Oatis v. Colvin

Filing 24

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief requested in Plaintiffs Complaint and Brief in Support of Complaint is DENIED. [Docs. 1 , 13 .] IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commission er affirming the decision of the administrative law judge. IT IS FURTHER ORDERED that the Clerk of Court shall substitute Nancy A. Berryhill for Carolyn W. Colvin in the court record of this case. Signed by Magistrate Judge Nannette A. Baker on 1/25/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

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

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Case No. 4:15-CV-1867 NAB

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 Edward Oatis’ application for supplemental security
income under the Social Security Act, 42 U.S.C. § 416 et seq. Oatis alleged disability due to
injury to right wrist, high blood pressure, and trouble understanding. (Tr. 201.) The parties have
consented to the exercise of authority by the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). [Doc. 8.] The Court has reviewed the parties’ briefs and the
entire administrative record, including the hearing transcripts and the medical evidence. The
Court heard oral argument in this matter on January 25, 2017. For the reasons set forth below,
the Court will affirm the Commissioner’s final decision.

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At the time this case was filed, Carolyn W. Colvin was the Acting Commissioner of Social Security. Nancy A.
Berryhill became the Acting Commissioner of Social Security on January 20, 2017. When a public officer ceases to
hold office while an action is pending, the officer’s successor is automatically substituted as a party. Fed. R. Civ. P.
25(d). Later proceedings should be in the substituted party’s name and the Court may order substitution at any time.
Id. The Court will order the Clerk of Court to substitute Nancy A. Berryhill for Carolyn W. Colvin in this matter.

I.

Issues for Review
Oatis presents one issue for review. He contends that the residual functional capacity

(RFC) is not supported by substantial evidence for three reasons:

(1) failure to include

manipulative limitations due to Oatis’ severe impairment of dominant right upper extremity,
(2) erroneous finding that he could perform work at the medium exertional level, and (3) an
unsupported credibility analysis. The Commissioner asserts that the ALJ’s decision is supported
by substantial evidence in the record as a whole and should be affirmed.
II.

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. § 416(i)(1)(A).
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
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

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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).
III.

Discussion
Oatis contends that the ALJ’s RFC determination is not supported by substantial

evidence.

Oatis states that the ALJ erroneously failed to include sufficient manipulative

limitations of the dominant right upper extremity, erroneously found that he could perform work
at the medium exertional level, and improperly discounted his credibility.
The RFC is defined as what the claimant can do despite his or her limitations, and
includes an assessment of physical abilities and mental impairments. 20 C.F.R. § 416.945(a).
The RFC is a function-by-function assessment of an individual’s ability to do work related

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activities on a regular and continuing basis. 2 SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).
It is the ALJ’s responsibility to determine the claimant’s RFC based on all relevant evidence,
including medical records, observations of treating physicians and the claimant’s own
descriptions of his limitations. Pearsall, 274 F.3d at 1217. An RFC determination made by an
ALJ will be upheld if it is supported by substantial evidence in the record. See Cox, 471 F.3d at
907. “[T]he ALJ is not qualified to give a medical opinion but may rely on medical evidence in
the record.” Willcockson v. Astrue, 540 F.3d 878, 881 (8th Cir. 2008). In making a disability
determination, the ALJ shall “always consider the medical opinions in the case record together
with the rest of the relevant evidence in the record.” 20 C.F.R. § 416.927(b). “A disability
claimant has the burden to establish her RFC.” Eichelberger, 390 F.3d 584, 591 (8th Cir. 2004)
(citing Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004)). The 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.

Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011).

The RFC

determination is based on all of the evidence in the medical record, not any particular doctor’s
treatment notes or medical opinion.
In this action, the ALJ found that Oatis had the severe impairments of benign essential
hypertension, obesity, and residuals of status-post remote right wrist surgical repair. (Tr. 13.)
The ALJ determined that Oatis had the RFC to perform medium work 3 with the following
limitations: (1) no lifting more than 50 pounds occasionally and 25 pounds frequently; (2) no
standing or walking more than six hours in an 8 hour workday with normal work breaks; (3) no

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A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR
96-8p, 1996 WL 374184, at *1.
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“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds. 29 U.S.C. § 416.967(c).

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constant use of the dominant right upper extremity for fine manipulation (fingering); and
(4) limited to performing simple, routine, repetitive tasks. (Tr. 15.)
A.

