around October 2011 was "unremarkable," showing no fractures, subluxation, or disc space
narrowing; the ALJ determined that it was supportive of a finding of some limitation. An MRI
taken in February 2012 showed intact disc space and vertebral body heights, with no evidence of
fracture, spondylolysis, or spondylolisthesis. An April 30, 2012 MRI of Wallace's lumbar spine
demonstrated degenerative changes; the ALJ concluded that these changes also were not of
sufficient severity to warrant a finding of disability. In light of the absence of objective medical
evidence to support Wallace's pain complaints as well as inconsistencies between her statements
and the evidence of record as a whole, the Court concludes that substantial evidence supports the
ALJ's decision to discount her subjective complaints of disabling pain. See Polaski, 739 F.2d at
1322 (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).
2. Breaks in Treatment

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The Court also concludes that the ALJ did not err by considering Wallace's breaks in
pursuing treatment in assessing her credibility. See Edwards v. Barnhart, 314 F.3d 964, 967 (8th
Cir. 2003) ("An ALJ may discount a claimant's subjective complaints of pain based on the
claimant's failure to pursue regular medical treatment.") (citation omitted); see also Casey v.

Astrue, 503 F.3d 687, 693 (8th Cir. 2007) (noting that the claimant sought treatment "far less
frequently than one would expect based on the [symptoms] that [he] alleged"); Black v. Apfel,
143 F.3d 383, 386 (8th Cir. 1998). The ALJ noted that there was no evidence that Wallace had
sought treatment for her right ankle after her second surgery, which suggested "either no or
tolerable symptomatology." (Tr. 178.) Also, Wallace first underwent surgery on her right ankle
in March 2010, but there is no record of any follow-up treatment on her ankle until September
2010, or six months later. After that appointment, Wallace's next appointment appeared to be in
March and April 2011, when she complained to her physician about pain, tenderness, and
swelling. Wallace did not appear to go to another follow-up appointment until October 2011.
There are similar breaks in Wallace's treatments for her knee, as the record shows she presented
with knee pain in September 2010, but did not follow up with right knee treatments until March
2011. Thus, the Court finds that the ALJ properly considered these breaks in Wallace's treatment
in assessing Wallace's credibility as to her subjective complaints of pain. See Casey, 503 F.3d at
693; Edwards, 314 F.3d at 967.
3. Wallace's Past Earnings
The ALJ also did not err by considering Wallace's work history in assessmg her
credibility. A long and continuous past work record with no evidence of malingering is a factor
supporting credibility of assertions of disabling impairments. See Allen v. Califano, 613 F.2d
139, 147 (6th Cir. 1980). For the same reason, an ALJ may discount a claimant's credibility

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based on her poor work record. See Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005) (ALJ
may properly consider claimant had not worked for several years before filing SSI application);
Ownbey v. Shalala, 5 F.3d 342, 344 (8th Cir. 1993).

Here, the ALJ properly concluded that Wallace's poor work record detracted from her
credibility. Wallace reported earnings of $337.29 in 1999; $1,275.75 in 2000; $10,250.19 in
2001; $2,281.70 in 2002; and $0 in 2005 (Tr. 282.) Wallace claims that her low earnings can be
attributed to her working in minimum wage jobs. In response, the Commissioner contends that
Wallace earned considerably more than minimum wage in several jobs, yet reported low
earnings in many other years. The Court is not persuaded by Wallace's contention that her
minimal past earnings reflect only low wages, not minimal employment. Although Wallace
reported substantially higher earnings in 1998, 2006, and 2007, her minimal income in other
years evidences an inconsistent work history. Wallace's reported earnings in several years are so
low that they cannot be fully explained by the fact she was working in a minimum wage job. The
ALJ thus did not err in discounting Wallace's credibility based on her history of low earnings.
For these reasons, the Court concludes that the ALJ's determination as to Wallace's
credibility is supported by substantial evidence in the record. See Krogmeier, 294 F.3d at 1022
(substantial-evidence standard of review); see also Steed v. Astrue, 524 F.3d 872, 876 (8th Cir.
2008) (the ALJ is in the best position to observe a claimant's hearing testimony and to asses her
credibility). The ALJ properly considered the absence of objective medical evidence to support
Wallace's allegations of disabling pain, and permissibly concluded that her subjective complaints
were inconsistent with the record as a whole.

B. The ALJ's RFC's Determination

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Wallace also argues that the ALJ' s RFC is not supported by substantial evidence, as it "is
not based on any physician's opinion, and instead [the ALJ's] interpretation of the raw medical
evidence of record from [Wallace's] treating physicians." (Doc. No. 24 at 9.) Wallace further
contends that the ALJ did not adequately explain the conclusion that she is able to perform light
work, a conclusion she argues was not based upon substantial evidence in the record.
The ALJ must determine a claimant's RFC 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 Myers v. Colvin, 721 F.3d 521, 527 (8th Cir.
2013) (RFC must be determined based on all relevant evidence, including medical records,
observations of treating physicians and others, and claimant's own description of her limitations,
and supported by some medical evidence). "Because a claimant's RFC is a medical question, ·an
ALJ's assessment of it must be supported by some medical evidence of the claimant's ability to
function in the workplace. However, there is no requirement that an RFC finding be supported
by a specific medical opinion." Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (internal
quotations and citations omitted).
"[T]he ALJ does not have to rely entirely on a doctor's opinion in formulating a
claimant's RFC, nor is he limited to choosing an RFC based on one of the medical opinions of
record." Harris v. Astrue, No. 12-5031-CV-SW-DGK-SSA, 2013 WL 1628412, at *3 (W.D. Mo.
Apr. 16, 2013) (citing Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012)). "[T]here is no
requirement in the regulations for a direct correspondence between an RFC finding and a specific
medical opinion on the functional capacity in question." Chapo, 682 F.3d at 1288. However, the
RFC must be supported by at least some medical evidence, such as treatment records, laboratory
results, or other objective testing. See Social Security Ruling 96-8p.

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Here, the ALJ properly considered the medical evidence of record and Wallace's
credibility in determining the RFC. Specifically, the ALJ extensively considered and
summarized the voluminous medical evidence in the record, and discussed how and why the
medical records supported his conclusions as to Wallace's ability to perform various workrelated tasks. See Steed, 524 F.3d at 876; Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000).
Moreover, the ALJ did not err by declining to rely on either of the medical opinions offered in
this case, as the ALJ had discredited the opinion of Richard Hulsey and Dr. James Morgan's
opinion related only to Wallace's mental condition. See Martise v. Astrue, 641 F.3d 909, 927
(8th Cir. 2011) ("[T]he 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."). The Court thus concludes
that the ALJ' s RFC determination is supported by substantial evidence in the record. See
Krogmeier, 294 F.3d at 1022.
VI.

Conclusion

For the foregoing reasons, the Court finds there is substantial evidence in the record to
support the ALJ's decision. Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and

Plaintiffs complaint is DISMISSED with prejudice. A separate judgment will accompany this
Order.
Dated this 3 lst day of March, 2017.

.~a

.

. ROSS
D STATES DISTRICT JUDGE

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