Bergthold v. Colvin

Filing 15

ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION DENYING BENEFITS. Signed on 3/1/16 by District Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
WILLIAM A. BERGTHOLD,

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

Case No. 15-4084-CV-W-ODS

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

INTRODUCTION

Plaintiff was born in 1971, completed some high school, and has past work
experience as a cook, stage crew member, gas station attendant, cashier, and a press
worker. The ALJ determined Plaintiff’s severe impairments include “disorder of the neck
and back; obesity; irritable bowel syndrome; and depression.” R. at 20. The ALJ found
Plaintiff has the residual functional capacity (“RFC”) to:
Perform light work…except that…the claimant is limited to never climbing
ladders, occasional climbing of ramps and stairs; occasional stooping, crouching,
kneeling, and crawling. In addition, the claimant must avoid all use of hazardous
machinery and no exposure to unprotected heights. The claimant is further
limited to only simple..., routine, and repetitive tasks with no strict production
quota…
R. at 23. Based on the testimony of a vocational expert, the ALJ determined Plaintiff
could perform work as a cashier, information clerk, and ticket taker. R. at 31.
II.

LEGAL STANDARD

“[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 when 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).
III.

DISCUSSION
A.

Plaintiff alleges Dr. Yacob Gawo (“Gawo”), a state agency medical consultant,
formed his opinion without the benefit of subsequently created medical records. While it
is true that Gawo did not have the benefit of subsequently created medical records, this
does not undermine the consultant’s opinion regarding Plaintiff’s condition on the day
the opinion was rendered. Plaintiff does not provide, and the Court is not aware of, any
legal authority which holds a consultant’s medical opinion must be based on
subsequently created medical records, or that the consultant’s opinion necessarily must
be discounted because it is not based on those records. Thus, the Court discerns no
error on this point.
More importantly, the additional records do not deprive the ALJ’s decision of the
support required by law. On October 17, 2012, Plaintiff asserted he had no back pain,
and on February 5, 2013, he asserted his neck pain was moderate and had not
worsened. R. at 725, 737. Further, Plaintiff had several medical appointments in 2013
at which he did not complain about back or neck pain. See e.g., R. at 846. Additionally,
Plaintiff’s gastrointestinal issues did not worsen after Gawo rendered his opinion. For
example, in November 2012 and July 2013, Plaintiff did not complain about constipation
or diarrhea. R. at 731, 846. Overall, the substantial evidence of record supports the
ALJ’s decision, and it cannot be said to fall outside the “available zone of choice.”
Casey v. Astrue, 503 F.3d 687, 694 (8th Cir. 2007) (internal citations and quotations

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omitted).
Plaintiff also argues that because Gawo is a non-examining physician, reliance
on his opinion does not constitute substantial evidence. However, Plaintiff’s
characterization is not complete. It is true that “the record must include some medical
evidence that supports the ALJ’s residual functional capacity finding.” Dykes v. Apfel,
223 F.3d 865, 866-67 (8th Cir. 2000). But “in evaluating a claimant’s RFC, an ALJ is
not limited to considering medical evidence exclusively.” Cox v. Astrue, 495 F.3d 614,
619 (8th Cir. 2007). Rather, “the Commissioner must determine a claimant’s RFC
based on all the relevant evidence including the medical records, observations of
treating physicians and others, and an individual’s own description of his limitations.”
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). Here, the ALJ did not rely only on
Gawo’s opinion in formulating Plaintiff’s RFC. To the contrary, the ALJ relied on
Plaintiff’s daily activities and on other medical evidence. This evidence was sufficient to
support the ALJ’s determination regarding Plaintiff’s functional limitations.
B.
Plaintiff asserts the ALJ did not properly consider the medical opinion Dr. Russell
M. Newton (“Newton”), a consultative physician. Plaintiff appears to argue the ALJ
should have incorporated more of Newton’s functional limitations for Plaintiff into the
RFC. However, in determining the RFC, “the ALJ is not required to rely entirely on a
particular physician’s opinion.” Martise v. Astrue, 641F.3d 909, 926-27 (8th Cir. 2011)
(citations and quotations omitted). Instead, as previously, discussed, the ALJ
determines Plaintiff’s “RFC based on all relevant evidence, including medical records,
observations of treating physicians and others, and claimant’s own description of his
limitations.” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2011). Furthermore,
the ALJ noted that the Record established Plaintiff’s functional limitations were less
limited than Newton suggested. For example, the ALJ noted Plaintiff’s daily activities
such as visiting with friends, living with his father, interacting with physicians, and
partaking in the hearing without difficulty were inconsistent with Newton’s opinion. The
Court concludes it was proper for the ALJ not to adopt Newton’s opinion in whole.

