Jack v. Colvin

Filing 18

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is reversed and remanded.IT IS FURTHER ORDERED that this matter is remanded to the Commissioner for further consideration of the record. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 8/15/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SYDNEY M. JACK,
Plaintiff,
v.

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security Administration,
Defendant.

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No. 4:16CV1531 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 supplemental security income under Title XVI of the Social
Security Act (Act), 42 U.S.C. §§1381, et seq. For the reasons set forth below, the
Court will reverse and remand the Commissioner's denial of Plaintiff's
applications.
Facts and Background
On June 24, 2015, Administrative Law Judge Michael Lehr conducted a
video hearing at Kansas City, Missouri. Plaintiff appeared in St. Louis and the
Vocational Expert, Jennifer Smidt, appeared by phone. The claim was initially
filed on August 9, 2012, and was denied by the State agency on November 16,

2012. On December 6, 2012, a request for hearing was held. Hearings were
subsequently held but not concluded as the ALJ who conducted the hearings
retired before completing the case. A hearing was held on June 24, 2015.
Plaintiff was born on April 21, 1981, and was 33 years old at the time of the
hearing. Plaintiff has completed high school. At the time of the most recent
hearing Plaintiff was living with her mother.
Plaintiff has prior work experience as a cashier at a fast food restaurant,
bagger at a grocery store, childcare in a daycare center, and as a dietary aide at a
nursing home. Plaintiff also has experience in a janitorial cleaning service.
The record reflects Plaintiff has complained of being unable to work at the
same pace as others in her past employment. She also testified that she has
difficulty concentrating on more than one thing at a time. Plaintiff also testified
that she had back pain and her left hand goes numb which creates difficulty in
carrying objects. The difficulty with her hand resulted from an injury sustained
while working. There was also testimony regarding the mental functioning of the
Plaintiff and her intellectual abilities.
The ALJ also heard testimony that the Plaintiff has difficulty concentrating
on things and intellectual ability issues. There was evidence that the more recent
IQ score of Plaintiff was just above 70. In addition, there was evidence that
Plaintiff could count, write, read, care for herself and perform household tasks.
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There was testimony from the Vocational Expert. The Vocational Expert
testified that based on an individual of Plaintiff’s age, education, vocational
history, and RFC Plaintiff could perform work existing in significant numbers
including the light and unskilled jobs of bakery-conveyor worker, children’s
attendant, stock checker/apparel, and usher.
The ALJ determined that Plaintiff was not entitled to a finding of disabled.
The Appeals Council denied Plaintiff’s request for review on August 5, 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 ALJ
failed to properly consider Plaintiff’s back impairment in assessing her limitations;
the ALJ failed to properly consider Listing 12.05C; and the ALJ’s failed to use a
proper hypothetical question to the Vocational Expert.
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
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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
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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.

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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
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.

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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
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
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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).
ALJ Decision
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
activity from the application date of August 9, 2012. The ALJ found at Step Two

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that Plaintiff had the severe impairments of obesity and learning disability with
borderline intellectual functioning.
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 (20 CFR 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 light work, including the ability to lift and
carry up to 20 pounds occasionally, and 10 pounds frequently, stand and/or walk
for up to 6 hours in an 8 hour day, and sit for up to 6 hours in an 8 hour day. The
claimant can never climb ropes, ladders or scaffolding, but can occasionally climb
ramps and stairs, balance, stoop, kneel, crouch and crawl. She cannot have
concentrated exposure to temperature extremes, vibration and work hazards.
Claimant can frequently, but not constantly, use the dominant left upper extremity
to grossly handle and fine finger. Due to her mental impairments, the claimant is
limited to simple, unskilled work.
At Step Four it was the finding of the ALJ that Plaintiff had no past relevant
work.
Step Five the ALJ concluded that Plaintiff was not under a disability.
Judicial Review Standard
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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
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)).