Credibility

First, the Court will address Oatis’ claim that the credibility determination is not
supported by substantial evidence. 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.
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

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court, the ALJ’s credibility assessment must be based on substantial evidence. Rautio v. Bowen,
862 F.2d 176, 179 (8th Cir. 1988).
In this case, the ALJ discredited Oatis’ credibility for several reasons. The ALJ noted
that Oatis never worked more than sporadically and had never demonstrated a consistent
motivation to work. (Tr. 16.) The ALJ also stated that Oatis’ daily activities are inconsistent
with his allegations of disabling symptoms and limitations. (Tr. 16.) The ALJ noted that no
doctor has given Oatis work-related restrictions and he has required minimal or conservative
treatment during the relevant period of alleged disability. (Tr. 16.) The ALJ also noted that
Oatis had not sought or required medical treatment for his history of right wrist repair surgery.
(Tr. 17.) Oatis contends that the ALJ improperly evaluated his credibility by failing to account
for his testimony that he worked for himself in construction up until his injury occurred in 2005
and mischaracterized his activities of daily living. Oatis also notes that the ALJ incorrectly
stated that he did not require the use of prescribed orthotic or assistive devices. Finally, Oatis
stated that he testified that he was unable to obtain sufficient treatment due to lack of finances.
The ALJ considered several factors in evaluating Oatis’ credibility. All of the factors
considered by the ALJ can be considered when assessing credibility in a social security disability
case. See Julin v. Colvin, 826 F.3d 1082, 1087 (8th Cir. 2016) (ALJ reasonably concluded that
claimant’s sporadic work history raises some questions as to whether the current unemployment
is truly the result of medical problems); 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).

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In this case, the record supports the ALJ credibility finding regarding Oatis’ lack of work
history. Oatis did not have any reported earnings between 1992 and 2013. (Tr. 178, 183.) His
most recent reported earnings occurred in 1991. (Tr. 178, 183.) Oatis only reported 4 quarters
of work in 1987, 1988, and 1990. (Tr. 178.) Notwithstanding Oatis’ testimony that he did work,
he “is either untruthful in reporting his income or untruthful in portraying his work history.”
Therefore, the ALJ could discount his credibility on this basis. Wright v. Colvin, 789 F.3d 847,
854 (8th Cir. 2015).
Next, the record shows that Oatis regularly attended the doctor for follow-up to monitor
his high blood pressure and obesity during the relevant time period, but had no treatment for his
right wrist injury. Oatis has presented no evidence that he required ongoing treatment for his
prior right wrist injury or that he was denied access to care based on financial reasons. Further,
although Oatis alleged substantial physical limitations, there is no support in the medical record
that indicate such limitations are necessary. Finally, the ALJ’s erroneous statement that Oatis
had not required the use of an orthotic or assistive device was a harmless error. 4 See Byes v.
Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (to show that an error was not harmless, a claimant
must provide some indication that the ALJ would have decided the case differently if the error
had not occurred).
A review of the entire record demonstrates that ALJ did not rely solely upon any one of
the factors in the credibility analysis. 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

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The ALJ’s opinion contains the statement, “There is no evidence the claimant requires the use of prescribed
orthotic or assistive devices.” (Tr. 16.) The medical record indicates that a podiatrist recommended foot orthotics
for Oatis’ flat foot and joint instability of the ankle/foot. (Tr. 573.) This factual error does not affect the outcome of
the ALJ’s decision.

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foregoing, the Court finds that the ALJ’s credibility determination was supported by substantial
evidence in the record as a whole.
B.

Manipulative Limitations

Next, Oatis asserts that the ALJ failed to include sufficient limitations regarding
manipulation in his right dominant upper extremity. The administrative record indicates that
Oatis had right wrist surgery in 2005 and received physical therapy for several months after the
surgery. (Tr. 264-305, 307-334). After this injury Oatis applied for social security benefits
twice, in 2008 and 2011 respectively. Both applications were denied. (Tr. 59-64, 77-84.) The
ALJ’s opinion noted that those two prior applications were closed and res judicata applied. (Tr.
11.) Therefore, the ALJ was only considering whether Oatis was disabled at any time after the
last unfavorable hearing decision on May 22, 2012. (Tr. 11.)
During those prior applications, Oatis had two consultative examinations, which occurred
on November 7, 2007 and May 10, 2011. (Tr. 335-39, 362-66.) Both examinations were
normal, except that Oatis’ grip strength was 4/5 in his right hand and his upper right extremity
strength was 4/5. (Tr. 338, 365.) It was noted that Oatis complained of pain and weakness and
experienced difficulty picking up a safety pin during the 2011 visit. (Tr. 365.) In this action, the
ALJ found that Oatis was limited to no constant fingering with the dominant right hand. (Tr. 15,
17.) Oatis contends that the consultative examinations from 2007 and 2011 should have been
considered by the ALJ when determining the manipulative limitations and if he had considered
them, the manipulative limitations would have been greater. The ALJ did not mention the
consultative examinations in the opinion, but stated that he considered the entire record. The
ALJ cited to the medical evidence and Oatis’ hearing testimony regarding the limitations in use
of his right hand and shoulder. (Tr. 16-18.)

