Tucker v. Colvin

Filing 24

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 9/29/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MELISSA D. TUCK.ER,
Plaintiff,

v.
NANCY A. BERRYHILL,1
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No. 4:16-CV-00679 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 Melissa D. Tucker's ("Tucker") applications for
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.

I.

Background

On October 28, 2013, Tucker protectively filed an application for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., alleging disability
beginning September 18, 2013, due to connective tissue disease, lupus, memory problems,
Graves' disease, and fibromyalgia. After her application was denied at the initial administrative
level, Tucker requested a hearing before an administrative law judge ("ALJ"). A hearing was
held on January 21, 2015. The ALJ issued a written decision denying Tucker's application on

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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).

January 29, 2015.

On March 24, 2016, the Appeals Council of the Social Security

Administration denied Tucker's request for review. Thus, the decision of the ALJ stands as the
final decision of the Commissioner. See Sims v. Apfel, 560 U.S. 103, 107 (2000).
Tucker filed this appeal on May 16, 2016. (Doc. 1.) The Commissioner filed an Answer.
(Doc. 7.)

Thereafter, Tucker filed a Brief in Support of her Complaint (Doc. 17), the

Commissioner filed a Brief in Support of the Answer (Doc. 22), and Tucker filed a Reply Brief
(Doc. 23).

II.

Facts

The Court adopts Tucker's Statement of Facts (Doc. 17-1) as supplemented by the
Commissioner's Response to Tucker's Statement of Facts (Doc. 22-1). 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.

III.

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 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 Brantley v. Colvin, 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 her 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 vacancy exists for her,
or whether she would be hired if she applied for work." 42 U.S. C. § 13 82c(a)(3 )(B).

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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." Goffv. 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 her 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(±),

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416.920(a)(4)(iv), 416.920(±); 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) (citations

omitted).
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. Andrews v. Colvin,
791 F.3d 978, 983 (8th Cir. 2015); 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. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).

IV.

Decision of the ALJ

The ALJ determined that Tucker meets the insured status requirements of the Social
Security Act through December 31, 2018, and had not engaged in substantial gainful
employment since September 18, 2013, the alleged onset date of disability. (Tr. 15.) As relevant
to this appeal, the ALJ determined that Tucker had the severe impairments of fibromyalgia,
Graves' disease, connective tissue disease, obesity, a history of lap band removal surgery, and
possibly lupus. (Id.)
After considering the entire record, the ALJ determined that Tucker had the RFC to
perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) except that:
She cannot climb ladders, ropes, or scaffolds. In addition, she can perform no more than
occasional climbing on ramps and stairs; and occasional balancing, stooping, kneeling,
crouching and crawling. [Tucker] should avoid concentrated exposure to temperature
extremes, and she would be limited to frequent, but not repetitive, handling and fingering.
She would need an unskilled, simple, routine, repetitive job. Finally, she must have
access to a bathroom.
(Tr. 19.) The ALJ further found that Tucker is unable to perform any past relevant work but
determined that there are jobs that exist in significant numbers in the national economy that
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Tucker can perform, citing Social Security Medical-Vocational Rule 201.28, 20 C.F.R. Pt. 404,
Subpt. P, App. 2. (Tr. 21.) The ALJ therefore concluded that Tucker had not been under a
disability from September 18, 2013-the alleged onset date-through the date of her decision,
January 29, 2015. (Tr. 22.)

V.

Discussion

In her appeal of the Commissioner's decision, Tucker argues that the ALJ's decision
regarding Tucker's RFC was not supported by substantial evidence in the record. (Doc. 17 at 2.)
In addition, Tucker argues that she is entitled to remand because the Appeals Council did not
consider the new, relevant evidence she submitted. (Id at 8-11.)
A claimant's RFC is defined as the most an individual can do despite the combined
effects of all of her credible limitations.

