Winslett v. Berryhill

Filing 22

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief requested in Plaintiffs Complaint and Brief in Support of Complaint is DENIED. [Docs. 1 , 17 , 18 , 19 ]. IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commi ssioner affirming the decision of the administrative law judge. IT IS FURTHER ORDERED that the Clerk of Court shall substitute Andrew M. Saul for Nancy A. Berryhill in the court record of this case.. Signed by Magistrate Judge Nannette A. Baker on 07/15/2019. (AAS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CHRISTOPHER L. WINSLETT,
Plaintiff,
v.
ANDREW M. SAUL1,
Commissioner of Social Security,
Defendant.

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Case No. 4:18-CV-1006 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Christopher L. Winslett’s appeal regarding the denial of
disability insurance benefits and supplemental security income under the Social Security Act. The
Court has jurisdiction over the subject matter of this action under 42 U.S.C. § 405(g). The parties
have consented to the exercise of authority by the United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). [Doc. 9] The Court has reviewed the parties’ briefs and the entire administrative
record, including the transcript and medical evidence. Based on the following, the Court will
affirm the Commissioner’s decision.
Issues for Review
Winslett, proceeding pro se, presents several issues for review 2. First, Winslett asserts that
the Missouri Department of Family Services and a Vocational Rehabilitation expert confirm that

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At the time this case was filed, Nancy A. Berryhill was the Acting Commissioner of Social Security. Andrew M.
Saul became the Commissioner of Social Security on June 4, 2019. When a public officer ceases to hold office
while an action is pending, the officer’s successor is automatically substituted as a party. Fed. R. Civ. P. 25(d).
Later proceedings should be in the substituted party’s name and the Court may order substitution at any time. Id.
The Court will order the Clerk of Court to substitute Andrew M. Saul for Nancy A. Berryhill in this matter.
2
The Court has liberally construed Mr. Winslett’s letters [Docs. 17, 18, 19] as his Brief in Support of Complaint.
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (pro se pleadings must be liberally construed); Stone v. Harry, 364 F.3d

he is unable to work. Second, he asserts that the vocational expert at his administrative hearing
testified that he would be unable to work. Third, he contends that information was improperly
expunged from the administrative record. Finally, he states that there was a false statement
regarding when he stopped working in the final decision.
Standard of Review
The Social Security Act defines disability as an “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 has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). This Court reviews the decision of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is less
than a preponderance, but enough that a reasonable mind would find adequate support for the
ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The Court determines whether
evidence is substantial by considering evidence that detracts from the Commissioner’s decision as
well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006). The Court
may not reverse just because substantial evidence exists that would support a contrary outcome or
because the Court would have decided the case differently. Id. If, after reviewing the record as a
whole, the Court finds it possible to draw two inconsistent positions from the evidence and one of
those positions represents the Commissioner’s finding, the Commissioner’s decision must be
affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).

912, 915 (8th Cir. 2004) (essence of pro se litigant’s allegation must be discernable, even if it is not pleaded with
legal nicety).

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The Court must affirm the Commissioner’s decision so long as it conforms to the law and
is supported by substantial evidence on the record as a whole. Collins ex rel. Williams v. Barnhart,
335 F.3d 726, 729 (8th Cir. 2003).

“In this substantial-evidence determination, the entire

administrative record is considered but the evidence is not reweighed.” Byes v. Astrue, 687 F.3d.
913, 915 (8th Cir. 2012).
Discussion
A.

Contents of the Administrative Record
Winslett directs the Court to two issues regarding the information contained in the

administrative record. First, he states that the administrative law judge (“ALJ”) improperly
expunged his medical records from the administrative record. [Docs. 18, 19] In her written
opinion, the ALJ noted that she expunged 5 pages of records from the administrative record,
because the information contained in those pages was related to another individual. (Tr. 21) The
Commissioner contends that these records were unrelated to Winslett and were properly removed
from the record. Winslett has not provided any support for his claim that the records removed by
the ALJ were his medical records. It is not uncommon for the Social Security Administration to
correct the inadvertent disclosure of another person’s records in a social security action and the
agency should do so as soon as it is discovered. See e.g. McKinney v. Colvin, No. CIV-12-1120
LAM, 2013 WL 12328838 at *1, n. 1 (D. New Mexico Dec. 12, 2013) (transcript removed from
court docket because it referred to the personal and private information of an individual other than
Plaintiff). The removal of records from a claimant’s file that do not pertain to the claimant does
not constitute grounds for reversal on appeal.

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Next, Winslett submits additional medical records with his filings stating that these medical
records were “expunged to deny my claim also.” [Doc. 19 at 2-89] Winslett asserts that he is
resubmitting all records and documents which support the approval of his claim to federal court.
The Commissioner contends that these records are already included in the administrative transcript
filed by the Commissioner. The Court has reviewed the records submitted by Winslett and all of
them were included in the administrative transcript submitted by the Commissioner. [Doc. 12]
Therefore, the documents submitted by Winslett have been considered by the Court and are a part
of the official administrative record.
B.

