Luking v. Colvin

Filing 27

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiff's Complaint is DISMISSED with prejudice. A separate Judgment will accompany this Order. Signed by District Judge John A. Ross on 9/25/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KRISTINA LUKING,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 4:16-CV-01524 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 Kristina Luking’s (“Luking”) application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. and
supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §
1381, et seq.
I.

Background

Luking applied for supplemental security income benefits on March 18, 2013 and
disability insurance benefits on April 18, 2013, alleging disability as of July 27, 2012 due to
depression, anxiety, a heart defect, respiratory issues and obesity. After her application was
denied at the initial administrative level, she requested a hearing before an administrative law
judge (“ALJ”). Following a hearing on February 19, 2015, the ALJ issued a written decision on
June 15, 2015, denying her applications. Luking’s request for review by the Appeals Council
was denied. Thus, the decision of the ALJ stands as the final decision of the Commissioner. See
Sims v. Apfel, 530 U.S. 103, 107 (2000).

II.

Facts

The Court adopts Luking’s Statement of Facts (Doc. No. 23 at 2-10), which have been
admitted by the Commissioner (Doc. No. 26-1). 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 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. Johnson v. Astrue, 628 F.3d 991, 992
(8th Cir. 2009). “Substantial evidence is that which a reasonable mind might accept as adequate
to support a conclusion.” Id. (citations omitted). The court may not reverse 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).
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.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
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

2

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). 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 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.” Goff v. 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 severity of mental

disorders is determined by rating the claimant’s degree of limitations in four areas of
functioning: activities of daily living; social functioning; concentration, persistence, or pace; and
episodes of decompensation (the “paragraph B criteria”). § 404.1520a(c)(3). “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).

3

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 [his] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20
C.F.R. § 404.1545(a)(1)). 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 v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011). If the
claimant can still perform past relevant work, he 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 he 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 he 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).

4

IV.

Decision of the ALJ

The ALJ found Luking had the severe impairments of asthma, bipolar disorder,
depression, obesity and hearing loss, but that no impairment or combination of impairments met
or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. In making this finding, the ALJ found Luking’s mental impairments did not
satisfy the “paragraph B” criteria because she had only moderate restrictions in activities of daily
living; mild difficulties in social functioning; no difficulties with regard to concentration,
persistence, or pace; and no episodes of decompensation (Tr. 18-19). The ALJ also found the
evidence of record failed to establish the presence of the “paragraph C” criteria 1 (Tr. 19).
After considering the entire record, the ALJ determined that Luking had the RFC to
perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following
limitations: lift or carry twenty pounds occasionally, ten pounds frequently; sit, stand or walk for
six hours out of an eight-hour workday; avoid concentrated exposure to dust, fumes, gases, or
other pulmonary irritants, extreme heat or vibration, and loud environment without hearing
protection; occasional contact with the general public, co-workers and supervisors.
The ALJ found Luking unable to perform her past relevant work as a cashier, personal
care aide, and fast food worker, but that there were jobs that exist in significant numbers in the
national economy that she can perform, such as bench assembler, prep production worker,

1

A claimant can satisfy the paragraph C criteria by showing: (1) extended episodes of decompensation;
(2) a “residual disease process that has resulted in such marginal adjustment that even a minimal increase
in mental demands or change in the environment would be predicted to cause the individual to
decompensate,” or (3) a “[c]urrent history of 1 or more years’ inability to function outside a highly
supportive living arrangement.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C). The paragraph C criteria
are assessed only if the paragraph B criteria are not satisfied. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.00(A); see also 20 C.F.R. 404.1520a (detailing evaluation of mental impairments).
5

maid/laundry worker, and hand packager. Thus, the ALJ found Luking was not disabled as
defined by the Act.
V.

