Webb v. Colvin

Filing 21

ORDER that the decision of the Commissioner is hereby AFFIRMED. Signed on 3/1/2016 by District Judge M. Douglas Harpool. (Hance, Breanna)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
MONEKA ROCHELLE WEBB,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Defendant.

Case No. 2:14-cv-04283-MDH

ORDER
Before the Court is Plaintiff’s appeal of the Commissioner’s denial of her application for
Supplemental Security Income (SSI) under Title XVI of the Social Security Act (“Act”), 42
U.S.C. §§ 1381 et seq., and Social Security Disability Insurance (SSDI) benefits under Title II of
the Social Security Act (“Act”), 42 U.S.C. §§ 401 et seq. Plaintiff has exhausted her
administrative remedies and the matter is now ripe for judicial review. After carefully reviewing
the files and records, the Court finds the decision of the Commissioner is supported by
substantial evidence in the record as a whole and the decision is therefore AFFIRMED.
BACKGROUND
The procedural history, facts, and issues of this case are contained in the record and the
parties’ briefs, so they are not repeated here. To summarize, this case involves a 34-year old
woman who applied for SSI and SSDI benefits due to alleged impairments of ulcer,
fibromyalgia, anemia, vitamin D deficiency, sciatic nerve, sinus/allergies, heart condition, acid
reflux, memory loss, muscle weakness, involuntary spasms, blood pressure, rheumatic fever,
abnormal masses in breasts, and abnormal uterus. The ALJ found that Plaintiff suffered from
severe impairments including degenerative joint disease of the left shoulder and left hip,
fibromyalgia, and iron deficiency anemia. After finding Plaintiff’s impairments did not meet or
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equal a listed impairment, the ALJ determined that Plaintiff retained the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.97(b)
with the following limitations:
[S]he can lift and/or carry 20 pounds frequently; stand and/or walk 6 hours out of
an 8-hour workday; sit for 8 hours out of an 8-hour workday; and push and pull to
the same weight restrictions. She can frequently reach overhead with her left
(non-dominant) upper extremity. The claimant can occasionally climb ramps and
stairs, but should avoid climbing ladders, ropes, or scaffolds. She can
occasionally crawl. The claimant can frequently balance, stoop, kneel, and
crouch. She can tolerate occasional exposure to humidity, wetness, dust, odors,
fumes, pulmonary irritants, and extreme cold.
The ALJ determined Plaintiff could perform her past relevant work as a daycare worker, medical
records clerk, and order filler. Alternatively, the ALJ found that Plaintiff could perform other
jobs that exist in significant numbers in the national economy such as officer helper, subassembler, and marker. Based on the foregoing, the ALJ concluded that Plaintiff was not
disabled.
STANDARD
Judicial review of the Commissioner’s decision is a limited inquiry into whether
substantial evidence supports the findings of the Commissioner and whether the correct legal
standards were applied. See 42 U.S.C. §§ 405(g), 1383(c)(1)(B)(ii)(3). Substantial evidence is
less than a preponderance of the evidence and requires enough evidence to allow a reasonable
person to find adequate support for the Commissioner’s conclusion. Richardson v. Perales, 402
U.S. 389, 401 (1971); Freeman v. Apfel, 208 F.3d 687, 690 (8th Cir. 2000). This standard
requires a court to consider both the evidence that supports the Commissioner’s decision and the
evidence that detracts from it. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). That the
reviewing court would come to a different conclusion is not a sufficient basis for reversal. Wiese
v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009). Rather, “[i]f, after review, we find it possible to
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draw two inconsistent positions from the evidence and one of those positions represents the
Commissioner’s findings, we must affirm the denial of benefits.” Id. (quoting Mapes v. Chater,
82 F.3d 259, 262 (8th Cir. 1996)). Courts “defer heavily to the findings and conclusions of the
Social Security Administration” and will disturb the Commissioner’s decision only if it falls
outside the “zone of choice.” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Casey v.
Astrue, 503 F.3d 687, 691 (8th Cir. 2007).
DISCUSSION
Plaintiff argues on appeal that: (1) the ALJ erred by giving substantial weight to the
medical opinion of non-treating, non-examining physician Dr. Winkler, (2) the RFC is not
supported by substantial evidence in the record as a whole, and (3) the ALJ erred by failing to
order a second psychological assessment. After a full review of the records and briefs, the Court
finds the RFC was within the available “zone of choice” and substantial evidence in the record as
a whole supports the Commissioner’s findings.
First, the ALJ did not err by granting substantial weight to the medical opinion of Dr.
Winkler, a non-treating and non-examining physician who opined on Plaintiff’s physical
functional abilities. Dr. Winkler was the only medical source to provide an opinion regarding
Plaintiff’s physical functional capacity.1 Although Dr. Freidebach, Plaintiff’s treating physician,
submitted a medical source statement, Dr. Freidebach declined to provide any suggested
workplace limitations and, instead, deferred such assessment to a specialist. The ALJ found Dr.

