Wayne v. Colvin

Filing 20

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. Signed by District Judge Henry Edward Autrey on 11/13/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RYAN J. WAYNE, Sr. ,
Plaintiff,
v.
NANCY A. BERRYHILL 1,
Acting Commissioner of
Social Security Administration,
Defendant.

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No. 4:16CV0602 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 and supplemental security income
under Titles II and XVI of the Social Security Act (Act), 42 U.S.C. §§ 401-434,
1381-1385. For the reasons set forth below, the Court will affirm the
Commissioner's denial of Plaintiff's applications.
Facts and Background
On March 27, 2014, Administrative Law Judge Mary Ann Poulose
conducted a hearing. Plaintiff appeared in person and the Vocational Expert,
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.

Leanne Bloom, appeared as well. The ALJ presided over the hearing from
Chicago, Illinois.
Plaintiff resided alone at the time of the hearing. Plaintiff was born on June
20, 1982. He was 32 years old at the time of the hearing. Plaintiff completed high
school.
Plaintiff has prior work experience as a bartender and front of house
manager. He also has experience as a waiter. His first job was as busser in the
food and beverage industry. All of his work experience involved lifting anywhere
from 20 to 50 pounds from time to time.
On examination by counsel, Plaintiff testified that he does not require
assistance with his personal needs on a day today basis. He testified typically he is
at home. He keeps his leg propped up or iced up. When he does chores around his
home he does it in intervals because it hurts to stand for long periods. He also
stated that his grandmother comes by and helps with sweeping, mopping, and
things like mirrors and bathtubs, as it is difficult for him to kneel.
Plaintiff testified he cannot stand or walk for long periods. Walking for
longer than 25 minutes causes pain on both sides of his hip and requires him to sit
down for recovery from the pain. He also noted pain in his leg which is helped by
elevating his leg on a couple of pillows.

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There was testimony from Leanne Bloom, the Vocational Expert. Ms.
Bloom, 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 there were jobs at the sedentary work level available for
Plaintiff.
The ALJ determined that Plaintiff was not entitled to a finding of disabled.
The Appeals Council denied Plaintiff’s request for review on February 23, 2016.
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 issues in this case are whether the ALJ properly evaluated Plaintiff’s
subjective allegations and whether she properly determined Plaintiff’s residual
functional capacity.
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
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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).
The Court must consider evidence that both supports and detracts from the
Commissioner’s decision but cannot reverse the decision because substantial
evidence also exists in the record that would have supported a contrary outcome, or
because it would have decided the case differently. See Andrews v. Colvin, 791
F.3d 923, 928 (8th Cir. 2015). If the Court finds that the evidence supports two
inconsistent positions and one of those positions represents the Commissioner’s
findings, the Court must affirm the Commissioner’s decision. Wright v. Colvin,
789 F.3d 847, 852 (8th Cir. 2015). The Eighth Circuit has stated that “[w]e defer
heavily to the findings and conclusions of the Social Security Administration.” Id.
(quoting Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010)).

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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)
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(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).
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
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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;