Moore, 572 F.3d at 523 (citing 20 C.F.R. §

404.1545(a)(l)). 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 Voegtlin v. Colvin, No. 4:11CV1980
HEA, 2014 WL 651378, at *4 (E.D. Mo. Feb. 19, 2014) (citing McCoy, 648 F.3d at 605). It is
the claimant's burden, not the Commissioner's, to prove the claimant's RFC. See Harris v.
Barnhart, 356 F.3d 926, 930 (8th Cir. 2004); McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.

2000).
The ALJ determined that, while Tucker's "medically determinable impairments could
reasonably be expected to cause symptoms, her statements concerning the intensity, persistence
and limiting effects of such symptoms were not entirely credible." (Tr. 19.) Tucker asserts that
the ALJ' s RFC finding "fails to take into consideration [her] complaints of fatigue and failed to
evaluate those complaints in accordance with ... Polaski v. Heckler, 739 F.2d 1320, 1322 (8th

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Cir. 1994)." (Doc. 17 at 5.) While Tucker does not expressly frame this as a credibility issue,
the Court will consider the ALJ's credibility determination, as her RFC finding was based on the
diminished weight given to Tucker's subjective complaints about fatigue.

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) (same).
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, 739 F.2d at 1322.

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
credibility findings, so long as they are adequately explained and supported. Ellis v. Barnhart,
392 F.3d 988, 996 (8th Cir. 2005).
The ALJ agreed that "pain and fatigue likely prevent [Tucker] from performing tasks that
she was once able to perform" and that she "takes a variety of medications, whose side effects
add to [her] difficulties." (Tr. 19.) Nonetheless, the ALJ identified several reasons to discount
Tucker's subjective claim that her fatigue prevented her from working. She noted that while
"fatigue eventually sets in," Tucker is able to do some laundry and wash some dishes each day.

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(Tr. 20.) Likewise, Tucker's fatigue does not prevent her from going out to dinner or driving to
visit her parents on a somewhat regular basis. (Id.) The ALJ also observed that Tucker's
symptoms began nearly a year before her alleged onset date and noted that medical records
report that her symptoms were well-managed with medication and treatment. (Id.), see Moore
572 F.3d at 525 (citing Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997)) (concluding that
impairments that can be controlled through treatment or medication are not considered
disabling). To that end, the ALJ concluded that Tucker's prior "apparent ability to work with
[her] underlying impairments detracts from the credibility of her allegations." Likewise, several
of her symptoms were related to a lap band placed in 2006, which has since been removed. (Tr.
20.) In addition, the ALJ noted that none of Tucker's physicians had placed any functional
restrictions on Tucker's activity, and had even recommended exercise. (Tr. 19.)
Tucker responds that her daily activities "were very minimal and were not consistent with
an ability to perform work on a full time sustained basis." (Doc. 17 at 10.) She cites Forehand
v. Barnhart, 364 F.3d 984, 988 (8th Cir. 2004): "[I]n the context of a fibromyalgia case, that the
ability to engage in activities such as cooking, cleaning, and hobbies, does not constitute
substantial evidence of the ability to engage in substantial gainful activity." (quoting Brosnahan
v. Barnhart, 336 F.3d 671, 677 (8th Cir. 2003)). To be sure, Tucker's daily activity is not, in
itself, substantial evidence of employability. But when considered alongside the absence of
debilitating symptoms in her medical record, Tucker's ability to engage in the daily activities of
life contradicts her allegations of total impairment. (See, e.g., Tr. 375; Tr. 392-93; Tr. 481, 484,

487-99 (no significant complaints of pain, reduced range of motion, swelling); Tr. 490 (report of
fatigue as a side-effect of specific medication).)

