Ford 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. [Docs. 1, 14, 23.] IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commissioner affirm ing 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. 23 22 12 1 Signed by Magistrate Judge Nannette A. Baker on 2/22/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WILLIAM J. FORD,
Plaintiff,
v.
NANCY A. BERRYHILL 1,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 4:16-CV-103 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 William J. Ford’s application for disability insurance
benefits under the Social Security Act, 42 U.S.C. § 423 et seq. Ford alleged disability due to
lyme disease, vision problems, exposure to Agent Orange, and heart problems. (Tr. 208.) 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. 9.] 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 February 16, 2017. For the reasons set forth below,
the Court will affirm the Commissioner’s final decision.

1

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
Ford asserts two issues for review. First, Ford states that the administrative law judge’s

(ALJ) finding of no severe mental impairment is not supported by substantial evidence. Second,
Ford asserts that the ALJ’s residual functional capacity (RFC) determination is arbitrary,
unexplained, and unsupported by the record.

The Commissioner contends that the ALJ’s

decision is supported by substantial evidence in the record 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. § 423(d)(1)(A).
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).

2

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
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. 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
physicians;
(4) The subjective complaints of pain and description of the
claimant’s physical activity and impairment;
3

(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
Ford asserts that his onset date of disability is March 17, 2008. His last date of eligibility

for disability insurance benefits was September 30, 2013. Because Ford’s last date insured is
September 30, 2013, Ford has the burden to show that he had a disabling impairment before his
insured status expired. See Barnett v. Shalala, 996 F.2d 1221 (8th Cir. 1993) (citing Basinger v.
Heckler, 725 F.2d 1166, 1168 (8th Cir. 1984)). “When an individual is no longer insured for
Title II disability purposes, [the Court] will only consider [his] medical condition as of the date
[he] was last insured.” Davidson v. Astrue, 501 F.3d 987, 989 (8th Cir. 2007) “Evidence from
outside the insured period can be used in helping to elucidate a medical condition during the time
for which benefits may be rewarded.” Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). But,
the evidence from outside the period cannot serve as the only support for the disability claim. Id.
A.

Severe Impairments

Ford identified several problems with the ALJ’s assessment at step two regarding his
severe impairments. The ALJ found that Ford had the severe impairments of heart disease,
degenerative disc disease, and left shoulder and elbow degenerative disc disease. (Tr. 22.) Ford
contends that the ALJ failed to consider evidence of anxiety and depression prior to the date last
insured and failed to find that these were severe impairments. Ford also contends that the ALJ

4

disregarded evidence of his post-traumatic stress disorder (PTSD) and personality disorder
before the date last insured, merely because the evidence was generated after the date last
insured.
After the ALJ has determined that a claimant is not engaged in substantial gainful
activity, the ALJ then determines whether the claimant has a severe impairment or combination
of impairments that has or is expected to last twelve months or will result in death. 20 C.F.R.
§§ 404.1509, 404.1520(a)(4)(i)-(ii). A physical or mental impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, not only by the
claimant’s statement of symptoms.

20 C.F.R. § 404.1508.

To be considered severe, an

impairment must significantly limit a claimant’s ability to do basic work activities. See 20 C.F.R
§ 404.1520(c). “Step two [of the five-step] evaluation states that a claimant is not disabled if his
impairments are not severe.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (citing Simmons
v. Massanari, 264 F.3d 751, 754 (8th Cir. 2001)). “An impairment is not severe if it amounts
only to a slight abnormality that would not significantly limit the claimant’s physical or mental
ability to do basic work activities.” Id. at 707. “If the impairment would have no more than a
minimal effect on the claimant’s ability to work, then it does not satisfy the requirement of step
two.” Id. (citing Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)). “It is the claimant’s
burden to establish that his impairment or combination of impairments are severe. Kirby, 500
F.3d at 707 (citing Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000)). “Severity is not an
onerous requirement for the claimant to meet, . . . but it is also not a toothless standard.” Kirby,
500 F.3d at 708.
Ford’s mental health treatment in the record is detailed as follows: Ford’s treating
primary care physician, Dr. Christopher Bowe first diagnosed Ford with anxiety in 2001 and