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(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).
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
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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 this case. The
ALJ determined at Step One that Plaintiff had not engaged in substantial gainful
employment from the onset date of November 24, 2012. The ALJ found at Step
Two that Plaintiff had the severe impairment of status post multiple fractures.
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, 416.1526, 416.920(d), 416.925 and 416.926).
As required, prior to Step Four, the ALJ determined that Plaintiff had the
residual functional capacity to perform a full range of sedentary work. The ALJ
followed the two step process in first determining whether there was an underlying
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medically determinable physical or mental impairment that could be expected to
produce the Plaintiff’s pain or other symptoms. Secondly, if there was such a
showing, it was incumbent upon the ALJ to evaluate the intensity, persistence, and
limiting effects of pain or other symptoms to determine the extent which they limit
functioning. If not substantiated, the ALJ needs to make a finding on the
credibility of statements considering the whole record.
Here, the ALJ determined that Plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms, but that
Plaintiff’s statements of intensity, persistence and limiting effects of the symptoms
are not entirely credible in consideration of the entire record.
At Step Four it was the finding of the ALJ that Plaintiff is not able to
perform any past relevant work.
In 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
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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)).
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
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I. Did the ALJ Properly Evaluate the Subjective Allegations of Plaintiff?
Plaintiff asserts that the ALJ erred in evaluating Plaintiff’s subjective
complaints and that the evaluation was not supported by substantial evidence
because it lacks sufficient detail for the reasons the ALJ considered in discounting
Plaintiff’s testimony. Plaintiff also argues the ALJ should have found additional
and more significant limitations with regard to Plaintiff’s physical abilities,
including sitting, standing, and walking.
Plaintiff asserts his testimony, allegations, and medical evidence regarding
injuries post his vehicular accident. The claimant bears the burden of proving
disability and providing medical evidence regarding the existence and severity of
an impairment. See Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013). The
evidence in the record does not support a greater or disabling degree of limitation
as defined in the Social Security Act. Plaintiff has failed in his burden. This failure
is supported by substantial evidence to the contrary as considered and referenced
by the ALJ.
The ALJ precisely interlocked her credibility analysis with an entire
evaluation of the record, medical evidence and RFC determination. See Pearsall v.
Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) (“Before determining a
claimant’s RFC, the ALJ first must evaluate the claimant’s credibility.”); see also
Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009) (“Since the purpose of the
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credibility evaluation is to help the ALJ assess a claimant’s RFC, the ALJ’s
credibility and RFC determinations are inherently intertwined.”). The issue is not
whether the claimant actually experiences the subjective complaints alleged, but
whether those symptoms are credible to the extent that they prevent him from
performing substantial gainful activity. See Baker v. Apfel, 159 F.3d 1140, 1145
(8th Cir. 1998); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998); Woolf v.
Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
Here, the ALJ’s decision properly explains the rationale and does not merely
rely on boilerplate language as Plaintiff suggests. See Norris v. Comm'r of Soc.
Sec., 461 F. App'x 433, 441 (6th Cir. 2012) (“In so doing, the ALJ's RFC
determination was premised on more than mere boilerplate assertions and
demonstrated meaningful engagement with the facts presented in the record.”);
Wiese v. Astrue, 552 F.3d 728, 733-34 (8th Cir. 2009) (“Indeed, the ALJ wrote
nearly four full pages of analysis regarding the consistency between Wiese's selfreports contained in the record, her treating physicians' notes and assessments, the
medical evidence and the hearing testimony. In doing so, the ALJ provided a
thorough analysis of the inconsistencies he noted in the record, and those
inconsistencies are supported by the record.”). The ALJ considered numerous
factors including the testimony of Plaintiff; lack of objective medical findings and
observations supporting Plaintiff’s allegations of ongoing disabling limitations
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since he suffered multiple fractures in an automobile accident and subsequently
recovered; the conservative and routine nature of Plaintiff’s medical treatment that
was effective in alleviating Plaintiff’s pain and culminated in Plaintiff’s doctors
releasing him back to work and unrestricted activity. The record does not support
the conclusions of the Plaintiff and the objective evidence does not support the
subjective claims of Plaintiff. “Subjective complaints may be discounted if the
evidence as a whole is inconsistent with the claimant’s testimony.” Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
A review of the record demonstrates the ALJ clearly considered the daily
activities and abilities which factored into a finding that Plaintiff was limited to
only a sedentary range of work. The claimant bears the burden of proving
disability and providing medical evidence regarding the existence and severity of
an impairment. See Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013). The
substantial evidence of the record defeats Plaintiff’s assertions and supports the
evaluation by the ALJ.
2. Did the ALJ Properly Determine Plaintiff Could Perform Other Work?
Where the ALJ determines a claimant is unable to perform any past relevant
work the burden shifts and it is then the obligation of the ALJ to establish there is
other work existing in significant numbers in the national economy that claimant

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could perform based on his age, education, work experience, and RFC. See , 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
Here, the ALJ utilized the medical-vocational guidelines. The medical
vocational guidelines reflect the analysis of the various vocational factors such as
age, education, and work experience, in combination with residual functional
capacity in evaluating the individual’s ability to engage in substantial gainful
activity in other than his or her vocationally relevant past work. The record reflects
the ALJ delineated what jobs and numbers of jobs in the economy were available
to Plaintiff considering his age, education, work background, and RFC for a full
range of sedentary work.
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

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Order is entered this same date.
Dated this 13th day of November, 2017.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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