Radford v. Berryhill

Filing 21

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the final decision of the Commissioner denying social security benefits is AFFIRMED. An appropriate Judgment shall accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 03/12/2019. (KCB)

UNIT.ED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CARRIE RADFORD,
Plaintiff,
v.
NANCY BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 4:17CV2561 RLW

MEMORANDUM AND ORDER

This is a prose action under 42 U.S.C. § 405(g) for judicial review of the Commissioner
of Social Security's final decision denying Plaintiff Carrie Radford's application for
Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act").
Because the Appeals Council denied Plaintiff's Request for Review, the decision by the
Administrative Law Judge ("ALJ") is the final decision of the Commissioner. For the reasons
set forth below, the Court affirms the decision of the Commissioner.
I. Procedural History
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Plaintiff protectively filed an application for SSI on May 6, 2014. (Tr. 132) She alleged
disability beginning April 21, 2014. (Tr. 132) Plaintiff's claims were initially denied on June
18, 2014 (Tr. 81), and she filed a request for a hearing before an ALJ (Tr. 88). On May 23,
2016, Plaintiff testified at a hearing before the ALJ. (Tr. 25-48) In a decision dated August 2,
2016, the ALJ determined that Plaintiff had not been under a disability from April 21, 2014
through the date of the decision. (Tr. 488-504) On July 10, 2017, the Appeals Council denied
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Previously, Plaintiff had protectively filed an application for SSI in October 22, 2012 due to disability beginning
April 30. 2006. (Tr. 52) That claim was denied initially on January 15, 2013, and she filed a written request for a
hearing on January 30, 2013. (Tr. 52) After a video hearing was conducted on January 9, 2014, that ALJ
determined Plaintiff was not disabled under the Act and denied benefits. (Tr. 60) She does not appear to have
sought review of that determination before the Appeals Council.

Plaintiffs request for review. (Tr. 8-14) On September 19, the Appeals Council set aside its
previous action to consider additional information Plaintiff provided. (Tr. 1-7) Again, the
Appeals Council found no reason under its rules to review the ALJ' s decision. (Tr. 1) Thus, the
ALJ' s decision stands as the final decision of the Commissioner.

II. Evidence Before the ALJ
At the May 23, 2016 hearing before the ALJ, Plaintiff appeared with counsel. (Tr. 25-28)
Plaintiff testified she was 31 years old at the time of the hearing. She further stated she lived in a
house with her mother and her two children (ages 12 and 10) and has done so for almost five
years. Plaintiff did not have a driver's license and did not plan to get one, but she claimed she
previously had a driver's license and would be able to obtain one. The highest grade level she
completed was 11th grade, and she did not attempt to obtain a GED because she was too busy
with her children. Plaintiff asserted that despite some difficulty with reading comprehension she
is capable of simple math. (Tr. 30-33)
Plaintiff testified she was not currently working. Her sources of income included a
monthly check for $58 through her husband's disability2 and temporary government assistance
for her and her children. Plaintiffs mother worked full-time and her children both attend school.
Plaintiff stated the last time she worked was when she was 14 years old. When she and her
husband lived together for nine years when she was between the ages of 17 and 27, she was a
stay-at-home morn. Since then, Plaintiff testified she has not tried to find work because she has
"too many pains." Specifically, she cited her back, depression, Major Depression, and now a
foot injury. (Tr. 33-34)
At the hearing, Plaintiff testified she was currently using a walking boot. She had
surgery on February 9, 2016 during which ten screws and a four-inch plate were inserted on her
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Plaintiff testified she is legally married (Tr. 3 1), although she does not live with her husband.

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right ankle. She further stated her depression prevents her from doing a lot of things besides
simple tasks around the house to help her mother. These tasks include cooking for her children
and folding laundry. (Tr. 34-36)
Next, the ALJ proceeded to ask Plaintiff questions regarding a list of medications.
Plaintiff stated she takes two medications for her gallbladder. She also takes Gabapentin for her
nerves and lower back pain she says is a result of delivering her youngest child in 2006. Further,
arthritis in her lower spine causes it to pop. Specifically regarding her ankle injury, Plaintiff
stated she no longer used crutches and was not prescribed physical therapy as long as she wore
the walking boot. (Tr. 36-37)
Plaintiff testified she used various antidepressants over the years, including Effexor and
Lithium. She claim the Lithium made her suicidal so she stopped taking it without being
directed by her doctor. Plaintiff stated she had been hospitalized three times for suicide attempts,
most recently in March of 2015 after overdosing on Klonopin. The ALJ asked what follow-up
treatment she underwent, and Plaintiff stated she took the medication as prescribed by doctors at
the hospital. Plaintiff further testified she continued to see a psychiatrist every two months.3
(Tr. 38-42)
During examination by her attorney, Plaintiff stated she did not think she could work a
full-time job. She cited her inability to sit or stand for too long due to her back injury and
claimed she does not get along with new people well which leads to depression. According to
Plaintiff, she spends most of her time on a typical day at home, sitting in her recliner, taking her
medication as prescribed, and "in her own mind." (Tr. 42-44)

