Roussin v. Berryhill

Filing 22

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment in accordance with this Opinion, Memorandum and Order is entered this same dated. Signed by District Judge Henry Edward Autrey on 3/18/19. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN D. ROUSSIN, JR.,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. 4:17CV2917 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff is not disabled and thus not
entitled to disability insurance benefits or supplemental security income under
Title II, 42 U.S.C. §§ 401-434, and Title XVI, 42 U.S.C. § 1381-1385,
respectively. For the reasons set forth below, Commissioner’s decision is affirmed.
Facts and Background
Plaintiff filed his applications for disability insurance benefits under Title II,
and for SSI under Title XVI, on August 29, 2014 and October 28, 2014,
respectively. Plaintiff was born in 1963, reported a high school education (GED),
and alleged disability beginning April 10, 2014. Plaintiff’s insured status under
Title II of the Act expired on June 30, 2016. In his Disability Report, Plaintiff

alleged disability due to degenerative disc disease of the low back, osteoarthritis,
and stenosis.
The ALJ found that Plaintiff had severe impairments of degenerative disc
disease of the lumbar spine, obesity, and chronic obstructive pulmonary disease
(COPD). The ALJ did not find Plaintiff had an impairment or combination of
impairments listed in or medically equal to one contained in 20 C.F.R. part 404,
subpart P, appendix 1.
The ALJ found that Plaintiff retained the residual functional capacity (RFC)
to perform a range of light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b). Plaintiff was determined to be able to lift up to 20 pounds
occasionally, lift and carry up to 10 pounds frequently, stand and walk with normal
breaks for about six hours in an eight hour day. He can sit with normal breaks for
about six hours in an eight hour day. Plaintiff can never climb ladders, ropes, or
scaffolds, but can occasionally climb stairs and ramps. He can occasionally
balance, stoop, kneel, crouch, and crawl. Plaintiff can have no exposure to
extreme heat or cold, humidity, excessive vibration, irritants, unprotected heights,
or hazardous machinery. The ALJ concluded that Plaintiff’s impairments would
not preclude him from performing work that exists in significant numbers in the
national economy, those jobs including the light and unskilled jobs of folder,
cleaner, and counter attendant.
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Standard for Determining Disability
The standard of review here is limited to a determination of whether the
decision is supported by substantial evidence on the record as a whole. See Milam
v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015). Substantial evidence is less than
preponderance, but enough that a reasonable mind might accept as adequate to
support the Commissioner’s conclusion. See id.
The Court must consider evidence that both supports and detracts from the
Commissioner’s decision but cannot reverse the decision because substantial
evidence also exists in the record that would have supported a contrary outcome, or
because it would have decided the case differently. See Andrews v. Colvin, 791
F.3d 923, 928 (8th Cir. 2015). If the Court finds that the evidence supports two
inconsistent positions and one of those positions represents the Commissioner’s
findings, the Court must affirm the Commissioner’s decision. Wright v. Colvin,
789 F.3d 847, 852 (8th Cir. 2015). The Eighth Circuit has stated that “[w]e defer
heavily to the findings and conclusions of the Social Security Administration.”
Id. (quoting Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010)).
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
has lasted or can be expected to last for a continuous period of not less than twelve
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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
one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the
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“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.
RFC