Discussion

A claimant’s RFC is defined as the most an individual can do despite the combined
effects of all of his or her credible limitations. Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
2009) (citing 20 C.F.R. § 404.1545(a)(1)). 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. McCoy
v. Astrue, 648 F.3d 605 (8th Cir. 2011). 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 only issue raised by Luking in her appeal of the
Commissioner’s decision is whether the ALJ failed to properly consider her credibility in
determining her RFC (Doc. No. 23 at 11-13). Notably, Luking does not challenge the ALJ’s
consideration of the medical treatment records or evaluation of the medical opinion evidence.
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
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The claimant’s relevant work history and the
absence of objective medical evidence to support the complaints may also be considered, and 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. Chater, 62 F.3d 220, 223

6

(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).
Here, the ALJ identified a number of reasons for finding Luking’s statements concerning
the intensity, persistence and limiting effects of her symptoms not entirely credible. First, there
was no correlation to a significant medical event on the alleged onset date other than her selfreport that she was having increasing difficulty with breathing and back pain (Tr. 21, 45). There
was also evidence that Luking had stopped working for reasons unrelated to her alleged
disabilities. She testified she “was let go because of circumstances with babysitting or not having
a babysitter for [her] daughter for the summer.” (Tr. 40, 456). The ALJ properly considered the
fact that Luking stopped working for reasons other than her alleged disability when assessing her
credibility. See Eichelberger v. Barnhart, 390 F. 3d 584, 590 (8th Cir. 2004) (ALJ properly
discounted claimant’s complaints noting that she had ceased employment at the same time she
became the primary caregiver to her grandchild); Kelley v. Barnhart, 372 F.3d 958, 961 (8th Cir.
2004) (claimant’s leaving work for reasons unrelated to medical condition detracted from
credibility); Depover v. Barnhart, 349 F.3d 563, 566 (8th Cir. 2003) (claimant left his job
because the job ended; therefore, not unreasonable for the ALJ to find that his suggested
impairments were not as severe as he alleged); Brooks v. Colvin, No. 2:14CV108 ACL, 2016
WL 931192, at *5 (E.D. Mo. Mar. 11, 2016) (claimant stopped working because his employer’s
plant shut down).
The ALJ also noted Luking’s failure to comply with medical treatment recommendations
for tinnitus management, exercise and weight loss, as well as her failure to use her CPAP
machine on a consistent basis. (Tr. 16, 21-22, 1010, 1016-17, 1032, 1114, 1155, 1158, 1215). An
ALJ may properly consider a claimant’s noncompliance with a treating physician’s directions in

7

his credibility analysis. See Julin v. Colvin, 826 F.3d 1082, 1087 (8th Cir. 2016) (claimant’s
resistance to suggested courses of treatment weighed against her credibility); Bradley v. Astrue,
528 F.3d 1113, 1115 (8th Cir. 2008) (adverse credibility finding supported by claimant’s failure
to attend recommended therapy appointments); Baker v. Barnhart, 457 F.3d 882, 893–94 & n. 7
(8th Cir. 2006) (claimant’s decision not to undertake recommended physical therapy was valid
factor in credibility determination); Choate, 457 F.3d at 872 (noncompliance with a physician’s
directions or prescribed treatment is a valid reason to discredit a claimant’s subjective
allegations); 20 C.F.R. § 404.1530(a-b) (failure to follow a prescribed course of treatment
without good reason precludes a finding of disability). The ALJ nevertheless accounted for
Luking’s hearing impairment and the effects of obesity in the RFC by restricting her exposure to
a loud environment without hearing protection and by limiting her to a reduced range of light
work. (Tr. 19, 21-23).
The ALJ’s credibility finding is further supported by the record evidence that with
treatment, Luking’s symptoms of depression, back pain, and gastritis improved. (Tr. 16, 21-22,
412, 441, 453, 1055, 1048, 1058, 1229). “Evidence of effective medication resulting in relief
may diminish the credibility of a claimant’s complaints.” Guilliams v. Barnhart, 393 F. 3d 798,
802 (8th Cir. 2005); see also Julin, 826 F.3d at 1087.
With regard to her back pain, the ALJ noted Luking’s testimony that she took no pain
medications other than Tylenol and had not tried a TENS unit. 2 Further, no doctor had
recommended surgery or placed any restrictions on Luking’s activities during the course of
treatment (Tr. 20, 47-48); her medical providers repeatedly recorded a normal gait and station
during the course of treatment (Tr. 22, 50, 388, 412, 948, 1026, 1096, 1099, 1109, 1123, 1136,
2

A TENS unit sends an electrical current through the skin for pain control. The unit is usually connected
to the skin using two or more electrodes. www.tensunits.com (last visited Sept. 18, 2017).
8

