Macklin v. Berryhill

Filing 21

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the final decision of the Commissioner of Social Security is affirmed. An appropriate Judgment will be entered on this date. Signed by District Judge Rodney W. Sippel on 5/23/2018. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROBERT MACKLIN,

)
)
Plaintiff,
)
)
v.
) No. 4:17 CV 2198 RWS
)
NANCY A. BERRYHILL,
)
Deputy Commissioner of Operations, )
Social Security Administration
)
)
Defendant.
)

MEMORANDUM AND ORDER
Robert Macklin brings this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of the Commissioner’s decision denying his application for
disability insurance benefits. Because the Commissioner’s decision is supported
by substantial evidence on the record as a whole, I will affirm the Commissioner’s
decision.
BACKGROUND
On March 28, 2014, Macklin filed an application for disability insurance
benefits pursuant to Title II, 42 U.S.C. §§ 401 et seq. (Tr. 248). He alleged an
initial onset date of June 30, 2013. (Id.). Macklin’s application was denied on
initial consideration. (Tr. 177). He requested a hearing before an Administrative

Law Judge (ALJ). Macklin, accompanied by counsel, attended the hearing on May
12, 2016. (Tr. 34). The ALJ issued a decision denying Macklin’s application on
June 29, 2016. (Tr. 16). On June 15, 2017, the Appeals Council denied Macklin’s
request for review. (Tr. 1).
Macklin filed the present appeal for judicial review, arguing that: 1) the
ALJ’s determination of Macklin’s residual functional capacity was not supported
by the medical evidence of record; 2) the ALJ did not properly weigh a finding of
disability made by the Department of Veterans’ Affairs (VA); and 3) the ALJ
failed to properly evaluate the credibility of Macklin’s testimony. (Doc. 15 at 6,
10, 11). In response, the Commissioner argues that the ALJ’s RFC determination
was properly formed, that he properly evaluated the VA’s determination of
disability, and that he properly evaluated plaintiff’s credibility in light of the record
as a whole. (Doc. 20 at 5, 11, 8).
Administrative Record
For evidentiary purposes, I have considered Macklin’s Statement of
Uncontroverted Material Facts (Doc. 16). The Commissioner generally objects to
the admission of Macklin’s facts on the grounds that they offer evidence outside
the relevant time period in this appeal, which is the alleged onset date of June 30,
2013, though the date last insured of September 30, 2013. (Doc. 20, Ex. 1).
Because I ultimately affirm the Commissioner’s decision as supported by
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substantial evidence, I have adopted Macklin’s Statement. I also adopt the
Commissioner’s Statement of Additional Facts (Doc. 20, Ex. 2) as uncontroverted
by Macklin. These statements provide a fair and accurate description of the
relevant record before me. I will highlight specific facts as needed in addressing
the parties’ arguments.
ALJ Decision
The ALJ first found that Macklin met the insured-status requirements of the
Social Security Act through September 30, 2013. (Tr. 18). He found that Macklin
had not engaged in substantial gainful activity from his alleged onset date of June
30, 2013. (Id.). He also found that Macklin suffers from the following severe
impairments: “hypertension, osteoarthritis, gastroesophageal reflux disease
(GERD), post-traumatic stress disorder (PTSD), major depressive disorder and
impulse control disorder, not otherwise specified.” (Id.). The ALJ found
Macklin’s alcohol abuse to be non-severe. (Tr. 19). The ALJ found that this
combination of severe impairments did not equate to one of the listings
denominated in 20 CFR 404, Subpt. P, App. 1. (Id.).
After evaluating Macklin’s claims, the medical opinion evidence, and the
medical evidence of record, the ALJ determined that Macklin retained the residual
functioning capacity (RFC) to perform the following tasks:
[Lift]/carry 10 pounds frequently and 20 pounds
occasionally, sit for about 6 hours of an 8-hour workday
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and walk/stand for about 6 hours in an 8-hour workday,
with normal breaks. The claimant can never climb
ladders, ropes or scaffolds, but can occasionally climb
ramps or stairs. He can occasionally balance, stoop,
kneel, crouch and crawl. He can have occasional
exposure to extreme cold, extreme heat, wetness,
humidity, excessive noise, operational control of a motor
vehicle and irritants such as fumes, odors, dust, gases and
poorly ventilated areas. He can have no exposure to
excessive vibration, unprotected heights and hazardous
machinery. He can perform simple, routine tasks in a
low-stress job, defined as having only occasional
decision-making and only occasional changes in work
setting. He can perform work with no production quota.
He can perform work that requires only occasional
interaction with the general public, co-workers and
supervisors.
(Tr. 20).
Based on this RFC determination, the ALJ found that Macklin was no longer
able to perform his past relevant work. (Tr. 25). The ALJ consulted a vocational
expert (VE) to assess whether jobs within Macklin’s RFC existed in significant
numbers in the national economy. (Tr. 25-26). The VE identified the jobs of
garment sorter, work ticket distributor, and checker 1; she further identified these
jobs as light unskilled work within Macklin’s RFC. Finally, the VE identified
217,500 garment sorter jobs, 297,050 work ticket distributor jobs, and 59,430
checker 1 jobs in the national economy. (Tr. 26). The ALJ therefore determined
that plaintiff was not disabled within the meaning of the Social Security Act. (Id.).