ALJ’s Disability Determination
The Social Security Administration (“SSA”) uses a five-step analysis to determine whether

a claimant seeking disability benefits is in fact disabled.

20 C.F.R. §§ 404.1520(a)(1),

416.920(a)(1). First, the claimant must not be engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

The ALJ determined that Winslett met the insured

requirements of the Social Security Act through December 31, 2017 and had not engaged in
substantial gainful activity (“SGA”) since September 27, 2014, the alleged onset date. Winslett
contends that the ALJ’s finding of his SGA date is incorrect, because he has not worked since
November 9, 2012.
In addition to determining whether an individual is disabled, the ALJ must also establish
the onset date of disability. Titles II and XVI: Onset of Disability, SSR 83-20, 1983 WL 31249
at *1. “Substantial gainful activity means work that – (a) involves doing significant and productive
physical or mental duties; and (b) Is done (or intended) for pay or profit.” 20 C.F.R. §§ 404.1510,
416.910. The ALJ’s finding is supported by substantial evidence in the record. Winslett’s
application states that he became unable to work on September 27, 2014. (Tr. 317.) Winslett

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alleges that he stopped working on November 9, 2012, therefore, he did not work after the alleged
onset date of September 27, 2014 and the ALJ’s finding is correct.
Second, the claimant must establish that he or she has an impairment or combination of
impairments that significantly limits his or her ability to perform basic work activities and meets
the durational requirements of the Act. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The
ALJ found that Winslett had the severe impairments of degenerative disc disease of the lumbar
spine, chronic pain syndrome, chronic asthma and bronchitis, and morbid obesity. (Tr. 24)
Winslett does not contest this finding.
Third, the claimant must establish that his or her impairment meets or equals an impairment
listed in the appendix of the applicable regulations.

20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the claimant’s impairments do not meet or equal a listed impairment, the
SSA determines the claimant’s residual functional capacity (“RFC”) to perform past relevant work.
20 C.F.R. §§ 404.1520(e), 416.920(e). The ALJ found that Winslett did not have an impairment
or combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 27) Winslett does not contest this
finding.
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The ALJ found that
Winslett had the RFC to perform light work with the following additional requirements: (1) never
climb ladders, ropes or scaffolds; (2) occasionally climb ramps and stairs; (3) occasionally
balance, stoop, kneel, crouch, and crawl; (4) cannot work at unprotected heights or around moving
mechanical parts or other such hazards; and (5) no concentrated exposure to extreme heat, cold,
dust, fumes, or other pulmonary irritants. (Tr. 27) The ALJ found that Winslett could not perform

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his past relevant work as a mixer or warehouse worker with the limitations of his RFC. (Tr. 33)
Winslett does not contest this finding.
Because Winslett met his burden that he was unable to perform past relevant work, the
analysis proceeds to step five. At step five, the burden shifts to the Commissioner to establish the
claimant maintains the RFC to perform a significant number of jobs in the national economy.
Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). If the claimant satisfied all of the criteria under
the five-step evaluation, the ALJ will find the claimant to be disabled.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

20 C.F.R.

The ALJ found that considering Winslett’s age,

education, work experience, and residual functional capacity, there are jobs that exist in significant
numbers in the national economy that Winslett could perform. (Tr. 34) Therefore, the ALJ
determined that Winslett had not been under a disability, as defined in the Social Security Act,
from September 27, 2014, through the date of the decision. (Tr. 35)
Winslett asserts that other agencies have found him disabled, therefore, the ALJ’s final
decision of non-disability is in error. He directs the Court to the grant of Medicaid and home
health care services from the Missouri Department of Social Services and a letter from the state
Vocational Rehabilitation that states he cannot be retrained for work due to his medical problems.
(Tr. 430, 1625-29.) When a claimant submits documentation regarding findings of disability by
other nongovernmental or governmental agencies, the ALJ should consider those findings. Pelkey
v. Barnhart, 433 F.3d 575, 579 (8th Cir. 2006). Nevertheless, an ALJ is not bound by the disability
rating of another agency when he is evaluating whether the claimant is disabled for purposes of
social security disability benefits. Hensley v. Colvin, 829 F.3d 926, 935 (8th Cir. 2016) (citing
Pelkey, 433 F.3d at 579-80). Determinations made by other agencies that a claimant is disabled
are not binding on the Social Security Administration. 20 C.F.R. §§ 404.1504, 916.904. In this