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The Court finds the ALJ considered Tucker's subjective complaints on the basis of the
entire record and set out numerous inconsistencies that detracted from her credibility. Because
the ALJ' s determination is supported by good reasons and substantial evidence, the Court defers
to her determination. Cobb v. Colvin, No. 2:13CV0115 TCM, 2014 WL 6845850, at *14 (E.D.
Mo. Dec. 3, 2014) (internal citations omitted); see also Polaski, 739 F.2d at 1322.
After discrediting Tucker's allegations regarding her total impairment, the ALJ crafted an
RFC finding that incorporated the medical evidence and opinion testimony. She gave "some
weight to the assessment completed by the state DDS consultant," but noted that more "recent
evidence ... painted a more complete portrait of [Tucker's] abilities and limitations." (Tr. 21.)
The ALJ examined Tucker's medical records prepared by her treating physicians and determined
that they did not support Tucker's claim that she was unable to work. (See, e.g., Tr. 375 (on the
day after her alleged onset date, she reported no pain in her extremities); Tr. 392-93 (less than a
month later, her rheumatologist reported no joint tenderness and normal range of motion,
strength, and muscle tone); Tr. 481, 484, 487-99, 490-91 (no significant changes reported at
follow-up exams).) Still, the ALJ's RFC finding precludes Tucker's past work, limits her to
sedentary work with additional restrictions on physical activity, and requires access to a
bathroom.
Tucker argues that the RFC ignores the fact that she struggles with absenteeism because
she cannot predict if or when she might have to miss work. (Doc. 17 at 7-8.) She cites the
vocational expert's testimony that more than one absence a month makes employment
impossible and notes that this was the very reason she could not continue her last job. (Id.)
Tucker also points to answers to interrogatories received from her rheumatologist, which she
characterizes as new material evidence that excessive absenteeism would not be uncommon for

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people with Tucker's symptoms. (Id.; Doc. 17-2.) She further argues that the Appeals Council's
failure to consider the interrogatories is an independent basis for remand, citing Lamp v. Astrue,
531 F.3d 629, 633 (8th Cir. 2008). (Doc. 17 at 8-10.)
It is true that the ALJ's decision does not expressly discuss Tucker's absenteeism.
However, the ALJ's discussion of Tucker's credibility and her finding that Tucker's RFC allows
for future employment clearly indicate that Tucker failed to persuade the ALJ that attendance
would be an issue. Moreover, Tucker's self-serving representation that she would exceed the
one-day-per-month limit outlined by the vocational expert is not supported by her medical
records, which fail to record the level of fatigue and acute illness Tucker describes. For these
reasons, the Court finds the ALJ's decision not to include absenteeism in the RFC is supported
by substantial evidence in the record. See Blackburn v. Berryhill, No. 16-3140-CV-S-ODS, 2017
WL 1968320, at *3 (W.D. Mo. May 12, 2017) (plaintiffs representation that she would miss 1.5
days of work per month was not supported by objective medical evidence).
Moreover, Tucker's proffered interrogatories do not compel a contrary finding-they
merely stand for the general proposition that "excessive absenteeism, even in a sedentary job,
[would] be a common problem for someone who has symptoms of the disorders" diagnosed in
Tucker's case.

(Doc. 17-2.) That is not evidence that Tucker, herself, suffered with that

problem, especially considering the lack of such complaints in the medical records and evidence.
Finally, Tucker's reliance on Lamp is misplaced. "When the Appeals Council denies
review of an ALJ's decision after reviewing new evidence," federal courts "do not evaluate the
Appeals Council's decision to deny review, but rather ... determine whether the record as a
whole, including the new evidence, supports the ALJ's determination." McDade v. Astrue, 720
F.3d 994, 1000 (8th Cir. 2013) (quoting Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir.

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2000)). The issue for the Court is whether the record as whole, including the new evidence,
supports the ALJ's determination. The supplemental interrogatories provided no new evidence
of significance. They were not likely to change the Commissioner's decision, and therefore, do
not justify remand. As discussed above, the ALJ' s determination is supported by the recordeven considering the interrogatories.

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 29th day of September, 201 7.

~.ROSS

ED STATES DISTRICT JUDGE

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