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The Court notes it is the claimant’s burden to establish RFC and only once the claimant establishes her inability to
do past relevant work the burden of proof shifts to the Commissioner at Step Five. See generally Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Here, Plaintiff neither provided nor requested a medical opinion
regarding her workplace limitations. Following the hearing, the ALJ requested a consultative opinion from a
licensed rheumatologist in order to more fully develop the record and provide medical evidence regarding Plaintiff’s
workplace limitations. The ALJ gave Plaintiff the opportunity to respond to the consult’s MSS with additional facts,
records, questions, and/or a supplemental hearing; however, the Plaintiff did not respond to the ALJ’s proffer. Here,
as noted in Steed v. Astrue, “it is [the claimant’s] burden to prove at step four that she cannot perform her past
relevant work” and “the claimant's failure to provide medical evidence with this information should not be held
against the ALJ when there is medical evidence that supports the ALJ's decision.” 524 F.3d 872, 876 (8th Cir. 2008).

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Winkler’s opinion was entitled to “substantial weight” because it was based upon a thorough
review of the evidence, was informed by Dr. Winkler’s expertise in treating fibromyalgia, and
was well-supported by the medical evidence in the record.2 The Court finds the ALJ considered
the appropriate factors and the Court cannot say the ALJ erred in giving substantial weight to the
sole, uncontradicted medical opinion in the record regarding Plaintiff’s physical functional
abilities.

See generally 20 C.F.R. § 404.1527(c) (citing supportability, consistency, and

specialization as factors to consider in evaluating medical opinions).
Second, the Court finds the RFC assessment is within the available “zone of choice.”
The ALJ based the RFC upon the suggested limitations cited by Dr. Winkler, the ALJ’s review
of the medical and other evidence of record, and the Plaintiff’s credible testimony.3 The ALJ
ultimately found “the evidence . . . does not support the claimant’s allegations of debilitating
pain and functional limitations.”4 With regard to Plaintiff’s fibromyalgia, the ALJ noted Plaintiff
was diagnosed with fibromyalgia but refused prescription medications offered to treat her