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case, the ALJ considered the findings provided by the aforementioned agencies and gave them
little weight. (Tr. 32-33)
The Missouri Department of Social Services (“DSS”) found that Winslett was medically
eligible for Missouri Health Net benefits due to a permanent and total disability in 2016. (Tr.
1625-1629) The ALJ gave the finding little weight, because the finding was based on state agency
rules and the totality of evidence failed to establish objective clinical signs and diagnostic findings
supportive of the alleged pain intensity or degree of functional limitations alleged by Winslett.
(Tr. 32-33) Although the state agency refers to some of the social security regulations in its
evaluation, the Social Security Administration is not bound by DSS’s decision.
Winslett also refers the Court to a February 2016 finding by a vocational rehabilitation
counselor Brenne Ardrey that stated “Per our conversation and the medical records reviewed, your
doctor indicates you are not a suitable candidate for a rehabilitation program at this time.
Therefore, no case will be opened at this time, until your doctor medically releases you to work.”
(Tr. 430) The ALJ gave little weight to Ardrey’s statement, because Ardrey was not an acceptable
medical source under social security regulations and the ALJ found her opinion was formulated
based on Dr. Patricia Litkowski’s opinion, which the ALJ also gave little weight. (Tr. 32, 63536.) The ALJ had found that Dr. Litkowski’s opinion relied heavily on Winslett’s subjective
complaints of fatigue, low energy, severe pain, and inability to walk without a cane, rather than
objective diagnostic studies or clinical signs. (Tr. 32)
The Court finds that the ALJ properly considered the opinions of the other agencies along
with the other evidence in the record and the ALJ’s evaluation of the other agencies’ opinions is
supported by substantial evidence.

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Further, Winslett contends that the ALJ’s finding is erroneous, because the vocational
expert testified that he was unable to work. “Testimony from a vocational expert constitutes
substantial evidence only when based on a properly phrased hypothetical question.” Pickney v.
Chater, 96 F.3d 294, 296 (8th Cir. 1996). A “hypothetical question posed to a vocational expert
must capture the concrete consequences of claimant’s deficiencies.” Pickney, 96 F.3d at 297.
“[T]he ALJ’s hypothetical question must include those impairments that the ALJ finds are
substantially supported by the record as a whole.” Id. at 296. “However, the hypothetical question
need only include those impairments which the ALJ accepts as true.” Grissom v. Barnhart, 416
F.3d 834, 837 (8th Cir. 2005). At the administrative hearing, the ALJ asked the vocational expert
several hypothetical questions. In response to the hypothetical that later became the RFC, the
vocational expert testified that there were jobs of hand packer and production worker assembler
available. (Tr. 170-71) The ALJ also asked if there would be jobs available if the exertional level
was sedentary. (Tr. 171) The vocational expert testified that there would be unskilled hand packer
and unskilled production worker assembler jobs available. (Tr. 171) The vocational expert then
testified that if there were an added limitation of an individual being off task for 15 percent of the
work day or absent two or more days per month, due to symptoms from their condition or pain,
the individual would be unable to do any past relevant work or work in the national economy. (Tr.
172) The vocational expert also testified that if the hypothetical individual had to lay down one to
two hours during the work day, they would not be able to work in the national economy. (Tr. 172)
The vocational expert testified that if the hypothetical person had to take additional rest breaks
during the day, it would not be tolerated and would result in termination. (Tr. 172) The RFC
determination made by the ALJ did not include the limitations that the vocational expert testified
were incompatible with work; therefore, the vocational expert’s testimony regarding those

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limitations are not applicable to Winslett’s case. The hypothetical question included all of
Winslett’s limitations that the ALJ found to be credible. Therefore, the hypothetical question to
the vocational expert was proper and the vocational expert testimony constituted substantial
evidence supporting the Commissioner’s denial of benefits. See LaCroix v. Barnhart, 465 F.3d
881, 889 (8th Cir. 2006).
CONCLUSION
The Court finds that substantial evidence supports the ALJ’s decision as a whole. As noted
earlier, the ALJ’s decision should be affirmed “if it is supported by substantial evidence, which
does not require a preponderance of the evidence but only enough that a reasonable mind would
find it adequate to support the decision, … and the Commissioner applied the correct legal
standards.” Turpin v. Colvin, 750 F.3d 989, 992-93 (8th Cir. 2014). The Court cannot reverse
merely because substantial evidence also exists that would support a contrary outcome, or because
the court would have decided the case differently.

Id.

Substantial evidence supports the

Commissioner’s final decision.
Accordingly,
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. [Docs. 1, 17, 18, 19]
IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the
Commissioner affirming the decision of the administrative law judge.

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IT IS FURTHER ORDERED that the Clerk of Court shall substitute Andrew M. Saul for
Nancy A. Berryhill in the court record of this case.

NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
Dated this 15th day of July, 2019.

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