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LEGAL STANDARD
To be eligible for disability insurance benefits under the Social Security Act,
Macklin must prove that he is disabled. Pearsall v. Massanari, 274 F.3d 1211,
1217 (8th Cir. 2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552,
555 (8th Cir. 1992). The Social Security Act defines disability as the “inability 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 12
months.” 42 U.S.C. § 423(d)(1)(A). An individual will be declared disabled “only
if [her] physical or mental impairment or impairments are of such severity that
[she] 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.” 42 U.S.C. § 423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482
U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the
claimant is engaged in substantial gainful activity. If the claimant is working,
disability benefits are denied. Next, the Commissioner decides whether the
claimant has a “severe” impairment or combination of impairments, meaning that
which significantly limits her ability to do basic work activities. If the claimant’s
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impairment(s) is not severe, then she is not disabled. The Commissioner then
determines whether claimant’s impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. If claimant’s
impairment(s) is equivalent to one of the listed impairments, she is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform her past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is
capable of performing any other work in the economy. If not, the claimant is
declared disabled and becomes entitled to disability benefits.
I must affirm the Commissioner’s decision if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402
U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
Substantial evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion. Johnson v. Apfel, 240
F.3d 1145, 1147 (8th Cir. 2001). Determining whether there is substantial
evidence requires scrutinizing analysis. Coleman v. Astrue, 498 F.3d 767, 770 (8th
Cir. 2007).
I must consider evidence that supports the Commissioner’s decision as well
as any evidence that fairly detracts from the decision. McNamara v. Astrue, 590
F.3d 607, 610 (8th Cir. 2010). If, after reviewing the entire record, it is possible to
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draw two inconsistent positions and the Commissioner has adopted one of those
positions, I must affirm the Commissioner’s decision. Anderson v. Astrue, 696
F.3d 790, 793 (8th Cir. 2012). I may not reverse the Commissioner’s decision
merely because substantial evidence could also support a contrary outcome.
McNamara, 590 F.3d at 610.
When evaluating evidence of pain or other subjective complaints, the ALJ
should not ignore the subjective testimony of the claimant, even if it is
uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d
1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant’s
subjective complaints when they are inconsistent with the record as a whole. See
e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering the
subjective complaints, the ALJ is required to consider the factors set out by Polaski
v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include:
[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 duration,
frequency, and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects of
medication; and (5) functional restrictions.
Id. at 1322. When an ALJ explicitly finds that the claimant’s testimony is not
credible and gives good reasons for the findings, the court will usually defer to the
ALJ=s finding. Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007). However, the
ALJ retains the responsibility of developing a full and fair record in the non7

adversarial administrative proceeding. Hildebrand v. Barnhart, 302 F.3d 836, 838
(8th Cir. 2002).
ANALYSIS
A. The ALJ’s determination of plaintiff’s RFC was supported by the medical
evidence of record.
Macklin cites Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000), and Lauer v.
Apfel, 245 F.3d 700, 704 (8th Cir. 2001), for the proposition that the determination
of plaintiff’s RFC is ultimately a medical question. As noted above, the record
must therefore include some medical evidence that supports the RFC. Dykes v.
Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (internal citation omitted).
However, “there is no requirement that an RFC finding be supported by a
specific medical opinion.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016).
Macklin argues that the ALJ “[cites absolutely no medical opinion evidence
plaintiff was capable of lifting 20 pounds and/or being on his feet 6/8 hours, and he
could sit 6/8 hours.” (Doc. 15 at 8). This argument is belied by a plain reading of
the opinion.