1163, 1231, 1264, 1276). Luking argues there is no medical evidence in the record suggesting
that a TENS unit, pain medications, or surgery would alleviate her symptoms and/or was
appropriate treatment in her case (Doc. No. 23 at 12). The fact that she has not availed herself of
any alternative pain treatment modalities, however, indicates that she has received only
conservative care for her back pain. See, Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998)
(claimant’s numerous visits to doctors, injections, and use of TENS unit, among other treatment
modalities, supported her allegations of disabling pain); Singh v. Apfel, 222 F.3d 448, 453 (8th
Cir. 2000) (claimant’s allegations of disabling pain may be discredited by evidence that he has
received minimal medical treatment and/or has taken only occasional pain medications); Barrett
v. Shalala, 38 F.3d 1019, 1023-24 (8th Cir. 1994) (allegations of a disabling impairment may be
properly discounted because of inconsistencies such as minimal or conservative medical
treatment).
The ALJ assessed moderate restriction in Luking’s activities of daily living after
acknowledging that she experienced weakness in her legs and problems breathing during the day,
that she napped, and that she needed reminders to take care of her personal needs. (Tr. 18, 27274, 277). However, the ALJ also considered Luking’s statements that she cared for her then 9year old daughter, prepared simple meals, used public transportation, went out alone, shopped
for groceries and necessities two to three times per month, and tried to walk every day and clean
her house (Tr. 18, 21, 37, 60, 272-75). Luking argues that engaging in these types of activities is
not inconsistent with her subjective complaints and provides little to no support for a finding that
she can perform full-time competitive work (Doc. No. 12 at 12). To be sure, “the ability to do
activities such as light housework and visiting with friends” alone are insufficient reason to
discredit Luking’s subjective complaints. Milam v. Colvin, 794 F.3d 978, 985 (8th Cir. 2015)

9

(collecting cases). However, in this case, the extent of Luking’s activities, particularly when
considered in conjunction with the medical record in this case, further supports the ALJ’s
decision. An ALJ may view “[a]cts which are inconsistent with a claimant’s assertion of
disability” to “reflect negatively upon that claimant’s credibility.” Chaney v. Colvin, 812 F.3d
672, 677 (8th Cir. 2016); see also Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011)
(claimant’s daily activities of caring for son and frequently-ill girlfriend, housecleaning, doing
some yard work, occasionally playing sports, and socializing and playing games with friends or
family members detracted from credibility).
Luking argues the ALJ failed to account for side effects from her medication, namely that
her medications caused “a lot of sleepiness.” Although the ALJ did not discuss Luking’s alleged
sleepiness as a side effect, the medical record does not indicate that she complained of this side
effect to her physicians. In fact, the ALJ specifically noted a January 2013 visit during which
Luking reported no side effects from medications and displayed normal attention and
concentration on mental status examination (Tr. 21, 412). Thus, the ALJ did not err in failing to
discuss Luking’s sleepiness as a medication side effect. Christopher-Dell v. Colvin, No.
4:13CV954 ACL, 2014 WL 4840692, at *10 (E.D. Mo. Sept. 29, 2014).
In sum, the ALJ discussed many of the Polaski factors in discounting Luking’s
credibility. Because the ALJ’s credibility findings are supported by good reasons and substantial
evidence, the Court will defer to those findings. Nicholson v. Berryhill, No. 16-4180, 2017 WL
3568200, at *1 (8th Cir. Aug. 18, 2017) (citing Mabry v. Colvin, 815 F.3d 386, 389 (8th Cir.
2016)).
As noted above, Luking does not challenge the ALJ’s consideration of the medical
treatment records or evaluation of the medical opinion evidence. Nevertheless, upon review, the

10

Court finds the ALJ considered a detailed medical record, psychological and neurological
consultative evaluations performed at the ALJ’s request, and the opinion of a state agency
psychological consultant. The ALJ also relied on the testimony of a vocational expert to find
Luking capable of jobs existing in significant numbers in the national economy (Tr. 19-25, 6668). See Milam, 794 F.3d at 985-86 (noting that testimony from a vocational expert based upon a
properly phrased hypothetical question constitutes substantial evidence supporting the ALJ’s
decision). Accordingly, the Court finds the ALJ’s decision is supported by substantial evidence
on the record as a whole.
VI.

Conclusion

For these reasons, the Court finds there is substantial evidence on the record as a whole to
support the ALJ’s determination, and, therefore, the Commissioner’s decision denying benefits
should be affirmed.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED with prejudice. A separate Judgment will accompany this
Order.

Dated this 25th day of September, 2017.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

11