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A claimant's 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.
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:
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(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
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
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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).
The ability to do basic work activities is defined as “the abilities and
aptitudes necessary to do most jobs.” 20 C.F.R. § 416.921(b). These abilities and
aptitudes include (1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing,
and speaking; (3) understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding appropriately to supervision, coworkers, and usual work situations; and (6) dealing with changes in a routine work
setting. Id. § 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
“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 ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th
Cir. 2007) (internal quotation marks omitted).
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If the claimant has a severe impairment, then the Commissioner will
consider the medical severity of the impairment. If the impairment meets or equals
one of the presumptively disabling impairments listed in the regulations, then the
claimant is considered disabled, regardless of age, education, and work experience.
20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d); see Kelley v. Callahan, 133 F.3d 583,
588 (8th Cir. 1998).
If the claimant’s impairment is severe, but it does not meet or equal one of
the presumptively disabling impairments, then the Commissioner will assess the
claimant’s RFC to determine the claimant’s “ability to meet the physical, mental,
sensory, and other requirements” of the claimant’s past relevant work. 20 C.F.R.
§§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a medical question defined wholly in
terms of the claimant’s physical ability to perform exertional tasks or, in other
words, what the claimant can still do despite his physical or mental limitations.”
Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing
evidence the Commissioner will use to make a finding as to the claimant’s RFC,
but the Commissioner is responsible for developing the claimant’s “complete
medical history, including arranging for a consultative examination(s) if necessary,
and making every reasonable effort to help [the claimant] get medical reports from
[the claimant’s] own medical sources.” 20 C.F.R. § 416.945(a)(3). The
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Commissioner also will consider certain non-medical evidence and other evidence
listed in the regulations. See id. If a claimant retains the RFC to perform past
relevant work, then the claimant is not disabled. Id. § 416.920(a)(4)(iv).
If the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to prove
that there is other work that the claimant can do, given the claimant’s RFC as
determined at Step Four, and his or her age, education, and work experience. See
Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner
must prove not only that the claimant’s RFC will allow the claimant to make an
adjustment to other work, but also that the other work exists in significant numbers
in the national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir.
2004); 20 C.F.R. § 416.920(a)(4)(v). If the claimant can make an adjustment to
other work that exists in significant numbers in the national economy, then the
Commissioner will find the claimant is not disabled. If the claimant cannot make
an adjustment to other work, then the Commissioner will find that the claimant is
disabled. 20 C.F.R. § 416.920(a)(4)(v). At Step Five, even though the burden of
production shifts to the Commissioner, the burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
Evidentiary Hearing and ALJ’s Decision
A: Did the ALJ Fail to Fully and Fairly Develop the Record?
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At the administrative hearing, Plaintiff testified that he was unable to
continue doing his former job of driving a truck and unloading furniture because of
his back pain. He was given progressively fewer unloading assignments, and was
switched to just washing cubicle windows. This became too demanding as well.
Plaintiff takes two medications for his back. One is anti-inflammatory; the other is
for pain. Plaintiff testified that he continues to smoke. He also testified that he
experiences anxiety, but takes no medication for the anxiety and has never
discussed it with his physician. Plaintiff can shower on his own, but has difficulty
breathing while showering, if he is rushed. Anything type of activity that has to do
with walking results in Plaintiff wheezing. He is short-winded, especially when
carrying groceries. He has had to stop and rest when going up or down a flight of
stairs and when sweeping.
Plaintiff argues that the ALJ did not fully develop the record because he did
not obtain medical evidence that addressed Plaintiff’s ability to function in the
workplace.
The ALJ discussed the objective medical findings presented in the record.
Plaintiff’s MRI showed narrowing of the L4-5 disc space with lateral recess
stenosis, but without bone marrow edema, contusion, or replacement, and nerve
roots of equal size and signal. Plaintiff showed reduced ranges of motion in the
lumbar spine to 85 degrees of flexion 20 degrees of extension and 30 degrees of
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lateral flexion during a February 2013 examination. The ALJ determined that
although the findings confirmed the presence of lumbar spine degenerative disc
disease, this evidence did not support the degree of limitation Plaintiff claimed.
Plaintiff had, at the February 2013 exam full ranges of motion of the hips, knees,
and ankles, without edema and normal deep tendon reflexes. Again, in November