The ALJ discusses the portion of the medical record used in

formulating the physical component of plaintiff’s RFC at length. (Tr. 21-22). In
particular, the ALJ discusses the medical evidence provided by treating physicians
at the VA:
[Between January 2013 and April 2016,]… providers
completed a range of tests/examinations, including an
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MRI of the right knee that showed probable mucoid
degeneration in the after crucial ligament, with a
questionable area of the medial meniscus along [its]
interior [Tr. 357], an x-ray of the left knee that [showed]
osteoarthritis and a small amount of joint effusion [Tr.
376], and an x-ray of the right knee that showed minimal
osteoarthritis and patellar spurs [Tr. 377, 380]… specific
physical/psychological examination findings were rather
unremarkable, but did chronicle the claimant’s
complaints of knee pain, elevated blood pressure,
depression
and
PTSD/anxiety.
Treatment
recommendations included referral to orthopedic surgery
[Tr. 480], medication management, a period of physical
therapy [Tr. 688], home exercise program, 2 of 3
injections in his knee [Tr. 436], gait training with a
prescription for a cane [Tr. 445-446], right knee brace
[Tr. 451], a knee elevator [Tr. 681], a blood pressure cuff
[Tr. 685]… and other conservative treatments. The
records reflect that he did not attend physical therapy…
He described the knee pain as off and on [Tr. 729]… [he]
reported that he did not do his home exercise program
[Tr. 436]. The claimant had an orthopedic surgery
consul, and they recommended injections, but no surgery
was recommended [Tr. 482]… [He] was scheduled for
psychiatric care, but did not show for multiple
appointments [Tr. 502]. [His pain medications were]
commonplace medications and the record does not
establish that he was prescribed stronger pain medication
or even requested it. The records reflect that the claimant
had left knee arthroscopic surgery for a strained ACL [in
1996] [Tr. 635]; however, based on earnings records, the
evidence does not support that this surgery had a long
term adverse impact on his work activity [Tr. 254].
(Tr. 21).

The ALJ also discussed the medical opinion of Sarwath

Bhattacharya, M.D., who examined plaintiff in 2014:
[Plaintiff] did not use an assistive device, but he
did limp. [He] had no paravertebral muscle spasm or
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tenderness in his back. He was able to walk on his heels
and toes. [He] was able to flex and touch his toes. He
was able to squat down without any problem. He had no
problem getting up and down [from] the exam table. His
straight leg raising was within normal limits. He had a
well-healed surgical [scar] on his left knee. He had
dexterous movement of his fingers for gross and fine
manipulation. His handgrips were 5/5. He had good
range of movement of the upper and lower extremities.
He had no effusion in his knees. He may have had mild
crepitation in both of his knees, but his range of motion
was within normal limits in his knees. He had good
range of movement of all the extremities.
Neurologically, there was no sensor loss. His deep
tendon reflexes were equal and bilaterally and his toes
were downgoing. Right knee x-ray showed trace
patellofemoral spur formation, the left knee showed
slight patellofemoral spur formation and slight medial
femoral condylar spur formation [Tr. 359-367]. Dr.
Bhattacharya’s examination findings and medical
opinions are given great weight because he had an
opportunity to examine the claimant and his examination
findings are consistent with the remainder of the
treatment records.
(Tr. 22).
Macklin seems to be arguing that because the ALJ points to no direct
quotation from a medical opinion discussing plaintiff’s ability to lift 20 pounds or
sit for 6 hours, the ALJ did not support the RFC with the medical evidence of
record as a whole. This is precisely the “specific medical opinion” Hensley states
is unnecessary. Id., 829 F.3d at 932. Furthermore, although the ALJ does not
specifically cite this in his opinion, the record of Dr. Bhattacharya’s examination
of Macklin includes several statements of plaintiff that go directly to supporting
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this aspect of his RFC. During that June 2014 examination, a year after his alleged
onset date, Macklin stated to Dr. Bhattacharya that he could walk four to five
blocks with the assistance of his knee braces, that he could lift 50 pounds, and that
he could climb a flight of stairs. (Tr. 360). The ALJ’s assessment of Macklin’s
physical RFC is thus more conservative, in some respects, than what Macklin
himself asserted he could still do.
In addressing the mental component of plaintiff’s RFC, the ALJ relied on the
VA records and on the medical opinion of Kirmach Natani, Ph.D., who conducted
a psychological evaluation in June of 2014. (Tr. 22). The ALJ gave portions of
Dr. Natani’s opinion diagnosing Macklin’s PTSD and depression great weight
because they were consistent with the record as a whole. (Id.). To the extent the
ALJ gave Dr. Natani’s findings as to Macklin’s concentration, persistence, or pace
little weight, he did so because other evidence in the record supported the finding
that Macklin was more limited in those respects than Dr. Natani diagnosed. (Id.).
The ALJ likewise gave little weight to the opinion of non-examining physician
Terry Dunn, Ph.D., who reviewed the medical evidence on the record at the request
of the Commissioner, because the ALJ found that the record as a whole
demonstrated greater limitations than those stated in Dr. Dunn’s opinion. (Tr. 23).
The ALJ incorporated these limitations into his evaluation of Macklin’s
RFC. As noted above, the ALJ’s RFC determination found that plaintiff “could
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never climb ladders, ropes, or scaffolds… [nor] be exposed to excessive vibration,
unprotected heights, or hazardous machinery… [and needed] simple, routine tasks
in a low stress job with no production quota, with only occasional interaction with
the general public, co-workers and supervisors.” (Tr. 20). I therefore find that the
ALJ properly considered the medical opinions of Macklin’s VA providers, Dr.
Bhattacharya, Dr. Natani, and Dr. Dunn in evaluating plaintiff’s RFC.
B. The ALJ properly considered the VA’s evaluation of Macklin’s disability.
The VA’s determination that a given person is disabled is not binding on an
ALJ considering that person’s claim for Social Security benefits.