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Plaintiff’s arguments that Dr. Winkler’s opinion is entitled to limited weight because Dr. Winkler’s qualifications
are unclear from the record, because the record does not show what specific documents were given to Dr. Winkler,
because Dr. Winkler did not complete a thorough review of the medical evidence, and because Dr. Winkler failed to
furnish sufficient information to comply with 20 C.F.R. § 404.1519p are rejected. Plaintiff could have raised these
issues to the ALJ, proffered additional evidence, and/or requested a supplemental hearing to rebut or discount the
limitations cited by Dr. Winkler but did not. Moreover, the Court has no reason to doubt that Dr. Winkler is, in fact,
a rheumatologist or that Dr. Winkler received the entire medical file available to that point. In fact, Dr. Winkler
cited exhibits 3F, 4F, 8F, 10F, 11F, 13F, 15F, and 16F, which indicates the files were available to her and she
completed a thorough review of such documents. Additionally, as noted supra at note 1, it was Plaintiff’s burden to
present evidence to show she unable to perform her past relevant work and “the claimant's failure to provide medical
evidence with this information should not be held against the ALJ when there is medical evidence that supports the
ALJ's decision.” 524 F.3d 872, 876 (8th Cir. 2008).
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The Court notes that “the ALJ is not required to rely entirely on a particular physician’s opinion or choose between
the opinions [of] any of the claimant’s physicians” in rendering RFC. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir.
2011); Cox v. Astrue, 495 F.3d 614, 619-20 (8th Cir. 2007). Moreover, although it has been held, as argued by
Plaintiff, that the opinion of a non-examining, non-treating physician cannot provide substantial medical evidence in
the record as a whole sufficient to support an RFC, see Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000), this case
was decided at Step Four, rather than Step Five, such that Nevland is considered “inapposite.” See Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004).

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The Court notes that Plaintiff does not attack the ALJ’s credibility finding.

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symptoms in lieu of over-the-counter pain relievers such as ibuprofen. As to Plaintiff’s hip pain,
the ALJ noted diagnostic imaging showed a small osteophyte formation resulting in
femoroacetabular impingement on Plaintiff’s left hip; however, the ALJ noted that, despite the
impingement, Plaintiff’s gait is normal and clinical examinations have found no neurovascular
deficits. With regard to Plaintiff’s left shoulder, the ALJ highlighted the MRI performed in
September of 2011, which showed effusion and a notched appearance suspicious for nondisplaced labral tear, but the ALJ noted Plaintiff’s treatment with cortisone injections has been
effective and has resulted in significant improvement, as evidenced by her post-treatment clinical
examination. Finally, the ALJ discussed Plaintiff’s history of iron deficiency anemia secondary
to uterine bleeding and noted that iron supplements result in “significant” improvement to
Plaintiff’s hemoglobin levels. The above findings are consistent with the degree of physical
limitation contained in the RFC and as suggested in Dr. Winkler’s opinion and Dr. Schwartz’s
treatment notes.

The Court finds, after a review of the entire record including Plaintiff’s

extensive medical file and her allegations regarding limitations, that the RFC is within the
available zone of choice and does not warrant reversal.5
Finally, Plaintiff argues the ALJ should have ordered an additional psychological
consultation based on the statement in Dr. Winkler’s assessment that Plaintiff “would benefit,
however, from a psych assessment” because “[s]he appears to have an overconcern for her
health.” The Court notes there is limited, if any, evidence in the file suggesting Plaintiff is
unable to perform the functions of her prior work based on a mental impairment. It is Plaintiff’s

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The Court has considered Plaintiff’s argument that her non-compliance with medication was due to dysphagia or
inability to swallow pills. The Court rejects that argument. Although Plaintiff complained at certain times that she
had difficulty swallowing pills and foods, at other times she stated she simply does not like taking medications, she
failed to pick them up from the store, or she was not taking them regularly without explanation. The record further
shows Plaintiff had endoscopy procedures in 2011 and 2012 that allegedly helped her to swallow, she had a normal
pharyngoesophagram in 2012, and she had a normal rehabilitation swallow study in 2012.

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burden to present such evidence and the ALJ did not err in finding Plaintiff failed to present
sufficient evidence at either Step Two or Step Four to show Plaintiff suffers from a mental
condition that limits her ability to work. See generally 20 C.F.R. § 404.1520b; Kamann v.
Colvin, 721 F.3d 945, 950 (8th Cir. 2013) (“an ALJ is permitted to issue a decision without
obtaining additional medical evidence so long as other evidence in the record provides a
sufficient basis for the ALJ's decision”).
CONCLUSION
In sum, the Court finds the Commissioner’s decision is supported by substantial evidence
in the record as a whole. The Commissioner’s denial of benefits is hereby AFFIRMED.
IT IS SO ORDERED.
Dated: March 1, 2016

/s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE

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