5

depression in 2005. At various times during his treatment, Dr. Bowe prescribed Paxil, Xanax,
and Alprazolam for Ford’s anxiety and depression. Dr. Bowe did not record the results of any
mental status examinations if given, but he did record Ford’s complaints of feeling “stressed,”
“anxious,” and “depressed.” (Tr. 506-508, 509-11, 516-17, 523-26, 527-30, 536-39, 542-48,
550-559, 711-14, 724-29, 732-35, 740, 760-61, 769, 772, 774, 1526-28.)
On February 19, 2011, Ford visited clinical psychologist, Dr. Perris Monrow. (Tr. 17061707.) Ford stated that he had had previous counseling but it was not helpful. (Tr. 1707.) Ford
stated that he had anxiety, stress, worry, fear, depression, bipolar, irritability, anger, violence,
rage and eating, sleeping, marital, relational, legal/financial, and sexual problems often. (Tr.
1707.) Ford also reported having panic attacks and guilt sometimes. (Tr. 1707.)
On May 19, 2014, Dr. Shannon Davis completed a Disability Benefits Questionnaire and
Compensation and Pension Examination (C&P Exam) regarding Ford to determine eligibility for
Veteran’s Administration benefits. (Tr. 1650-63.) In her evaluation, Dr. Davis found that Ford’s
symptoms did not meet the diagnostic criteria for PTSD. (Tr. 1651.) She also found that he had
an occupational or social impairment due to mild or transient symptoms which decrease work
efficiency and ability to perform occupational tasks only during periods of significant stress; or
his symptoms are controlled by medication. (Tr. 1652.) Dr. Davis opined that while Ford
identified various military stressors during his service, he did not identify sufficient symptoms of
the remaining criteria to support a PTSD diagnosis. (Tr. 1662.) Dr. Davis did opine that Ford
had narcissistic personality disorder. (Tr. 1651, 1662.)
On June 30, 2014, Dr. Mohinder Partap completed Ford’s request for a second C&P
Exam regarding whether Ford suffered from PTSD. (Tr. 625-27.) Dr. Partap noted that Ford
reported visiting Dr. Partap once in 2008 for “multiple vague somatic complaints and loss of

6

memory after losing his job.” (Tr. 625). Dr. Partap noted that Ford never returned with his wife
to verify his history of bipolar disorder and anemia. (Tr. 625.) Ford’s mental status examination
was within normal limits. (Tr. 625) Dr. Ford diagnosed Ford with personality disorder, not
otherwise specified. (Tr. 626.)
On March 13, 2015, Dr. Monrow evaluated Ford for PTSD in a Disability Benefits
Questionnaire. (Tr. 1644-49.) Dr. Monrow wrote on the form that Ford had previously been
diagnosed with PTSD 2. Dr. Monrow opined that Ford had occupational and social impairment
with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or
mood. (Tr. 1645.) Dr. Monrow found that Ford met all of the required criteria for a PTSD
diagnosis. (Tr. 1647-48.) Dr. Monrow found that Ford had recurrent distressing dreams and
recollections, difficulty concentrating, panic attacks, flattened affect, impaired judgment and
abstract thinking, memory loss, chronic sleep impairment, impaired impulse control, persistent
delusions or hallucinations, persistent danger of hurting self or others, neglect of personal
appearance and hygiene, and disorientation to time and place among many other symptoms. (Tr.
1647-48).
Finally, on June 15, 2015, Dr. Monrow completed a psychological opinion and diagnosed
Ford with PTSD, anxiety disorder, and mood disorder. (Tr. 2236.) Dr. Monrow opined that
Ford’s conditions have placed “a heavy mental impairment” on him and he is “totally incapable
to maintain any employment at this time, or very likely any time in the future.” (Tr. 2236.) Dr.
Monrow further opined that “Ford suffers greatly from stress anxiety, panic attacks, depression,
insomnia, night sweats, loss of sleep, is mentally tired and fatigued.” (Tr. 2236.) Dr. Monrow
then stated that Ford would likely need to maintain some regimen of psychotropic medications as
well as continue regularly scheduled psychotherapy well into the future.
2

The administrative record does not indicate a previous diagnosis of PTSD.

7

In his opinion, the ALJ found that Ford’s PTSD and personality disorder were not
medically determinable impairments. (Tr. 23.) The ALJ stated the following:
In February 2011, the claimant sought counseling for PTSD,
but was not diagnosed with PTSD. The claimant was
assessed with a personality disorder in June 2014, but was
never diagnosed with a personality disorder prior to his date
last insured. The claimant was diagnosed with PTSD in
March 2015, after his date last insured, but had not been
diagnosed with PTSD, or had any consistent treatment for
PTSD up to that point. Therefore, the claimant’s PTSD and
personality disorder are not medically determinable
impairments.
(Tr. 23.) (internal citations omitted).
Ford contends that the ALJ erred by failing to consider evidence of his anxiety and
depression prior to the date last insured and in failing to find that he had a severe mental
impairment. The Court finds that the ALJ did not err in evaluating Ford’s mental health.
Although the ALJ did not specifically mention Ford’s diagnoses of anxiety and depression, the
ALJ did cite to evidence that mentions those diagnoses. Therefore, it is assumed that the ALJ
considered those diagnoses. See e.g. Wright v. Astrue, 489 Fed. Appx 147, 149 (8th Cir. 2012)
(citing Bradley v. Astrue, 528 F.3d 1113, 1115-1116 n.3 (8th Cir. 2008) (GAF scores)).
Next, the evidence regarding Ford’s diagnoses of anxiety and depression do not support a
finding of a severe impairment. During the time of Ford’s treatment with Dr. Bowe, the record
indicates that these conditions were stable and well-controlled by medication. There is no
evidence that Ford’s anxiety and depression significantly limited his physical or mental ability to
do basic work activities. See 20 C.F.R § 404.1520(c). Ford did not carry his burden to establish
that his anxiety and depression were severe impairments.
Then, the ALJ did not err in finding that Ford had not met his burden to demonstrate that
his PTSD and personality disorder were severe impairments before his date last insured. Before
8