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Initially, she was being treated by Dr. Nancy McNail. However, after Dr. McNail herself had back surgery,
Plaintiff began seeing Dr. Bello Adejoh. (Tr. 38-42)

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A vocational expert ("VE") also testified at the hearing. The ALJ asked the VE to
assume a hypothetical individual of Plaintiff's age, education, and past work experience who can
work at a light exertional level as defined in the regulations with the following limitations:
occasionally climb ramps and stairs, occasionally climb ladders, ropes, and scaffolds;
occasionally balance, stoop, kneel, crouch, and crawl. Further, the hypothetical individual
should be able to complete simple, routine tasks in a work environment free of fast-paced
productivity requirements involving simple work-related decisions with few work place changes
and is able to interact appropriately, occasionally, with the general public, coworkers, and
supervisors. Given the hypothetical, the VE testified that nationally there are approximately
384,000 light, unskilled cleaner positions; approximately 326,000 light, unskilled hand packer
positions; and approximately 228,000 production worker assembler positions. (Tr. 44-46)
The ALJ asked the VE to assume a second hypothetical individual with the same
characteristics as the first except to assume this hypothetical individual can work at a sedentary
level as defined in the regulations. The VE testified that nationally there are approximately
22,000 unskilled hand packer positions; approximately 29,000 sedentary, unskilled production
worker assembler positions; and approximately 17 ,000 sedentary, unskilled surveillance system
monitor positions. (Tr. 46)
Lastly, the AJL asked the VE to assume a third hypothetical individual with the same
characteristics as the second but to further assume this hypothetical individual could miss greater
than two unscheduled days from work per month due to symptoms of pain and absenteeism. The
VE testified that amount of absenteeism would likely result in termination, so there were no
applicable jobs. The VE testified that his answers throughout the hearing were consistent with
the Dictionary of Occupational Titles ("DOT"). (Tr. 46)

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Before the hearing concluded, the ALJ asked if Plaintiff had anything further to say.
Plaintiff stated she had written letters but would be unable to read them as they made her cry.
The ALJ confirmed Plaintiffs attorney had submitted a letter, which would be included in the
file. (Tr. 4 7; 207)

III. Medical Evidence
(a) Plaintiff's Right Ankle
In February 2016, Plaintiff sought medical attention after she fell from her front porch. A
few days after seeing personnel at an ER, she went to Mid-West Podiatry & Associates, LLC for
further treatment. Plaintiff was diagnosed with a right ankle fracture. (Tr. 298) Specifically, xrays showed a trimalleolar fracture of her lower right leg. (Tr. 299) A later CT scan revealed a
comminuted oblique fracture extending through her distal fibular and lateral malleolus. There
was also a coronal oriented fracture through her posterior distal tibia, which was displaced
approximately 4 mm. Further, the CT scan showed a comminuted fracture involving the medial
malleolus, which was up to 4 mm of displacement or distraction of the fracture fragments
including approximately 4 mm displacement along the articular surface. The adjacent talus was
grossly intact. The remaining osseous structures of Plaintiffs right ankle were grossly
unremarkable. The distal fibula fracture showed up to 4 to 5 mm of posterior displacement of
the largest posterior fracture fragment. (Tr. 311)
Plaintiff underwent surgery on February 9, 2016. The open reduction with internal
fixation consisted of the implantation of a fibular plate, three 3 .5 x 12 mm screws, two 3 .5 x 14
mm locking screws, one 4.0 x 24 mm micro Asnis screw, one 5.0 x 38 mm micro Asnis screw,
two 4.0 x 300 mm Asnis screws, and one 4.0 x 28 mm Asnis screw. (Tr. 286-89) At a follow-up
examination in March, Plaintiff reported she was not really having any pain in her right ankle.