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“Res judicata bars subsequent applications for SSDI and SSI based on the same facts and
issues the Commissioner previously found to be insufficient to prove the claimant was disabled.”
Hillier v. Soc. Sec. Admin., 486 F.3d 359, 364 (8th Cir. 2007). “If res judicata applies, the
medical evidence from the initial proceeding cannot be subsequently reevaluated.” Id. at 365.
“Res judicata only precludes subsequent applications for SSDI and SSI if the claimant has not
presented any new evidence that [his] condition changed or deteriorated since the prior
proceeding.” Id. “New evidence includes both facts and issues that differ from the facts and
issues of concern at the prior proceeding, as well as evidence that was not part of the record in
the prior proceeding.” Id. “Especially in the context of a progressive disease or a degenerative
condition, evidence that is offered as proof of disability and not found persuasive by an ALJ in a
prior proceeding may be considered in a subsequent proceeding in combination with the new
evidence for the purpose of determining if the claimant has become disabled since the ALJ’s
previous decision.” Id.
In this action, Oatis has not produced any evidence of a deterioration of his condition
regarding his right wrist injury. Res judicata applies in this case and the ALJ was not required to
consider the 2007 and 2011 consultative examinations other than as longitudinal evidence. Even
if the ALJ had considered the consultative examinations, Oatis has the burden to show that the
consultative examination in combination with the “new” evidence since the last denial supports a
finding of disability. Hillier, 486 F.3d at 385. He has not done so. The Court has already found
that the ALJ did not err in discounting the credibility of Oatis’ testimony. In conjunction with a
medical record lacking evidence of continuing physical restrictions or treatment for the right
wrist injury and mild limitations indicated in the most recent consultative examinations, the
Court cannot find that the ALJ erred in determining the manipulative limitations for the RFC.

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C.

Medium Level Work

Finally, Oatis contends that the ALJ failed to properly explain why Oatis could perform
medium work despite his limitations. In this case, the ALJ found that while Oatis’ obesity
“imposed some diminution in mobility and stamina,” it did not significantly reduce his overall
functional capacity. (Tr. 17.) The ALJ also noted that Oatis’ physical examinations were
relatively unremarkable, except for his hypertension and “all other documented impairments
were minor or acute illnesses resulting in no significant long-term functional limitations or
complications.” (Tr. 17.) The Court finds that the ALJ adequately expressed the reasoning for
the RFC determination, including the medium exertional limit. The ALJ must form the RFC
based on a review of all the evidence in the record, however, it is the claimant’s burden to prove
the RFC. A review of the record as a whole demonstrates that Oatis has some restrictions in his
functioning and ability to perform work related activities, however, he did not carry his burden to
prove a more restrictive RFC determination. See Pearsall, 274 F.3d at 1217 (it is the claimant’s
burden, not the Social Security Commissioner’s burden, to prove the claimant’s RFC).
IV.

Conclusion
The Court finds that substantial evidence supports the ALJ’s decision as a whole. As

noted earlier, the ALJ’s decision should be affirmed “if it is supported by substantial evidence,
which does not require a preponderance of the evidence but only ‘enough that a reasonable
person would find it adequate to support the decision,’ and the Commissioner applied the correct
legal standards.” Turpin v. Colvin, 750 F.3d 989, 992-93 (8th Cir. 2014). The Court cannot
reverse merely because substantial evidence also exists that would support a contrary outcome,

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or because the court would have decided the case differently. Id. Therefore, 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, 13.]
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 Clerk of Court shall substitute Nancy A.
Berryhill for Carolyn W. Colvin in the court record of this case.

Dated this 25th day of January, 2017.

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

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