Rook v. Berryhill

Filing 19

MEMORANDUM AND ORDER: 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. Signed by District Judge Rodney W. Sippel on 3/29/19. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROXANN ROOK,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for
Operations, Social Security
Administration

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Defendant.

MEMORANDUM AND ORDER
Plaintiff Roxann Rook brings this action pursuant to 42 U.S.C. § 405(g)
seeking judicial review of the Commissioner’s decision denying her application for
disability insurance benefits and disabled widow 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
Plaintiff Roxann Rook filed an application for disability insurance benefits
with a protective filing date of January 14, 2014, and an application for disabled
widow’s benefits with a protective filing date of January 16, 2014, pursuant to
Title II, 42 U.S.C. §§ 401 et seq. (Tr. 91-92). Both applications alleged that her

disability began on August 30, 2013. Rook’s applications were denied on initial
consideration. (Tr. 95-105). She requested a hearing before an Administrative
Law Judge (ALJ). Rook, accompanied by counsel, attended the hearing on
January 22, 2016. (Tr. 34). On April 22, 2016, the ALJ issued a decision denying
Rook’s application concluding that Rook was not under a disability. (Tr. 21-29).
On June 9, 2017, the Appeals Council denied Rook’s request for review. (Tr. 1-6).
Rook asserts that she is disabled due to osteoarthritis pain in her hands, back, hips,
and knees.
Rook filed the present appeal for judicial review, seeking remand to the ALJ
because: 1) the ALJ’s determination of Rook’s residual functional capacity was not
supported by the medical evidence of record; 2) the ALJ did not properly weigh
Rook’s testimony at the hearing; and 3) the ALJ failed to weigh a report submitted
by Rook’s former employer.
Administrative Record
For evidentiary purposes, I have considered Rook’s Statement of
Uncontroverted Material Facts (Doc. 12) and the Commissioner’s Statement of
Additional Material Facts (Doc. 17). Both parties admit these facts with
clarifications.

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ALJ Decision
The ALJ found that Rook met the insured-status requirements of the Social
Security Act through December 31, 2018. (Tr. 23). He found that Rook had not
engaged in substantial gainful activity from her alleged onset date of June 30,
2013. (Id. at 24). He also found that Rook suffers from the following severe
impairments: “osteoarthritis and degenerative disc disease.” (Id.). 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. at 25).
After evaluating Rooks’s claims, the medical opinion evidence, and the
medical evidence of record, the ALJ determined that Rook retained the residual
functioning capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b)
except she can occasionally kneel, crouch, crawl, stoop,
and climb ladders and scaffolds; she can frequently
balance and climb ramps and stairs; and, she can have
occasional exposure to unprotected heights, moving
mechanical parts, and vibration.
(Id.).
Based on this RFC determination, the ALJ found that Rook was able to
perform her past relevant work as a cashier and clerk typist and that there were
other jobs in the national economy that she is also able to perform. (Tr. 27). The
ALJ consulted a vocational expert (VE) to assess whether jobs within Rook’s RFC
existed in significant numbers in the national economy. (Tr. 28). The VE
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identified the jobs of general office clerk and data entry clerk. The VE identified
5,400 general office clerk jobs and 4,000 data entry clerk jobs in the State of
Missouri. (Id.). The ALJ therefore determined that Rook was not disabled within
the meaning of the Social Security Act. (Id.).
LEGAL STANDARD
To be eligible for disability insurance benefits under the Social Security Act,
Rook must prove that she 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

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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
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