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Her cast and staples were removed. Plaintiff was provided with a fiberglass cast, instructed to
not bear weight on her right leg, and to keep the cast clean and dry until her next follow-up visit.
(Tr. 294-95)
In April 2016, Plaintiffs cast had broken down because she had been walking on it
despite being instructed not to do so. At a follow-up visit, she denied any pain or tenderness.
The surgical site had no crepitation or instability with stressed range of motion, and the record
reflects ideal correction of the deformity was apparent at the time. Her ankle was recast and she
was again instructed to not bear weight on her right leg. (Tr. 359) A few weeks later, she was
allowed to begin bearing weight. (Tr. 362)
At the last follow-up examination in April 2016, Plaintiff again denied pain or
tenderness. There was minimal swelling and resolved ecchymosis consistent with surgical
intervention. An x-ray showed reasonable alignment and fixation with healing. That assessment
was Plaintiffs status post-surgery was doing well. (Tr. 363-64)

(b) Plaintiffs Mental Health
The record indicates Plaintiff first sought mental health treatment in May 2013. In
February 2014, Dr. Nancy McNail evaluated Plaintiff and noted she reported functioning was
very difficult. Plaintiff presented with anxious/fearful thoughts, depressed mood, difficulty
falling asleep, diminished interest or pleasure, excessive worry, fatigue, decreased libido,
paranoia, racing thoughts, restlessness, and thoughts of death or suicide. Dr. McNail diagnosed
Plaintiff with recurrent major depression. Plaintiff was also prescribed Klonopin and Fetzima.
(Tr. 215-16)
In March 2015, Plaintiff was admitted to a hospital for two days after a minor overdose.
She was also noted as having Post-Traumatic Stress Disorder ("PTSD") and likely borderline

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personality disorder in addition to her diagnosed recurrent major depression. Records reflect her
Global Assessment of Functioning ("GAF") at admission was 40 and at discharge was 60. After
Plaintiff was discharged from the hospital, she was prescribed Effexor, Klonopin, Trilafon,
Neurontin, Bentyl, Senokot, and Colestipol. (Tr. 367)
In April 2016, Plaintiff was prescribed Klonopin, Effexor XR, and Lithium Carbonate.
She did not report any side effects of her various medications. (Tr. 341-43)
(c) Plaintiff's Back Pain
A March 2014 medical report noted Plaintiff presented with low back pain. She
described it as chronic and constant and claimed it had been ongoing for the previous eight years.
During the examination, she had pain with extension. Plaintiff could toe walk and heel walk,
had negative straight leg raising bilaterally, and exhibited tenderness in the lumbar spine and
sacroiliac joints. Further, her gait and station were normal. (Tr. 258-59) In April 2014, an MRI
showed a 4 mm retrolisthesis of L4 on L5, a small broad-based protrusion at L4-5 with no
significant central spinal canal stenosis, and mild left end minimal right L4-5 foraminal stenosis.
(Tr. 271) The record does not indicate any additional treatment or referral to care with a
specialist or prescription for specific medication.

IV. The ALJ's Determination
In a decision dated August 2, 2016, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since April 21, 2014, the application date. The ALJ determined that
Plaintiff had the following severe impairments: recurrent major depressive disorder, PTSD,
borderline personality disorder, arthritis, and degenerative disc disease. However, she did not
have an impairment or combination thereof that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 493)

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After careful consideration of the entire record, the ALJ found that Plaintiff had the
residual functional capacity ("RFC") to perform light work except she can occasionally balance,
kneel, crouch, crawl, stoop and climb ramps, stairs, ladders, ropes, or scaffolds. The ALJ further
found she is able to complete simple, routine tasks in a work environment free of fast-paced
productivity requirements, involving simple work-related decision with few work place changes.
Also, the ALJ concluded Plaintiff is able to occasionally interact appropriately with the general
public, coworkers, and supervisors. However, in light of her younger age, limited education,
lack of work experience, and RFC, the ALJ found that jobs in significant numbers in the national
economy existed which Plaintiff could perform. These jobs include cleaner, hand packer, and
production worker assembler. Therefore, the ALJ concluded that Plaintiff had not been under a
disability from April 21, 2014 through the date of the decision and was not disabled. (Tr. 495499)