2013, Plaintiff had pain with motion of the lumbar spine, but had full range of
motion of the upper and lower extremities, no synovial swelling, and normal deep
tendon reflexes.
Consultative examining physician Dr. Spivack found, in January 2015, that
Plaintiff’s back was non-tender, Plaintiff had a normal gait and could stand on his
heels and toes. Plaintiff was able to get around the room without difficulty. Some
slightly reduced cervical ranges of motion and reduced lateral flexion of the
lumbar spine were observed by Dr. Spivack. Plaintiff also had full flexionextension of the lumbar spine. Plaintiff did show positive straight leg raising
bilaterally at 8 degrees, but also showed normal 5/5 muscle strength of the upper
and lower extremities, normal 5/5 grip strength, normal deep tendon reflexes, and
normal sensory testing.
With respect to Plaintiff’s COPD, Plaintiff’s pulmonary function tests were
consistent with COPD and showed some worsening in the January 2015 test from
the February 2013 test. Both tests, however, were below Listing Level. During
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exams in November 2013 and September 2015, Plaintiff showed normal
respiratory efforts and a normal inspection. Plaintiff indicated in November 2014
that he could walk one-half to an hour without needing to stop and rest. The record
also establishes that Plaintiff continued to smoke heavily despite his breathing
troubles and medical advice to stop smoking. See Wheeler v. Apfel, 224 F.3d 891,
895 (8th Cir. 2000) citing Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997);
Choate v. Barnhart, 457 F.3d 865, 872 (8th Cir. 2006) (“[A]n ALJ may properly
consider the claimant’s . . . failing to take prescription medications, seek treatment,
and quit smoking.”)
Based on the evidence in the record, the ALJ took all of Plaintiff’s medical
issues into consideration and factored them into his determination of what Plaintiff
is capable doing. He placed limitations on the types of work he can perform; light
range of work with specific limitations regarding physical and environmental
limitations.
The ALJ’s findings were supported by the medical evidence in the record,
and there was substantial evidence for him to determine that Plaintiff could
perform in the workplace.
“[w]hile an ALJ does have a duty to develop the record, this duty is not
never-ending. . . . The ALJ is required to order medical examinations and
tests only if the medical records presented to him do not give sufficient
medical evidence to determine whether the claimant is disabled.” McCoy v.
Astrue, 648 F.3d 605, 612 (8th Cir. 2011). Because the medical evidence in
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the record constituted sufficient evidence of [Plaintiff’s] RFC, the ALJ was
not required to further develop the record before him.
Gilby v. Commissioner, Social Security Administration, Cause Number 18-2395
(8th Cir. March 18, 2019).
B. Did the ALJ Fail to Properly Consider Residual Functional Capacity
(RFC).
To be sure, “[b]ecause a claimant’s RFC is a medical question, an ALJ’s
assessment of it must be supported by some medical evidence of the claimant’s
ability to function in the workplace.” Hensley v. Colvin, 829 F.3d 926, 932 (8th
Cir. 2016). However, “there is no requirement that an RFC finding be supported by
a specific medical opinion.” Id. Thus, even were NP Price considered an
acceptable medical source whose opinion is “normally entitled to great weight,”
the Commissioner still “may assign little weight to a treating physician’s opinion
when it is either internally inconsistent or conclusory.” Thomas v. Berryhill, 881
F.3d 672, 675 (8th Cir. 2018). In other words, a “treating physician’s opinion does
not automatically control, since the record must be evaluated as a whole.” Reed v.
Barnhart, 399 F.3d 917, 920 (8th Cir. 2005). “The regulations require that the ALJ
‘always give good reasons’ for the weight afforded to a treating physician's
evaluation.” Id. at 921, citing 20 C.F.R. § 404.1527(d)(2).
Plaintiff argues that the ALJ did not properly determine Plaintiff’s RFC. He
argues the ALJ should have considered sedentary work for Plaintiff and had he
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assessed the sedentary work specifications, Plaintiff would meet the requirements
to qualify for benefits. Plaintiff argues that the ALJ failed to adequately explain
how Plaintiff can stand and walk six hours per day with his breathing obstruction.
As the ALJ pointed out, Plaintiff’s claims can be discounted because of his failure
to quit smoking even though his physician advised him to do so.
The ALJ noted that he considered all symptoms and the opinion evidence in
the record. The ALJ noted that Plaintiff’s statements concerning the intensity,
persistence and limiting effects of his symptoms are not entirely consistent with the
medical evidence and other evidence in the record. The hypothetical question
posed to the VE was based on the ALJ’s findings and limitations needed for
Plaintiff’s medically established impairments. The hypothetical question includes
only those impairments that the ALJ found credible. The ALJ articulated
Plaintiff’s impairments and included them in his hypothetical question; he was not
required to limit the hypothetical beyond what the evidence in the record
established. The ALJ properly assessed Plaintiff’s RFC and included the proper
limitations, based on substantial evidence in the record, in his hypothetical
question to the VE.
Conclusion
Based upon the foregoing, the ALJ’s decision is based upon substantial
evidence in the record.
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Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED.
A separate Judgment in accordance with this Opinion, Memorandum and
Order is entered this same dated.
Dated this 18th day of March, 2019.

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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