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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
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.
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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 nonadversarial administrative proceeding. Hildebrand v. Barnhart, 302 F.3d 836, 838
(8th Cir. 2002).
ANALYSIS
A. The ALJ’s determination of Rook’s RFC was supported by the medical
evidence of record.
The ALJ reviewed Rook’s medical records which revealed that she had
osteoarthritis in her hands, osteoarthritis in her right knee, minimal degenerative
joint disease in her left knee, probable early degenerative changes in her hips, and
disc spacing in her back. (Tr. 26-27)
In reviewing the medical records the ALJ noted that Rook’s symptoms have
been treated conservatively mostly with medication to manage her inflammation
and pain.1 (Tr. 26) He noted that Rook’s symptoms improved with treatment.
(Id.) He also noted that Rook reported to her doctors in September 2014 and
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The ALJ notes that despite Rook’s osteoarthritis she has not been referred for specialized treatment. (Tr. 26) This
is not accurate. Rook was referred to and seen by a rheumatologist Hamid Bashir, M.D. on May 27, 2014, who
noted that she had a normal range of motion in all her joints. (Tr. 297) He prescribed a short course of prednisone
and noted that Rook would be referred to physical therapy “afterwards.” (Id.) In a second examination on
December 24, 2015, Dr. Bashir again noted a normal range of motion in all joints. Dr. Bashir advised Rook to
continue taking Celebrex (which she had already been prescribed) which reduces the inflammation and pain caused
by arthritis. (Tr. 292) He also noted that “For any worsening, local steroid [injection], [physical therapy] are
options.” (Id.)
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January and July 2015 that the joint pain in her hands and knees only moderately
limited her activities. (Id., Tr. 328, 334, and 339) I note that in another medical
examination on June 11, 2014, the record notes that the frequency of Rook’s
chronic joint pain episodes “is decreasing” and only moderately limits Rook’s
activities. (Tr. 344)
The ALJ’s determination also relied on the consultative examination of
Rook by Barry Burchett, M.D. on April 16, 2014, who diagnosed Rook with low
back pain and osteoarthritis of the hands and knees. Dr. Burchett summarized that:
[Rook had a] full range of motion in the spine. There is no evidence
of compressive neuropathy in lower extremities. No spasm or
tenderness at the back
There is mild to moderate generalized swelling at the right knee.
There is limitation of passive flection of the right knee. Squatting is
significantly limited because of right knee pain. She walks without a
limp.
There are also some deformities of the hands including some mild
angulation with Heberden’s nodes at the little fingers as well as
moderate swelling in the PIP joints of both middle fingers. Grip
strength is grade 4/5 bilaterally with good effort. She is able to pick
up a coin with the use of hand.
(Tr. 285)
Dr. Burchett also noted that Rook did not have swelling, atrophy, redness,
warmth or tenderness in her hands. (Tr. 281) Rook could fully extend both hands,
make a fist with both hands, all fingers could oppose, and the range of motion of
the joints in the fingers of both hands was normal. She is able to write. (Id.) The
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ALJ gave great weight to the opinions of Dr. Burchett’s examination because the
ALJ felt that they were consistent with the limited treatment record of Rook’s other
medical providers. (Tr. 27)
There is substantial evidence in the record that indicates that Rook’s
osteoarthritis pain has been effectively treated with medication and that her
symptoms only moderately limit her activities. As a result, the ALJ permissibly
determined that Rook is not disabled. See Wildman v. Astrue, 596 F.3d 959, 965
(8th Cir.2010) (“If an impairment can be controlled by treatment or medication, it
cannot be considered disabling.”).
The ALJ acknowledged that Rook’s medical impairments could cause her
symptoms and the she may have some joint pain despite taking her medications.
However, substantial evidence supports the ALJ’s conclusion that Rook’s pain was
not disabling.

The ALJ discounted Rook’s hearing testimony regarding the

intensity, persistence, and limiting effects of her symptoms because they were not
“entirely consistent” with the medical record.
Rook asserts that the ALJ should have considered a questionnaire filled out
by Rook’s former employer regarding the limitations Rook experienced at work.
(Tr. 263) The information in the questionnaire noted similar physical limitations
that Rook provided at her hearing. Because the same substantial medical evidence
the ALJ used to discount Rook’s description of her symptoms would serve to
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discount the information provided in the questionnaire, the ALJ’s failure to
mention the questionnaire in his decision does not merit remand for its
consideration. Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir. 2011).
Finally, I find that the ALJ’s determination of Rook’s RFC is supported by
the medical evidence in the record and identified by the ALJ in his decision.
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 29th day of March, 2019.

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