Caton v. Astrue

Filing 19

ORDER - The defendant's decision is affirmed. Signed on 8/12/11 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
MARKELL K. CATON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 10-04097-CV-C-DGK

ORDER
Pending before the Court is the Plaintiff’s appeal of the Social Security Administration’s
denial of her application for disability insurance benefits and supplemental security income. The
Court has conducted an independent review of the record and considered the arguments set forth
in the parties’ briefs. For the reasons discussed herein, the Defendant’s decision is AFFIRMED.
Background
The complete facts and procedural history are discussed at length in the parties’ briefs
and are repeated here only to the extent necessary.
Standard
The Court’s review of the Defendant’s decision is limited to whether it is consistent with
the relevant case law, statutes and regulations, and whether the ALJ’s findings of fact are
supported by substantial evidence. 42 U.S.C. § 405(g).

Substantial evidence review is a

deferential standard intended to determine whether the evidence was “enough that a reasonable
mind would find it adequate to support the ALJ’s decision.” Gonzales v. Barnhart, 465 F.3d
890, 894 (8th Cir. 2006). Substantial evidence is “less than a preponderance.” Id. The purpose
of substantial evidence review is not to reach an independent conclusion, and thus it is irrelevant

that there may have been substantial evidence for a different result. Nevland v. Apfel, 204 F.3d
853, 857 (8th Cir. 2000). The Court must consider the entire record, including evidence that
detracts from the ALJ’s decision. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008).
In determining a claimant’s eligibility, the Defendant employs a five-step process. First,
the Defendant determines if the claimant is engaged in “substantial gainful activity.”1 If so, the
claimant is not disabled. If not, the inquiry continues. Next, the Defendant determines if the
claimant has a “severe medically determinable physical or mental impairment” or a combination
of impairments. If so, and they meet the duration requirement,2 the inquiry continues. If not, the
claimant is not disabled. Next, the Defendant considers whether any such impairment is a
“listing impairment” found in Appendix 1 of 20 C.F.R. § 404.1520. If so, the claimant is
disabled. If not, the inquiry continues. Next, the Defendant considers whether the claimant’s
residual functional capacity (“RFC”) includes the ability to perform past relevant work.3 If so,
the claimant is not disabled. If not, the inquiry continues. Finally, the Defendant considers
whether, in light of the claimant’s age, education and work experience, the RFC finding would
allow the claimant to make an adjustment to other work. 20 C.F.R. § 416.920(a)(4)(i)-(v). If so,
the claimant is not disabled. If not, the claimant is found disabled and the inquiry ends. As the
party requesting relief, claimants bear the burden to prove that they are disabled. However, at
Step 5, the Defendant is “responsible for providing evidence that demonstrates that other work
exists in significant numbers in the national economy that [the claimant] can do, given [the
claimant’s RFC] and vocational factors.” 20 C.F.R. § 404.1560(c)(2).

1

Work is substantial if it “involves doing significant physical or mental activities…” Work is gainful if it is “do[ne]
for pay or profit…[or] the kind of work usually done for pay or profit, whether or not a profit is realized.” 20 C.F.R.
§ 404.1572. Thus, work must be substantial and gainful, but need not be substantially gainful.
2
“Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a
continuous period of at least 12 months. We call this the duration requirement.” 20 C.F.R. § 416.909.
3
The Defendant defines RFC as “the most you can still do despite your limitations.” 20 C.F.R. § 416.945(a)(1).

