Wright v. Berryhill

Filing 23

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 andOrder is entered this same dated.. Signed by District Judge Henry Edward Autrey on 08/02/2019. (AAS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARVON WRIGHT,
Plaintiff,
v.
ANDREW M. SAUL, 1
Commissioner of Social Security,
Defendant.

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Case No. 4:18CV771 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the application of plaintiff for
supplemental security income benefits under Title XVI of the Act, 42 U.S.C. §§
1381-1385. For the reasons set forth below, the final decision of the Commissioner
is affirmed.
Background

1

The Court takes judicial notice that on June 4, 2019, Andrew M. Saul was confirmed as
Commissioner of Social Security. See https://www.congress.gov/nomination/116th-congress/94.
Pursuant to Federal Rule of Civil Procedure 25(d), Commissioner Saul is substituted for Nancy
A. Berryhill as defendant in this action. No further action needs to be taken to continue this suit
by reason of 42 U.S.C. § 405(g) (last sentence).

Plaintiff was 42 years old at the time of his alleged disability onset. He filed
his application on October 2, 2014, alleging a September 4, 2014 onset date, and
alleging disability due to hypertension, chronic back pain, issues with his lungs,
and migraine headaches. Plaintiff’s application was denied, and he requested a
hearing before an Administrative Law Judge (ALJ).
On February 20, 2015, a hearing was held. Following the hearing, an ALJ
issued a decision on May 24, 2017 finding that plaintiff was not disabled under the
Act. The Appeals Council denied his request for review on March 23, 2018. Thus,
the decision of the ALJ stands as the final decision of the Commissioner.
ALJ Hearing
Plaintiff testified at the hearing that he was 44 years old at the time of the
hearing. He lives with his wife in a rented home. He has a driver’s license and
drives about two to three times per week. He has no past relevant employment.
Plaintiff further testified that he has trouble standing for long periods of time, has
back pain and pain shooting down his legs. He has trouble breathing, due to lung
surgery. He also experiences headaches. Plaintiff testified that he has some
mental health issues; he has trouble being around large groups of people and
becomes irritated. He has a home health aide who assists him with household
chores. He has dizzy spells. He uses oxygen and takes nebulizer treatments three
to four times per day.
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Robert Hammond, a vocational expert (“VE”), testified by telephone. In
response to the ALJ’s hypothetical question, the VE testified that there are jobs in
the national economy that a 44 year old person with no past relevant work history
that is limited to work at the sedentary level with no climbing of ladders, ropes or
scaffolds, occasional stooping, kneeling, crouching and crawling and climbing
stairs and ramps, avoidance of concentrated exposure to pulmonary irritants,
changing positions for a few minutes every 30-45 minutes while remaining at the
work station and staying on task, with work limited to simple, routine tasks, and
simple work-related decisions, and occasional interaction with the public and
occasional interaction with co-workers could perform, to wit: a circuit board
screener, an eyewear assembler, and a semiconductor bonder.
Decision of the ALJ
On May 30, 2017, the ALJ issued a decision finding that plaintiff was not
disabled. At Step One, the ALJ found that plaintiff had not performed substantial
gainful activity since September 4, 2014, his application date. At Step Two, the
ALJ found that plaintiff had the severe impairments of lumbar and cervical
degenerative disc disease, diabetes mellitus, chronic obstructive pulmonary disease
(COPD)/sarcoidosis, obesity, depression, and anxiety. However, the ALJ found
plaintiff did not have an impairment or combination of impairments listed in or