V. LegalStandards
A claimant for social security disability benefits must demonstrate that he or she suffers
from a physical or mental disability. The Social Security Act defines disability "as the inability
to do 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." 20 C.F.R. § 404.1505(a).
To determine whether a claimant is disabled, the Commissioner engages in a five step
evaluation process. See 20 C.F.R. § 404.1520(a)(4). Those steps require a claimant to show: (1)
that claimant is not engaged in substantial gainful activity; (2) that she has a severe physical or
mental impairment or combination of impairments which meets the duration requirement; or (3)
she has an impairment which meets or exceeds one of the impairments listed in 20 C.F.R.,

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Subpart P, Appendix 1; (4) she is unable to return to her past relevant work; and (5) her
impairments prevent her from doing any other work. Id.
The Court must affirm the decision of the ALJ if it is supported by substantial evidence.
42 U.S.C. § 405(g). "Substantial evidence means less than a preponderance, but sufficient
evidence that a reasonable person would find adequate to support the decision." Hulsey v.

Astrue, 622 F.3d 917, 922 (8th Cir. 2010). "We will not disturb the denial of benefits so long as
the ALJ's decision falls within the available zone of choice. An ALJ's decision is not outside the
zone of choice simply because we might have reached a different conclusion had we been the
initial finder of fact." Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (citations and
internal quotations omitted). Instead, even if it is possible to draw two different conclusions
from the evidence, the Court must affirm the Commissioner's decision if it is supported by
substantial evidence. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
To determine whether the Commissioner's final decision is supported by substantial
evidence, the Court must review the administrative record as a whole and consider: (1) the
credibility findings made by the ALJ; (2) the plaintiffs vocational factors; (3) the medical
evidence from treating and consulting physicians; (4) the plaintiffs subjective complaints
regarding exertional and non-exertional activities and impairments; (5) any corroboration by
third parties of the plaintiffs impairments; and (6) the testimony of vocational experts when
required which is based upon a proper hypothetical question that sets forth the plaintiffs
impairment. Johnson v. Chater, 108 F .3d 942, 944 (8th Cir. 1997) (citations and internal
quotations omitted).
The ALJ may discount a plaintiffs subjective complaints if they are inconsistent with the
evidence as a whole, but the law requires the ALJ to make express credibility determinations and

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set forth the inconsistencies in the record. Marciniak v. Shala/a, 49 F.3d 1350, 1354 (8th Cir.
1995). It is not enough that the record contain inconsistencies; the ALJ must specifically
demonstrate that she considered all the evidence. Id.
When a plaintiff claims that the ALJ failed to properly consider subjective complaints,
the duty of the court is to ascertain whether the ALJ considered all of the evidence relevant to
plaintiffs complaints under the Polaski4 factors and whether the evidence so contradicts
plaintiffs subjective complaints that the ALJ could discount the testimony as not credible.
Blakeman v. Astrue, 509 F.3d 878, 879 (8th Cir. 2007) (citation omitted). If inconsistencies in

the record and a lack of supporting medical evidence support the ALJ' s decision, the Court will
not reverse the decision simply because some evidence may support the opposite conclusion.
Marciniak, 49 F.3d at 1354.

VI. Discussion
On Plaintiffs pro se Compliant for Judicial Review of Decision of the Commissioner of
Social Security, she claims that the final decision of the Commissioner was not based on
substantial evidence in the record because "[t]hey found no reason under their rules to review the
administrative law judge's decision." (ECF No. 1,

at~

IV) She provided no further explanation

of how specifically she believes the ALJ erred. Plaintiffs two-page Brief in Support of the
Complaint does not present an argument related to the ALJ's decision; rather, it offers
unsupported assertions concerning information that was not before the ALJ. As explained by the

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The Eight Circuit Court of Appeals "has long required an ALJ to consider the following factors when evaluating a
claimant's credibility: '(l) the claimant's daily activities; (2) the duration, intensity, and frequency of pain; (3) the
precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of medication; (5) any functional
restrictions; (6) the claimant's work history; and (7) the absence of objective medical evidence to support the
claimant's complaints."' Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quoting Moore v. Astrue, 572 F.3d
520, 524 (8th Cir. 2009) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).