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C.
Plaintiff notes he submitted new medical evidence to the Appeals Council which
was not part of the Record when the ALJ rendered her decision: (1) opinion evidence
rendered by Mark W. Schmitz (“Schmitz”), and (2) opinion evidence rendered by Dr.
Matthew Bechtold (“Bechtold”). On March 19, 2015, the Appeals Council considered
this new evidence in affirming the ALJ’s decision. R. at 4, 5. “If…the Appeals Council
considers the new evidence but declines to review the case, we review the ALJ’s
decision and determine whether there is substantial evidence in the administrative
record, which now includes the new evidence, to support the ALJ’s decision.” Nelson v.
Sullivan, 966 F.2d 363, 366 (8th Cir. 1992) (citations omitted).
Plaintiff appears to argue remand is required because the Appeals Council did
not provide an analysis of Schmitz’s and Bechtold’s opinions. However, the Appeals
Council is not required to comment on the newly submitted evidence in denying a
request for review of the ALJ’s decision. Meyer v. Astrue, 662 F.3d 700, 706 (4th Cir.
2011). If the Appeals Council denies review, “nothing in the Social Security Act or
regulations promulgated pursuant to it requires that the Appeals Council explain its
rationale for denying review.” Id. Rather, “the Appeals Council can simply deny the
request for review.” Id. Thus, the Court discerns no error in the decision of the Appeals
Council.
1. Mark Schmitz
Schmitz’s opinion was rendered on August 14, 2013, and the Administrative
Hearing in this case was held on October 16, 2013. R. at 41, 853. Plaintiff offers no
explanation as to why this opinion was not submitted into the evidentiary record prior to
the hearing.
Nonetheless, to the extent Schmitz asserted Plaintiff has “a mental disability
which would likely interfere with his ability to successfully maintain employment,” this
opinion is not entitled to deference because opinions that Plaintiff is disabled or unable
to work are opinions on the ultimate issue of disability and reserved for the
Commissioner. House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007). Schmitz’s opinion
also was made in the context of determining his eligibility for Medicaid. R. at 853.
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“[W]hether an applicant meets Social Security eligibility requirements is an inquiry that is
different from a state’s Medicaid eligibility requirements.” Ryan v. Astrue, No. 10-3193,
2011 WL 2460933, at *20 (W.D. Mo. June 17, 2011).
Furthermore, Schmitz’s opinion should be discounted for a variety of other
reasons. First, much of the opinion appears to be based on Plaintiff’s self-reports,
which the ALJ found to be not credible. Second, Schmitz’s opinions regarding Plaintiff’s
poor concentration and memory are belied by Plaintiff’s daily activities. Finally,
Schmitz’s opinions and observations are inconsistent with the medical evidence of
record. For example, Plaintiff was often oriented to time, place, person, and situation,
and demonstrated appropriate mood and affect. R. at 735, 831. Plaintiff was reported
as not forgetful and does not experience memory loss, normal attention span and
concentration. R. at 749. Plaintiff also responded well to medication for his mental
health. R. at 742. Thus, the Court finds substantial evidence exists in the Record,
including this new evidence, to support the ALJ’s decision.
2. Dr. Matthew Bechtold
Newly-submitted evidence must relate “to the time period for which benefits are
sought, and…not concern later-acquired disabilities or subsequent deterioration of a
previously non-disabling condition.” Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir.
1997). Newly submitted evidence becomes part of the Record, but it is to be evaluated
only to the extent that it relates to the period addressed by the ALJ’s decision. Rozzel
v. Colvin, No. 13-1054, 2014 WL 5394970, at *1 (W.D. Mo. Oct. 22, 2014). Here,
Bechtold completed a form describing Plaintiff’s alleged symptoms and functional
limitations. One of the questions on the form was, “What is the earliest date that the
described symptoms and limitations apply?” R. at 861. Bechtold responded, “Today.”
Id. Bechtold completed this form on March 14, 2014, the ALJ conducted the
administrative hearing on October 16, 2013, and the ALJ rendered his decision on
January 30, 2014. R. at 31. By answering, “Today,” Bechtold is stating that the
symptoms and limitations he describes are not applicable to the time period addressed
by the ALJ’s decision.