the expiration of the date last insured, there is no medical evidence in the record to support that
Ford suffered from PTSD or a personality disorder. Ford produced evidence of one mental
health appointment during the time period (Tr. 1707). The other objective medical records do
not indicate any symptoms or objective medical findings to support a PTSD or personality
disorder diagnosis during the relevant time period. As stated earlier, evidence from outside the
period cannot serve as the only support for the disability claim. Cox, 471 F.3d at 907. In this
case, the only evidence supporting Ford’s claim for PTSD and personality disorder are past the
date last insured.
B.

Memory Testing

Next, Ford asserts that the ALJ failed to develop the record and should have obtained
evidence of memory testing and elicited testimony from a medical expert regarding the onset
date and functional limitations of Ford’s mental health conditions. 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.

The

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

9

disabled.” McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011) (citing Conley v. Bowen, 781
F.2d 143, 146 (8th Cir. 1986)). 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).
In this case, Ford mentioned to his doctors that he had memory problems, trouble
concentrating, and confusion in 2008 and 2009. (Tr. 553, 642, 724, 726.) On at least one
occasion, Dr. Bowe notes that two neurologists had recommended memory testing. (Tr. 558.)
The parties agree that there is no evidence of memory testing in the record. While Ford contends
that the ALJ should have ordered additional testing on this basis, there is no evidence that Ford
experienced ongoing memory problems. None of his doctors diagnosed him with a memory
impairment. Therefore, the Court finds that the ALJ did not err in failing to order additional
memory testing.
C.

RFC Determination

In his second issue for review, Ford contends that the ALJ’s RFC determination is not
supported by substantial evidence in the record as a whole, because the ALJ’s finding is
arbitrary, unexplained, and unsupported by the administrative record.
The ALJ found that Ford had the RFC to perform medium work 3 with the following
limitations: sit, stand, or walk for six hours out of an eight hour day; a sit/stand option where he
sits for five minutes at a time or stands for 30 minutes at a time before changing positions
without any time off task or loss of productivity; walk up to 300 yards without an assistive
device and without rest; frequently reach overhead with left arm, climb ramps and stairs, balance
and stoop; never climb ladders, ropes, or scaffolds, crouch, or crawl; can occasionally kneel and

3

“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. § 404.1567(c).

10

bend; avoid concentrated exposure to chemicals, fumes, dust, dander, and mold; must avoid all
extreme temperatures; can perform simple repetitive tasks with allowance for being three percent
off task during the workday with a three percent loss of productivity. (Tr. 24-25.)
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. § 404.1545(a).
The RFC is a function-by-function assessment of an individual’s ability to do work related
activities on a regular and continuing basis. 4 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 v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). 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). “[T]he ALJ is not qualified
to give a medical opinion but may rely on medical evidence in the record.” Wilcockson 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. § 404.1527(b); see also Heino v. Astrue, 578 F.3d 873, 879
(8th Cir. 2009).
Based on a careful review of the evidence in the record as a whole, the Court finds that
the ALJ’s RFC determination is supported by substantial evidence in the record as a whole. A
review of the record as a whole demonstrates that Ford 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,

4

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.

11

not the Social Security Commissioner’s burden, to prove the claimant’s RFC). The Court may
only “disturb” the ALJ’s decision if it is outside the available zone of choice. Papesh v. Colvin,
786 F.3d 1126, 1131 (8th Cir. 2015). “An ALJ’s decision is not outside the zone of choice
simply because [the Court] might have reached a different conclusion had [it] been the initial fact
finder.” Id. Based on the foregoing, the Court finds that the ALJ’s RFC determination finds
substantial support in the record.
IV.

Conclusion
For reasons set forth above, the Court affirms the Commissioner’s final decision.
Accordingly,
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief

in Support of Complaint is DENIED. [Docs. 1, 14, 23.]
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 22nd day of February, 2017.

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

12