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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
I. Did the ALJ Properly Consider the Non-Severe Back Impairment in
Determining the Residual Functional Capacity?
Plaintiff asserts the ALJ did not properly assess her RFC and disregarded the
non-severe back impairment in that the ALJ did not include any corresponding
limitations in the RFC. A complete review of the record and decision of the ALJ
confirm that Plaintiff has not established an error in the ALJ’s analysis that
requires remand on this point. See Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.
2005) (“[A]n administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion.”). “As long as substantial
evidence in the record supports the Commissioner’s decision, [the Court] we may
not reverse it either because substantial evidence exists in the record that would
have supported a contrary outcome or because we would have decided the case
differently.” Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001).

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A review of the record demonstrates the sufficiency and appropriateness of
the ALJ decision and his review and recitation of limitations that he noted.
Substantial evidence supports the ALJ’s decision that Plaintiff simply did not meet
her burden to prove a disabling RFC. See Hensley v. Colvin, 829 F.3d 926, 932
(8th Cir. 2016) (“‘[T]he burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of production
shifts to the Commissioner at step five [of the sequential evaluation process].’”)
(quoting Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)).
The ALJ considered Plaintiff’s lack of treatment for this condition, the lack
of prescription pain medication, and normal objective medical findings including a
normal gait, full range of motion of the spine and all extremities except for a slight
restriction of lumbar flexion, and the abilities to squat, stand on her heels and toes,
and tandem walk. The ALJ also noted that Plaintiff reported she carried a 40pound bag of her belongings around all the time while she was homeless. The
consultative psychologist also noted that Plaintiff was carrying a large duffle bag
when he examined her on November 7, 2012. See 20 C.F.R. §§ 404.1529, 416.929
(“In determining whether you are disabled, we consider all your symptoms,
including pain, and the extent to which your symptoms can reasonably be accepted
as consistent with the objective medical evidence and other evidence.”). In
limiting Plaintiff to a light range of work with additional postural and
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environmental limitations, the ALJ adequately accounted for the supportable
degree of limitation due to Plaintiff’s severe and non-severe medical impairments.
II. Did the ALJ Properly Determine Plaintiff Did Not Meet Listing 12.05C?
Plaintiff asserts that the ALJ erred in determining whether she met Listing
12.05C, pertaining to intellectual disability. “Intellectual disability refers to
significantly sub-average general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before age 22.” 20 C.F.R. pt.
404, subpt. P, app. 1 § 12.05. “[T]he requirements in th[is] introductory paragraph
are mandatory.” Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006).
There were findings relating to adaptive functioning or deficits made by the
ALJ that the record does not seem so support. The ALJ found Plaintiff “worked in
the past on a part-time basis without much difficulty.” But there is no evidence that
appears to support it. The record shows that Plaintiff had some limited earnings but
speaks not of the degree of difficulty related to the limited employment. There was
evidence in the record that Plaintiff in fact had difficulty in her limited mployment
and she testified that employers got angry with her because she could not keep
pace.
The ALJ found “the claimant testified that she is able to help around the
house doing some cooking and cleaning, take the trash out and can perform
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personal care without difficulty. Plaintiff actually testified that she could do chores
in a limited and partial way.
In weighing and balancing the evidence the ALJ put little, if any,
consideration, in the homeless status of the Plaintiff who a short time prior to her
hearing began living with her mother. As noted by Plaintiff an ALJ must “properly
analyze the effects of a structured setting” and consider “the potentially mitigating
effect of life in structured setting, whether an institution or home, upon ymptoms.”
Nowling v. Colvin, 813 F.3d 1110, 1121-22 (8th Cir. 2016).
The ALJ failed to analyze Plaintiff’s deficits in adaptive functioning, and
limited analysis to the psychiatric review technique’s assessment of adaptive skills.
Within the IQ listing analysis, the ALJ did not reach the step of making a finding
regarding the sufficiency of Plaintiff’s adaptive deficits.
After careful review, the Court finds the ALJ’s decision is partially
supported by the record and in part not supported by the record as it relates to the
findings of Listing 12.05.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of
Social Security is reversed and remanded.
IT IS FURTHER ORDERED that this matter is remanded to the
Commissioner for further consideration of the record.
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A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 15th day of August, 2017.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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