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Next, Bechtold’s opinion is inconsistent with the medical evidence in the Record.
Bechtold opines Plaintiff would have to take frequent restroom breaks and miss up to
three days of work per month due to his irritable bowel syndrome. R. at 860-61. The
medical evidence, however, suggests Plaintiff’s gastrointestinal issues often improved
or stabilized with medication. On many occasions, Plaintiff did not complain about
these issues at all. R. at 551, 572, 731, 817, 818, 846.
Finally, while Bechtold’s opinion is not in checklist form, the Court notes that his
opinion provides little to no explanation regarding the proscribed functional limitations.
Additionally, Bechtold’s opinion cites to almost no specific medical evidence supporting
his conclusions. For this additional reason, the Court finds Bechtold’s opinion has
limited evidentiary value. Anderson v. Astrue, 696 F. 3d 790, 794 (8th Cir. 2012).
For these reasons, the Court finds substantial evidence exists in the Record,
including this new evidence, to support the ALJ’s decision.
D.
The Court’s review of the Commissioner of Social Security’s decision is limited to
“the pleadings and transcript of the record.” 42 U.S.C. § 405(g). The Court may…order
additional evidence to be taken before the Commissioner of Social Security, but 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.”
Id. “Good cause does not exist when the claimant had the opportunity to obtain new
evidence before the administrative record closed but failed to do so without providing
sufficient explanation.” Hepp v. Astrue, 511 F.3d 798, 808 (8th Cir. 2008).
Here, Plaintiff asserts “[n]o mention was made of the Steve Evans evaluation.”
But Plaintiff also states the Evans evaluation was not included in the Administrative
Record. Doc. #13, page 7. The Court’s review of the Record confirms this fact.
Plaintiff, quite simply, has failed to establish good cause for failing to submit the Steve
Evans evaluation before the Administrative Record closed, much less discuss good
cause or make an argument as to why it exists. Thus, the Court will not remand the
case on this basis. Whitman v. Colvin, 762 F.3d 701, 708 (8th Cir. 2014); Hepp, 511
F.3d at 808.

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E.
In assessing Plaintiff’s credibility, the critical issue is not whether Plaintiff has
functional limitations, but rather the extent of his functional limitations. House v.
Shalala, 34 F.3d 691, 694 (8th Cir. 1994). The familiar standard for analyzing
claimant’s subjective complaints is set forth in Polaski v. Heckler. 739 F.2d 1320 (8th
Cir. 1984).
The Court finds the Record provides substantial evidence to support the ALJ’s
determination that Plaintiff’s testimony was not credible. In making this determination,
the ALJ referenced several factors. First, the ALJ found Plaintiff’s activities were
inconsistent with his alleged functional limitations. For example, Plaintiff needed no
special reminders need to take care of personal needs, grooming, or taking medicine.
R. at 219. Plaintiff prepared meals, did laundry and dishes, and took care of his pets.
R. at 218-19. He shopped and drove on his own. R. at 220. He also read and played
computer games frequently. R. at 221. These activities do not appear to be consistent
with the inability to perform substantial gainful activity. Ford v. Astrue, 518 F.3d 979,
982-83 (8th Cir. 2008).
Additionally, the ALJ discounted Plaintiff’s credibility because of his poor
earnings history. R. at 165. Plaintiff’s poor earnings history is a factor the ALJ may
consider in assessing Plaintiff’s credibility. Pearsall v. Massanari, 274 F.3d 1211, 1218
(8th Cir. 2001). Finally, the ALJ discounted Plaintiff’s credibility because one of the
reasons he left his job due to a lack of transportation. R. at 47-48. Plaintiff leaving work
for reasons other than his medical condition is relevant to the ALJ’s credibility finding.
Medhaug v. Astrue, 578 F.3d 805, 816-17 (8th Cir. 2009).
The task of weighing credibility factors falls on the ALJ, not the District Court.
E.g., Finch v. Astrue, 547 F.3d 933, 936 (8th Cir. 2008). The ALJ provided good
reasons for discounting Plaintiff’s credibility that are consistent with Polaski.
Accordingly, the ALJ’s decision is entitled to deference. E.g., Renstrom v. Astrue, 680
F.3d 1057, 1067 (8th Cir. 2012).

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IV.

CONCLUSION

The Commissioner’s final decision denying benefits is affirmed.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: March 1, 2016

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