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Appeals Council (Tr. 2) and more fully addressed below, this additional information does not
relate to the time period at issue and, therefore, cannot be considered now by the Court.
Because Plaintiff is pro se, and due to the judicial preference of resolving suits on the
merits, the Court will review the ALJ's decision on the same argument she offered when she
filed her Request for Review with the Appeals Council: "The disability in my right ankle was not
adequately explored. I had surgery." (Tr. 131)

(a) Supplemental Information Outside Administrative Record
In Plaintiffs Brief in Support of the Complaint, she lists her various mental health
problems. (ECF No. 19, at 1) She further claims to have been hospitalized after a January 2017
suicide attempt. (Id.) According to Plaintiff, she was referred to outpatient psychiatric services
and has been receiving psychiatric care from January 2017 to the present. (Id.) Specifically, she
says she meets with a psychiatrist every two weeks who has prescribed various medications. 5
(Id.) Plaintiffs Brief in Support goes on to detail her current state of mind and alleged inability
to "work or function." (Id. at 1-2)
Judicial review of a Social Security disability claim is limited to the evidence found in
the certified administrative record. See 42 U.S.C. § 405(g) ("The court shall have power to
enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing."). "In the context of judicial review of a decision of the Commissioner
regarding SSI disability benefits, evidence outside the administrative record generally is
precluded from consideration by the court." Baker v. Barnhart, 457 F.3d 882, 891 (8th Cir.
2006). If a claimant presents new evidence related to his or her claims, a court may remand the

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Plaintiff apparently provided medical records concerning this information to the Appeals Council when she filed
her Request for Review, which totaled approximately 237 pages. (Tr. 2)

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case to the Commissioner. "Remand is appropriate only upon a showing by the claimant 'that
there is new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding."' Jones v. Callahan, 122 F.3d 1148, 1154
(8th Cir. 1997) (quoting 42 U.S.C. § 405(g)).
Plaintiff has not formally requested the Court remand her case to the Commissioner.
Further, she has not shown that the new evidence is material to the ALJ's decision. "To be
considered material, the new evidence must be 'non-cumulative, relevant, and probative of the
claimant's condition/or the time period/or which benefits were denied."' Jones v. Callahan,
122 F.3d 1148, 1154 (8th Cir. 1997) (emphasis added) (quoting Woolfv. Shalala, 3 F.3d 1210,
1215 (8th Cir. 1993)). The evidence Plaintiff cites to in her Brief in Support relate specifically to
an alleged suicide attempt in January 2017 and subsequent hospitalization and treatment and
generally to her current state of mind and alleged inability to "work or function." (ECF No. 1)
This information was not part of the record before the ALJ and, therefore, cannot be the basis for
reversal by this Court. As the Appeals Council indicated in its September 19, 2017 Notice: "If
you want us to consider whether you were disabled after August 2, 2016, you need to apply [for
SSI] again." (Tr. 2)

(b) The ALJ's Evaluation of Plaintiffs Ankle Disability
In Plaintiffs Request for Review of the ALJ' s decision filed with the Appeals Council,
Plaintiff argued: "The disability in my right ankle was not adequately explored. I had surgery."
(Tr. 131) Plaintiff does not provide further argument about what specifically she believes the
ALJ failed to consider regarding her ankle injury.
The ALJ evaluated the medical records related to Plaintiffs right ankle fracture,
including the circumstances surrounding Plaintiffs initial injury in February 2016 and the

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specifics of each follow-up examination. Further, the ALJ's decision dated August 2, 2016
explicitly notes she underwent an open reduction internal fixation. (Tr. 493-94) The medical
evidence contained in record demonstrates Plaintiffs right ankle continued to heal well postsurgery despite her failure to adhere to initial instructions to not bear weight on her right leg,
which caused her first cast to break down prematurely. (Tr. 359; 363-64) Ultimately, the ALJ
found Plaintiffs right ankle fracture to be nonsevere as it had not lasted for 12 months. (Tr. 493)
This determination is consistent with relevant definitions of "disability" as contained in the Act
itself and related regulations. See 42 U.S.C. § 423(d)(l)(A) (defining "disability" as "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"); 20 C.F.R. § 404.1505(a)
("The law defines disability as the inability to do 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."). Consequently, the Court finds that substantial evidence supports the ALJ's RFC
finding and determination that Plaintiff was not disabled.
According! y,
IT IS HEREBY ORDERED that the final decision of the Commissioner denying social
security benefits is AFFIRMED. An appropriate Judgment shall accompany this Memorandum
and Order.
Dated this

~y of March, 2019.

~AP>

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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