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medically equal to one contained in the Listings, 20 C.F.R. part 404, subpart P,
appendix 1.
The ALJ determined that plaintiff retained the residual functional capacity to
perform “sedentary” work with the following limitations. He should avoid
climbing ladders, ropes, or scaffolds and could only occasionally climb ramps and
stairs, stoop and crouch, kneel or crawl. He must avoid concentrated exposure to
pulmonary irritants such as fumes, dust, or gases. He should have an allowance to
change positions for a few minutes every 30-45 minutes while staying at the work
station and remaining on task. In addition, plaintiff could only perform simple,
routine tasks and simple work-related decisions in an environment where contact
with co-workers or the general public was only occasional.
At Step Four, the ALJ found that plaintiff had no past relevant work. At Step
Five, the ALJ found there were jobs that exist in significant numbers in the
national economy that plaintiff could perform, including work as a circuit board
screener, eye wear assembler, and semiconductor bonder. The ALJ therefore
concluded that plaintiff was not “disabled” under the Act.
General Legal Principles
The Court’s role on judicial review of the Commissioner’s decision is to
determine whether the Commissioner’s findings apply the relevant legal standards
to facts that are supported by substantial evidence in the record as a whole.
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Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). “Substantial evidence is less
than a preponderance but is enough that a reasonable mind would find it adequate
to support the Commissioner’s conclusion.” Id. In determining whether the
evidence is substantial, the Court considers evidence that both supports and
detracts from the Commissioner's decision. Id. As long as substantial evidence
supports the decision, the Court may not reverse it merely because substantial
evidence exists in the record that would support a contrary outcome or because the
Court would have decided the case differently. See Krogmeier v. Barnhart, 294
F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove he is unable to
perform any substantial gainful activity due to a medically determinable physical
or mental impairment that would either result in death or which has lasted or could
be expected to last for at least twelve continuous months. 42 U.S.C. §§
423(a)(1)(D), (d)(1)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory
framework is used to determine whether an individual is disabled. 20 C.F.R. §
404.1520(a)(4); see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987)
(describing five-step process).
Steps One through Three require the claimant to prove: (1) he is not
currently engaged in substantial gainful activity; (2) he suffers from a severe
impairment; and (3) his condition meets or equals a listed impairment. 20 C.F.R. §
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404.1520(a)(4)(i)-(iii). If the claimant does not suffer from a listed impairment or
its equivalent, the Commissioner’s analysis proceeds to Steps Four and Five. Step
Four requires the Commissioner to consider whether the claimant retains the RFC
to perform past relevant work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears
the burden of demonstrating he is no longer able to return to his PRW. Pate-Fires,
564 F.3d at 942. If the Commissioner determines the claimant cannot return to his
PRW, the burden shifts to the Commissioner at Step Five to show the claimant
retains the RFC to perform other work that exists in significant numbers in the
national economy. Id.; 20 C.F.R. § 404.1520(a)(4)(v).
Discussion
Plaintiff argues that the RFC is not supported by any medical opinion of
record; (2) the RFC assessment lacks rationale describing how the evidence
supports the findings; and (3) the ALJ failed to conduct a proper credibility
determination.
Plaintiff argues that the ALJ erred in giving significant weight to Dr. Melvin
Butler’s opinion because he did not assess Plaintiff’s ability to sit, stand, walk,
lift/carry, push or pull, and that there is no opinion from any medical source
addressing these actions. He further argues that Dr. Butler’s opinion was rendered
at the beginning of his alleged disability onset and therefore did not adequately
assess Plaintiff’s medical condition.
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The ALJ explained his reasons for giving Dr. Butler’s opinion significant
weight. No treating source indicated that Plaintiff has specific functional
limitations. The ALJ thoroughly considered all the medical records Plaintiff
submitted. While Plaintiff argues that if the ALJ gave significant weight to Dr.
Butler’s opinion, he would have found that Plaintiff had no restrictions, whereas,
the ALJ’s decision reflects a variety of restrictions. The ALJ, however, gave
significant weight to Dr. Butler’s opinion in conjunction with the medical records
before him. Subsequent to Dr. Butler’s consultative examination, Plaintiff sought
and received further medical treatment. The ALJ did not solely rely on Dr.
Butler’s examination, rather, he assessed all the medical evidence in the record.
From the combination of Dr. Butler’s opinion and the medical records, the ALJ
determined Plaintiff’s RFC. His determination was clearly based on medical
evidence in the record.
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
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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.
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
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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
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.
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In his RFC determination, in addition to Plaintiff’s testimony, the ALJ
considered the Department of Corrections records that document Plaintiff’s care.
In March 2015, Plaintiff showed minimal grade 1 anteriolisthesis at L5-S1 with
minimal degenerative disc disease. Further X-rays showed slightly straightened
lumbar lordosis due to muscle spasms, stable mild decrease in L5-S1 intervertebral
disc height, and stable face arthrosis at L3-4, L4-5, and L5-S1. The progress note
from the following day indicated Plaintiff was in only mild distress. The report
references previous MRI that showed disc herniation with minimal canal stenosis
at L4-5 and L5-S1. Dr. Ebersole, the examining specialist noted that Plaintiff’s leg
pain was inconsistent with the imaging studies. The Thoracic MRI showed no
central canal stenosis or cord signal abnormality.
In July 2015, Dr. Howard Place stated that none of the previous MRI
findings seemed to explain Plaintiff’s symptoms and that he did not see any
indications for surgical intervention.
Plaintiff received care from Dr. Dannie Williams in March 2016. Dr.
Williams noted in July 2016 that Lyrica controlled Plaintiff’s neuropathy
symptoms. Plaintiff’s depression was better on Remeron. Jardiance controlled
Plaintiff’s blood sugars. The July 22, 2016 chest X-rays showed surgical changes
in the lower lungs and faint patchy opacities in the right upper lobe that could

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represent pneumonia or pulmonary nodules but there was not significant worsening
from earlier studies.
In terms of pain management, Plaintiff began treatment in July 2016.
The ALJ considered Plaintiff’s medical treatment and factored in his
conditions into the RFC determination. While Dr. Butler did not limit Plaintiff
with restrictions, the ALJ thoroughly examined the other medical evidence to
determine what Plaintiff is capable of doing. He limited Plaintiff to sedentary
work with frequent position changes. The ALJ factored in Plaintiff’s impairments
for the final RFC determination. Pain management treatments controlled
Plaintiff’s symptoms. Notable, there was no evidence of reports of pain or a need
for strong pain medication consistent with interfering with a normal work
schedule.
Other medications given for Plaintiff’s diabetes and depression and anxiety
were effective in controlling Plaintiff’s medical and mental impairments. Likewise,
Plaintiff’s pulmonary condition improved with cauterization in December 2016.
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
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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
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.
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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).
Based on the record as a whole, the ALJ did not err in placing significant
weight on Dr. Butler’s opinion while adding limitations on Plaintiff’s RFC. The
ALJ appropriately assessed Plaintiff’s subjective complaints in conjunction with
the medical records. Any discrepancies between credibility findings regarding
what Plaintiff stated he could or could not do are not inconsistent because of the
medical records with support some of Plaintiff’s complaint while discounting
others.
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 2nd day of August, 2019.

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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