Sexton v. Colvin
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 3/23/17. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL1,
Acting Commissioner of
Social Security Administration,
No. 4:16CV197 HEA
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 income 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 September 30, 2014, Administrative Law Judge Carol L. Boorady
conducted a video hearing. Plaintiff and the Vocational Expert both appeared.
Plaintiff appeared in Hannibal, Missouri. The Administrative Law Judge presided
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.
over the hearing from Columbia, Missouri. Plaintiff was born on August 1, 1964.
She was 50years old at the time of the hearing. Plaintiff completed high school
and has an Associate’s Degree as a medical secretary.
Plaintiff testified that she experiences problems from her diabetes. Her
blood sugar levels are extremely uncontrollable. She becomes very agitated and
extremely hot, but the levels do not get to the very high levels very often, maybe
once or twice per week. When her blood sugar levels are low, her hands start to
shake, and she has had two seizures in the last month. She testified that she was
going to see an endocrinologist in October and that she would be getting an insulin
pump which she hoped would regulate her blood sugar levels a bit better.
Plaintiff testified, on examination by the ALJ, that she suffered from
neuropathy, which starts in her feet and goes up to her hips. Plaintiff has bone
spurs and arthritis in her feet, and she has pain in her lower back. Plaintiff testified
that she has had two back surgeries, and another is necessary. She sits for 10-15
minutes to alleviate pain, but sitting also aggravates her pain. She takes Norco or
Vicodin for pain.
Plaintiff testified that when she gets up in the morning she makes breakfast
for herself. She packs her husband’s lunchbox, puts her 15 year old daughter on the
bus and tries to clean up a bit. Afterwards, she sometimes sits at her computer to
work for a little bit, but she has to get up and down. She tries to do some
cleaning; laundry is probably the easiest thing for her to do because it doesn’t
weigh much. She testified that she goes grocery shopping and walks as she leans
on the shopping cart. She attends her daughter’s softball games and has trouble if
she has to sit in the bleachers. Plaintiff was formerly employed as a medical
records clerk and a cashier, but she testified that she could no longer do those jobs
because of all the standing they required.
The ALJ also secured testimony of Denise Anne Weaver, a Vocational
Expert. Ms. Weaver testified and classified the past work experience of the
Plaintiff in relation to the Dictionary of Occupational Titles. Based upon all of
those considerations and the stated hypotheticals of the ALJ, including stated
limitations, the Vocational Expert concluded Plaintiff could perform her previous
job as a medical records clerk and that there were jobs available for Plaintiff as a
document preparer, microfilming, dowel inspector, and a lens inserter.
The ALJ determined that Plaintiff was not entitled to a finding of disabled.
The Appeals Council denied Plaintiff’s request for review on December 15, 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 the ALJ properly considered opinion
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
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
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
significant number of jobs within the national economy. Id.; Brock v. Astrue, 674
F.3d 1062, 1064 (8th Cir.2012).
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
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
(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).
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).
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 May 1, 2011. The ALJ found at Step Two that
Plaintiff had the severe impairments of degenerative disc disease with a herniated
disc and stenosis at C5-C6 and C6-C7 with a history of fusion surgery,
degenerative disc disease of the lumbar spine, and diabetes with diabetic
neuropathy. (20 CFR 404.1520©).
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 light work as defined in 20 CFR
404.1567(b) in that she can lift and carry 20 pounds occasionally and 10 pounds
frequently. Petitioner can stand and walk for 6 hours of an 8-hour day and sit for 6
hours of an 8-hour day. She can occasionally climb ramps and stairs, but never
climb ladders, ropes, or scaffolds. She can rarely crouch. Plaintiff can do no more
than occasional twisting, stooping and crawling. She can do no more than
occasional overhead reaching with both upper extremities. Claimant must avoid
concentrated exposure to vibration and work hazards, such as working around
unprotected heights or dangerous moving machinery. She requires a sit/stand
option allowing a change in position every thirty to forty five minutes for a few
At Step Four it was the finding of the ALJ that Plaintiff was capable of
performing her past relevant work as a cafeteria attendant.
Step Five the ALJ concluded that Plaintiff was not under a disability.
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
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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
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).
Plaintiff asserts the ALJ did not properly adopt the restrictions identified by
Plaintiff’s treating doctors in the medical evaluations they completed. A review of
the record, and the finding of the ALJ relating to the record, finds this assertion
unsupported because the ALJ concluded that these evaluations were not supported
by the objective medical evidence and Plaintiff’s daily activities.
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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 an x-ray of
Plaintiff’s lumbar spine in December 2012, showed degenerative joint disease of
the lumbar spine with preserved disc space, but the record contained no MRI scans
of Plaintiff’s lumbar spine or any other objective diagnostic evidence that would
support the severity of pain asserted by Plaintiff.
Was There Substantial Evidence to Support the ALJ Evaluation of
Medical Opinion Evidence?
In order to formulate the RFC the ALJ considered and discussed the
opinions of Plaintiff’s primary care provider,
According to CFR §404.1527(c)(2)-(5), if controlling weight is not given to
a treating physician’s opinion, the ALJ considers the following factors: the length
of the treatment relationship and frequency of examinations; the nature and extent
of the treatment relationship; the supportability by medial signs and laboratory
findings; the consistency of the opinion with the record as a whole; and the
doctor’s specialization. In this regard the ALJ found that the doctors’ opinions
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were not supported by the record as a whole. 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.”). Dr. Graven’s opinion was
based on Plaintiff’s neck impairment, however, his treatment notes after Plaintiff’s
fusion do not indicate the symptoms tenderness, muscle spasms, sensory loss,
abnormal posture, and reduced grip strength that he included in his opinion.
Plaintiff herself reported improvement following her fusion. She reported
on February 2, 2012 that she was doing well with no arm pain. The following
month, she reported only occasional twinges in her arms and hands, and denied
having much neck pain. She reported only occasional neck pain and right arm pain
in August, 2012.
Dr. Stowell also based her report on Plaintiff’s neck problem. There are no
documentation notes after the fusion which demonstrate abnormal clinical
findings. Dr. Stowell consistently noted that Plaintiff was alert at her
appointments, which undermines Dr. Stowell’s conclusion that Plaintiff’s neck
pain would constantly interfere with her ability to concentrate. Dr. Stowell’s
examination of Plaintiff five days before her opinion of September 2014 was
The ALJ also found that the doctor’s opinions were not consistent with
Plaintiff’s documented activities of daily living (Tr. 23). The ALJ may discount
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opinions of physical limitations greater than Plaintiff actually exhibited in her daily
life. See Turpin v. Colvin, 750 F.3d 989, 994 (8th Cir. 2014) (ALJ properly
discounted opinion where it conflicted with the medical records, the testimony of a
medical expert, and Plaintiff’s account of her daily activities).
The ALJ, without question, considered all the evidence in articulating 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, including Plaintiff’s testimony of what activities she was capable of
performing on a daily basis.
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).
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
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Order is entered this same date.
Dated this 23rd day of March, 2017.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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