Jenkins v.

Chater, 76 F.3d 231, 233 (8th Cir. 1996). However, the VA’s determination is
“entitled to some weight and must be considered in the ALJ’s decision.” Morrison
v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998) (internal citations omitted).
In this case, the VA determined that Macklin “had a 50% disability due to
major depressive disorder, moderate, recurrent, 10% osteoarthritis in the right
knee, 20% of the left knee with history of partial tear and 10% GERD… [as well
as] 50% due to sleep apnea.” (Tr. 23-24). The ALJ gave these ratings “no
weight[,] because the determination as to whether a claimant is disabled is reserved
to the Commissioner and the Agency is not bound by the decisions or ratings of
disability from the VA...” (Tr. 24). This is the sole mention in the ALJ’s decision
of the weight given to the VA’s determination. Macklin argues that the ALJ’s
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decision “does not even discuss this critical finding by the [VA]… [the ALJ] offers
absolutely no rationale relative to the consultative evaluator for the VA’s opinion
[that] [Macklin] would have reduced social and occupational reliability, nor does it
discuss what the ratings and their severity level in turn meant.” (Doc. 15 at 10-11).
An ALJ need not explicitly address the components of another agency’s
disability evaluation when he or she fully considers the underlying evidence as part
of his or her own evaluation. Pelkey v. Barnhart, 433 F.3d 575, 579-580 (8th Cir.
2006). As discussed previously, the ALJ fully considered the medical evidence of
record.

This included the medical records provided by the VA’s treating

physicians, upon which the VA’s own determination was based.

The ALJ’s

responsibility to consider the VA’s findings was substantively discharged, even if
he did not formally discuss each rating in detail. Pelkey v. Barnhart requires no
more.
C. The ALJ properly evaluated Macklin’s credibility in light of the record as
a whole.
As noted above, the ALJ must consider Macklin’s testimony, but may
disbelieve it when it is not consistent with the record as a whole. Basinger, 725
F.2d at 1169; see also Battles, 902 F.2d at 660, and Polaski, 739 F.2d at 1322
(enumerating factors for the ALJ to consider in evaluating plaintiff’s testimony).
When the ALJ explicitly disbelieves the claimant’s testimony and gives good
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reasons for such disbelief, a reviewing court will typically defer to the ALJ’s
finding. Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007).
Macklin argues that the ALJ did not properly evaluate the credibility of his
testimony in light of his activities of daily living. Macklin argues that “he need not
establish that he is bedridden in order to establish he has chronic disabling pain.”
(Doc. 15 at 17). Macklin cites Baumgarten v. Chater, 75 F.3d 366 (8th Cir. 1996),
for the proposition that a plaintiff “need not prove that [his] pain precludes all
productive activity and confines [him] to life in front of the television.” Id. at 369
(internal citation omitted). “[The] ability to do activities such as light housework
and visiting with friends provides little or no support for the finding that a claimant
can perform full-time competitive work.”

Id. (internal citation and quotation

omitted); see also Burress v. Apfel, 141 F.3d 875, 881 (8th Cir. 1998) (holding that
washing dishes, cooking, dusting, sweeping, making beds, vacuuming, doing
laundry, caring for pets, visiting with others, watching television, and driving
moderate distances were not dispositive of plaintiff’s disability claim when they
were performed slowly and occasionally due to plaintiff’s medical impairments.)
However, Macklin’s activities of daily living in this case extend well beyond
the “light housework” contemplated in Baumgartner et al. The medical evidence
of record indicates that despite alleging disabling knee pain from June 2013
onward, Macklin was riding his bicycle in September 2015. (Tr. 740, 744). See
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Bernard v. Colvin, 774 F.3d 482, 489 (8th Cir. 2014) (holding that plaintiff’s
ability to ride his bicycle was inconsistent with allegations of disabling foot
cramps).

Macklin reported performing “odd jobs” for additional income in

September 2014. (Tr. 588). At some time prior to May 2015, the record indicates
that Macklin found full-time employment as a maintenance worker. (Tr. 406).
“Working generally demonstrates an ability to perform a substantial gainful
activity.” Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005) (internal citation
omitted.)

As a result, I find that the ALJ permissibly evaluated Macklin’s

testimony in light of the evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the final decision of the Commissioner of
Social Security is affirmed.
An appropriate Judgement will be entered on this date.

_________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of May, 2018.

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