2

In denying the Plaintiff’s application, the ALJ found that she had not engaged in
substantial gainful activity since her alleged onset date of December 1, 2004, though she had
worked in lesser capacities. R. at 38. He then found that she had the severe impairments of
degenerative changes of the cervical spine and knees, but did not have a listing impairment. Id.
at 39. He found that though she had the RFC to perform the “full range of sedentary work as
defined in [the relevant regulations]…” she could not perform any past relevant work. Id. at 39,
42. Making use of the Medical-Vocational Guidelines found in 20 C.F.R. Part 404, Subpart P,
Appendix 2, the ALJ found that the Plaintiff could perform other work and was therefore not
disabled. Id. at 43.
The Plaintiff argues that the Appeals Council wrongfully failed to consider new evidence
she submitted. She further claims that the ALJ erred in relying on the Guidelines rather than a
vocational expert in making his Step 5 determination and in performing improper RFC and
credibility analyses. The Court will address these issues in turn.
Discussion
A. The Appeals Council Did Not Fail to Consider Material Evidence
After her initial denial, the Plaintiff requested review by the SSA’s Appeals Council. In
support of this request, she submitted six exhibits which were not before the ALJ. Doc. 13-1-136. The Plaintiff claims that the Appeals Council failed to consider these exhibits and failed to
remand the case in light of the new evidence pursuant of 42 U.S.C. § 405(g) (describing judicial
remand “only upon a showing 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”).
Evidence is “material” if it is “relevant to [a] claimant’s condition for the time period for which
benefits were denied.” Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir. 2000).

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While the Plaintiff is correct that the new exhibits do not appear on the Appeals
Council’s exhibit list, she is incorrect that the Appeals Council ignored them. The Appeals
Council noted that it had received and considered these exhibits but found them to be “about a
later time…[and] [t]herefore…do[] not affect the decision about whether you were disabled
beginning on or before [the date of decision.]” R. at 2. The Plaintiff’s opening brief does not
make note of this, but cites a regulation requiring the Appeals Council to consider “any new and
material evidence submitted to it which relates to the period on or before the date of the [ALJ’s]
decision.” 20 C.F.R. § 404.976(b)(1). The Government notes that Document 13-5 was included
in the Administrative Record, suggesting that the Appeals Council did consider it. R. at 149.
Regarding the other exhibits, the Government reiterates the Appeals Council’s statement that
these medical records do not pertain to the Plaintiff’s ability to work on December 5, 2008, the
date of decision. The Plaintiff filed no reply brief.
The Plaintiff’s failure to acknowledge a glaring contradiction to her arguments—found
on the second page of the record—and subsequent failure to respond to the Government’s
argument is telling. Without expressing a view on whether anything contained in these records
could lead to a determination of disability, it is clear that they are not “material” due to the time
period.4

While medical records necessarily mention previous examinations, progressive

symptoms, etc., the Court cannot reasonably read any of the assessments of the Plaintiff’s
limitations retroactively to before December 2008. While the remedy to the Plaintiff—filing a
new application—is not particularly satisfying from an administrative economy perspective, the
Court cannot abdicate its appellate review role to order consideration of immaterial evidence.

4

Document 13-1 relates to an examination which took place on July 2, 2009. Document 13-2 relates to August
through October 2009. Document 13-3 relates to a February 2010 psychiatric examination. Document 13-4 relates
to January 2010. Document 13-5 is a rent due notice from March 2010. Document 13-6 is a psychological visit
report from October 2009.

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B. The ALJ’s Credibility Determination, and Consequent RFC and Step 5 Findings,
Were Properly Supported
The Plaintiff claims that the ALJ erred in making his Step 5 determination solely on the
Medical-Vocational Guidelines—known as the Grids.

She claims that the presence of

nonexertional limitations required the testimony of a vocational expert. An exertional limitation
is one the affects a claimant’s “ability to meet the strength demands of jobs (sitting, standing,
walking, lifting, carrying, pushing, and pulling)” and an nonexertional limitation is one that
limits a claimant’s ability for reasons other than strength. 20 C.F.R. § 404.1569a(b)-(c). “If the
nonexertional impairments significantly affect the RFC…the guidelines are not controlling and
may not be used to direct a conclusion of not disabled.” Muncy v. Apfel, 247 F.3d 728, 735 (8th
Cir. 2001) (quoting Holz v. Apfel, 191 F.3d 945, 947 (8th Cir. 1999)). The ALJ found that the
Plaintiff had degenerative changes of the cervical spine and knees, but could perform sedentary
work as defined by the Defendant’s regulations. See 20 C.F.R. § 404.1567(a) (“Sedentary work
involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria
are met.”). The Plaintiff claims that her pain, obesity, mental impairments, numbness, and
gastrointestinal sensitivities are all nonexertional impairments that should have been considered
by a vocational expert at Step 5. The Court will first consider whether the ALJ erred in
discounting the Plaintiff’s claims of subjective impairments, and then whether his use of the
Grids was appropriate.
The ALJ found that the Plaintiff was not credible to the extent that her claimed subjective
symptoms exceeded his RFC determination. R. at 42. “To assess a claimant’s credibility, the
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ALJ must look to the claimant's daily activities; the duration, frequency, and intensity of pain;
precipitating and aggravating factors; dosage, effectiveness, and side effects of medication; and
functional restrictions.” Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008) (citing Polaski v.
Heckler, 739 F.3d 1320, 1322 (8th Cir. 1984)). The absence of objective medical evidence to
support the subjective complaints is a relevant factor but is not sufficient to make an adverse
credibility determination.

