Akin v. Astrue

Filing 21

ORDER entered by Judge Ortrie D. Smith. The Commissioner's decision is affirmed. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
JULIE R. AKIN,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 12-4156-CV-C-ODS

ORDER AND OPINION AFFIRMING
COMMISSIONER’S FINAL DECISION DENYING BENEFITS
Pending is Plaintiff's appeal of the Commissioner of Social Security=s final
decision denying her application for disability benefits. The Commissioner's decision is
affirmed.
I. BACKGROUND

Plaintiff was born in March 1981 and completed high school and some college.
She has prior work experience as a pharmacy technician, produce worker, cashier, deli
worker, and fast food worker. She applied for benefits under Title II and Title XVI,
alleging she became disabled on September 15, 2007, due to a combination of back
pain and depression. The arguments raised focus almost exclusively on her back
condition, and the Court’s opinion will as well.
Plaintiff injured her back in September 2007 while lifting a fifty-pound crate of
potatoes at work. R. at 448. An MRI showed herniation, disk protrusion and an annular
tear at L5-S1 and bulges at L3-L4 and L4-L5. R. at 289-90. Dr. John Spears at the
Missouri Spine Institute examined Plaintiff and noted Plaintiff ambulated and performed
other tests with no difficulty, and he diagnosed Plaintiff as suffering from degenerative
disk disease at L5-S1 and chronic axial back pain with no evidence of radiculopathy,
myelopathy, or “any compression on any neurologic structure in the central canal,

lateral recesses, or exiting foramen.” Dr. Spears further concluded Plaintiff suffered
from “uncomplicated back pain without a neurologic problem.” R. at 285-86. In
November 2007, Plaintiff underwent a breast reduction designed to alleviate pressure
on, and pain in, her back. R. at 300-01. Thereafter, she reported to the surgeon that
she could “already feel a relief in her back pain.” R. at 284.
In late March 2008, Plaintiff reported pain in her lower abdomen that radiated to
her lower back. On examination, she exhibited tenderness in the lower lumbar area
adjacent to her spinal column and a minimal decrease in her range of motion. R. at
316-17. Plaintiff’s back pain persisted, and on April 1 she was examined again, with
similar findings produced. R. at 312-13. An MRI performed the next day revealed a
bulge with moderate to severe narrowing at L5-S1 and slight bulges and narrowing at
L3-L4 and L4-L5. R. at 386. It does not appear that any particular treatment was
directed at this time, and subsequent visits to her doctor do not mention back problems,
although an x-ray taken in July 2008 was normal. R. at 382.
Approximately two weeks after this x-ray, Plaintiff slipped on her steps; this
resulted in back pain. She was x-rayed again, and again the x-ray was normal. She
was diagnosed as suffering from a lumbar strain and prescribed one Vicodin and one
Tylenol. R. at 377-78. Another MRI in October 2008 showed mild narrowing at L3-L4
and L4-L5 and a disk bulge with some protrusion and mild narrowing at L5-S1. R. at
372.
In February 2009, Plaintiff saw Dr. George Varghese. His report indicates
Plaintiff’s prior doctor (Doctor Noble) was not seeing Plaintiff any longer because he did
not take her insurance. Dr. Varghese further indicates Plaintiff had previously
undergone a series of steroid injections and a medial branch block over the last twelve
months. However, in addition to her back pain, Plaintiff stated she was experiencing
significant pain in her legs. Dr. Varghese indicated he would “follow through with Dr.
Noble’s plan and . . . perform a discogram and . . . get her set up for an
electromyography.” R. at 483-86. The discogram was performed on March 12 and
revealed the following:


At L3-L4: No significant degenerative changes or compression.



At L4-L5: Minimal degenerative changes and a small annular tear.
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

At L5-S1: Degenerative changes to the disk and compression of the nerve root.