Halverson v. Astrue, 600 F.3d 922, 931-32 (8th Cir. 2010).

Credibility is generally a fact issue for ALJs to decide, and their determinations are entitled to
deference when explicit and well-supported. Karlix v. Barnhart, 457 F.3d 742, 748 (8th Cir.
2006).
Regarding the Plaintiff’s alleged mental health limitations, the Court first notes that the
Plaintiff’s apparent suicide attempt took place in January 2010, outside of the relevant period.
Doc. 13-4 at 38. For the relevant time period, the Plaintiff stated that she stopped taking the
prescribed medication because she “didn’t like it” and that she had not sought mental health care
from any other source. R. at 22-23. Failure to follow treatment regimen and/or seek treatment is
relevant to an adverse credibility determination. Pate-Fires v. Astrue, 564 F.3d 935, 945-46 (8th
Cir. 2009). Regarding her abdominal problems, the Plaintiff stated that she has diarrhea and
vomiting every time she eats, which has not improved since a 2008 surgery. R. at 18-19. The
ALJ noted that there have been no medical reports of this and nothing to indicate weight loss
commensurate with an inability to process any food. The Plaintiff was clear that this happens
every time she eats, even something as small as a cracker. R. at 19. In determining that this
claim was incredible, the ALJ therefore properly considered that the Plaintiff’s daily activities
and objective medical evidence were inconsistent with an inability to eat. Similarly, the ALJ
noted that her claimed loss of feeling in her arms and blackouts did not prevent her from driving,

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which seems inconsistent with the daily activities of a person whose arms go numb. R. at 42.
The ALJ noted that the Plaintiff’s pain was “aggravated by work activity that is more than
sedentary in exertional demands.” Id. If true, her claimed pain is not relevant to the finding that
she can perform sedentary work. The Government’s brief outlines the extent to which the
Plaintiff’s claimed pain is inconsistent with the views of her treating physician, Dr. Kiburz. Doc.
18 at 16-18. The Plaintiff’s testimony further shows that her pain is alleged when she showers
for longer than a few minutes, has to stand to cook, or vacuuming a room. R. at 21-22. While
sedentary work requires some standing and walking, the Court finds that the ALJ’s view that the
Plaintiff’s claimed pain did not relate to her ability to do sedentary work supported by substantial
evidence. Finally, the ALJ noted that the Plaintiff had failed to follow doctor’s advice to attempt
a weight loss and exercise regime. R. at 42. This is further indicative of her lack of credibility
under Pate-Fires.

For all of these reasons, the Court will defer to the ALJ’s credibility

determination which led him to exclude these nonexertional limitations from his RFC findings.
The ALJ properly used the Grids and determined that 201.25 directed a finding of not disabled
based on the Plaintiff’s ability to perform sedentary work, her status as a younger individual, her
education, and the transferability of her job skills. 20 C.F.R. pt. 404, subpt. P, App. 2, 201.25.
See Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003) (affirming use of the Grids when the
ALJ has discredited the claimant’s nonexertional claims).
Conclusion
The Appeals Council did not fail to consider material evidence and no remand is
required. The ALJ’s RFC and Step 5 findings are consistent with the law and supported by
substantial evidence. The Defendant’s decision is AFFIRMED.

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IT IS SO ORDERED
Dated: August 12, 2011

/s/ Greg Kays
GREG KAYS,
UNITED STATES DISTRICT JUDGE

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