R. at 478-79. Plaintiff returned to Dr. Varghese in April and expressed interest in
undergoing surgery, and to that end Plaintiff was referred to Dr. Craig Kuhns. Plaintiff
told Dr. Kuhns that 60% of her pain was in her back and 40% was in her legs, and
described a myriad of limitations that began worsening in March (although she also
stated she had suffered “incapacitating pain” since the incident in September 2007).
While Plaintiff’s gait was steady and she was able to heel/toe walk, she also exhibited a
decreased range of motion. Dr. Kuhns directed Plaintiff to lose some weight and return
in four months for a reassessment, explaining that “weight loss would help us with
surgery as a well as help her to have a better outcome.” R. at 448-53.
Plaintiff returned in August, by which time her body mass index (“BMI”) was still
“elevated” but had decreased from 42 to 38. Dr. Kuhns scheduled her for spinal fusion
at L5-S1. R. at 556-57. The surgery was successfully performed in early September.
In a follow-up appointment on October 8 – six weeks after the surgery – Plaintiff
reported that the leg pain was gone but she still experienced pain in her back. No
restrictions were imposed or suggested, and she was directed to return in four months.
R. at 540-41.
During the hearing, Plaintiff testified she tried a series of jobs after her alleged
onset date, but all of them involved standing as a regular part of the duties and it was
more than she could tolerate. R. at 33-35. She began going school full time at Metro
Business College starting in December 2007, but she found attending school full time,
working part time, and taking care of her kids too much to attend to. R. at 36-38. She
stopped going to school in December 2008 or January 2009. She testified breast
reduction surgery helped alleviate her back pain, but the pain returned before she
returned to school. R. at 44-45. The back surgery alleviated the pain in her legs but not
her back – but she also admitted she had been told the surgery was intended to
alleviate pain in her legs and not her back. R. at 45-46. Now, both walking and sitting
cause her pain: she cannot sit or walk for more than half an hour at a time or lift more
than twenty pounds. She has curtailed her church activities, is unable to perform
household chores, and must lie down to relieve pain at least three to four days per
week. R. at 48-51.
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The ALJ found Plaintiff could perform sedentary work with the additional
restrictions of being unable to climb a ladder, rope or scaffold, and only occasionally
climb ramps or stairs, stoop, kneel, crouch or crawl. He reached this conclusion after
recognizing Plaintiff suffered from a back condition and had back surgery in September
2009, but found her testimony about her limitations was not fully credible. In reaching
this latter finding, the ALJ noted the various medical testing indicating she demonstrated
a normal gait and normal strength, statements she made about her ability to care for her
three-year old child, the fact that Plaintiff was not receiving regular treatment, and the
fact that Plaintiff’s ability to attend college during a significant portion of the alleged
period of disability contradicted the very limitations she alleged to exist. R. at 19-21.
The ALJ found Plaintiff was unable to return to her past relevant work but, based on the
testimony of a vocational expert, found Plaintiff could perform other work that exists in
the national economy.

I. DISCUSSION

“[R]eview of the Secretary=s decision [is limited] to a determination whether the
decision is supported by substantial evidence on the record as a whole. Substantial
evidence is evidence which reasonable minds would accept as adequate to support the
Secretary=s conclusion. [The Court] will not reverse a decision simply because some
evidence may support the opposite conclusion.” Mitchell v. Shalala, 25 F.3d 712, 714
(8th Cir. 1994) (citations omitted). Though advantageous to the Commissioner, this
standard also requires that the Court consider evidence that fairly detracts from the final
decision. Forsythe v. Sullivan, 926 F.2d 774, 775 (8th Cir. 1991) (citing Hutsell v.
Sullivan, 892 F.2d 747, 749 (8th Cir. 1989)). Substantial evidence means “more than a
mere scintilla” of evidence; rather, it is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th
Cir. 2010).

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A.

Plaintiff first argues there was not substantial evidence in the Record as a whole
because no doctor offered opinions that matched the ALJ’s RFC findings. The flaw in
this argument is there is no requirement that a doctor offer opinions mirroring the ALJ’s
RFC findings. The ALJ found Plaintiff’s condition was largely unchanged from
September 2007 through the date of the hearing, and during that time period Plaintiff
spent slightly more than a year attending college as a full-time student. This finding
supports his conclusion Plaintiff could perform a wide range of sedentary work. In
addition, no doctor opined Plaintiff suffered from greater limitations than those the ALJ
found to exist. The absence of a doctor’s opinion that a claimant cannot perform
sedentary work is lends some support to the conclusion the claimant can perform
sedentary work. Moreover, the examining doctors found Plaintiff exhibited normal gait
and normal strength. The medical evidence, coupled with Plaintiff’s activities, provides
substantial evidence to support the ALJ’s RFC findings.

B.

Plaintiff next argues the ALJ failed to account for certain ailments. She first faults
the ALJ for failing to consider the diagnosis of obesity. However, obesity is not a
functional restriction. The combination of Plaintiff’s obesity and back problems
combined to result in a single RFC. Plaintiff essentially suggests the ALJ was required
to parse out the portions of the RFC that were attributed to her obesity and those
portions attributed to her back – but this is not required by law (and probably is not
possible in any event).
In a single sentence, Plaintiff also contends “the ALJ failed to include any
restrictions as a result of Plaintiff’s mental limitations, although the Plaintiff has been
hospitalized on several occasions and received mental health treatment” for a variety of
issues. Plaintiff’s Brief at 15. This lone sentence does not present anything for the
Court to review; it is insufficient for a Plaintiff to marshal the evidence in her favor and
simply say “this proves there was insufficient evidence to support the ALJ’s decision.”
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More specifically with respect to the present case, Plaintiff has not offered an argument
identifying any infirmities in the ALJ’s discussion of this issue. R. at 17-19.

III. CONCLUSION

For these reasons, the Commissioner’s final decision is affirmed.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: September 16, 2013

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