Phillips v. Colvin

Filing 12

ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION DENYING BENEFITS. Signed on 8/14/15 by District Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
LISA PHILLIPS,

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

Case No. 14-5145-CV-SW-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. STANDARD OF REVIEW

“[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).

II. BACKGROUND

Plaintiff was born in January 1957, completed the ninth grade, and has prior work
experience as a machine operator. She last worked on January 16, 2012, which is also
the date she alleges she became disabled due to a combination of affective disorder,
organic mental disorder, and anxiety disorder. Some of these ailments (or their extent)
are attributed to an episode of carbon monoxide poisoning she suffered in January
2009. The ALJ discussed the medical evidence in the Record, including records from
Plaintiff’s treating physicians. These records included (but were not limited to) those
from Dr. Ahmed Robbie (a neurologist) and Dr. Christopher Andrew. R. at 14-15. The
ALJ also considered the opinion of Steven Akeson, a non-examining, consulting
psychologist. Dr. Akeson opined that Plaintiff “retains the capacity to acquire and retain
simple instructions, and to sustain concentration and persistence with simple tasks.
[She] can adapt to changes in settings that do not require frequent public contact or
very close interactions with others in the workplace.” R. at 56. The ALJ accorded
“great weight” to Dr. Akeson’s assessment. R. at 15. Another state-agency consultant,
Dr. Aroon Suansilppongse, provided a similar assessment, R. at 310-12, but the ALJ did
not mention Dr. Suansilppongse’s opinion.
The ALJ’s finding regarding Plaintiff’s residual functional capacity (“RFC”) is a
matter for discussion and will be addressed below.

III. DISCUSSION

A.

Plaintiff first contends the ALJ erred in his assessment of the medical evidence.
In particular, Plaintiff contends that after finding Dr. Akeson’s opinion was entitled to
great weight the ALJ should have included in the RFC Dr. Akeson’s suggested
limitations on Plaintiff’s ability to interact with other people. This finding – and the
corresponding need to include the limitation – was further buttressed by Dr.
Suansilppongse’s opinion, which was to similar effect. The Court finds, however, that
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the ALJ included this limitation in the RFC; that is, the ALJ made the finding, but wrote it
erroneously. Nonetheless, the Record demonstrates the ALJ’s true intent.
In his written order, the ALJ wrote that Plaintiff could “perform a full range of work
at all exertional levels but with the following nonexertional limitations: simple, routine
and repetitive tasks and instructions; and no more than frequent contact with the
general public, co-workers or supervisors.” R. at 13 (emphasis supplied). Admittedly,
on its face, this wording suggests Plaintiff’s maximum level of contact with other people
is “frequent” – but read this way the limitation makes no sense because there is no
greater level of contact with other people than “frequent.” Thus, although a limitation of
some sort was clearly intended, the words employed admit of no limitation whatsoever.
This suggests that a scrivener’s error has appeared: either the ALJ meant to say
Plaintiff was limited to “less than frequent contact” with other people, or he meant to say
Plaintiff could have “no more than infrequent contact” with other people.
There is further evidence (1) demonstrating there is a mistake in the written
opinion and (2) confirming the ALJ’s true intent. The ALJ solicited testimony from a
vocational expert (“VE”) via written interrogatories. The VE was asked questions based
on an RFC that included the following limitation: “Claimant can adapt to changes in
settings that do not require frequent public contact or very close interactions with others
in the workplace.” R. at 227 (emphasis supplied). The VE responded that Plaintiff
could not perform her past work (because of other limitations in the RFC not at issue
here). The VE was then asked whether and to what extent the number of jobs were
diminished by the RFC propounded and the VE specified the percentage of jobs that
would be unavailable because of the limitation on “dealing with people.” R. at 228.
The VE then listed four jobs Plaintiff could perform and the numbers that would be
available given the RFC; the VE further specified that she had accounted for the erosion
in the job base necessitated by the limitation on contact with people. Id. The ALJ’s
opinion incorporated the jobs and the numbers set forth by the VE. R. at 17. This
sequence is significant for two reasons. First, the ALJ’s hypothetical – which included
the limitation Plaintiff argues should have been included – demonstrates the ALJ’s true
intent. Second, the VE specified the number of jobs available was based on inclusion of
this specific limitation – and the ALJ adopted these numbers in his opinion.
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For all of these reasons, the Court concludes the ALJ found Plaintiff could not
have frequent contact with supervisors, co-workers or the public, and simply made a
grammatical error or incorrect word choice. This resulted in a sentence that said the
opposite of what he meant – but the Record demonstrates what he meant.1 This is not
a sufficient basis for reversing the case because the ALJ’s intent – and true holding –
can be readily discerned. Cf. Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008) (“We
have held that an arguable deficiency in opinion-writing technique does not require us to
set aside an administrative finding when that deficiency had no bearing on the
outcome.” (quotations omitted)).2

B.

Plaintiff’s second argument is that the ALJ’s improperly evaluated her credibility.
The Court disagrees.
The familiar standard for analyzing a claimant=s subjective complaints in this
Circuit is set forth in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) (subsequent
history omitted):
While the claimant has the burden of proving that the
disability results from a medically determinable physical or
mental impairment, direct medical evidence of the cause and
effect relationship between the impairment and the degree of
claimant=s subjective complaints need not be produced. The
adjudicator may not disregard a claimant=s subjective
complaints solely because the objective medical evidence
does not fully support them.
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At the third step of the five-step sequential process the ALJ found Plaintiff “has
some difficulty interacting independently, appropriately, effectively, and on a sustained
basis with other individuals,” R. at 12, further supporting the Court’s conclusion
regarding the ALJ’s true views on the matter.
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Either as part of this analysis, or as a separate evaluation of the harmlessness
of the supposed error, the Court makes the following observation: even if the ALJ
should have included this limitation in the written opinion, a reversal and remand for that
purpose would accomplish nothing. The VE already provided testimony based on the
RFC Plaintiff contends should exist, and has already indicated that a person with that
RFC can perform work in the national economy.
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The absence of an objective medical basis which supports
the degree of severity of subjective complaints alleged is just
one factor to be considered in evaluating the credibility of the
testimony and complaints. The adjudicator must give full
consideration to all of the evidence presented relating to
subjective complaints, including the claimant=s prior work
record, and observations by third parties and treating and
examining physicians relating to such matters as:
1. The claimant=s daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of
medication;
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant=s
subjective complaints solely on the basis of personal
observations. Subjective complaints may be discounted if
there are inconsistencies in the evidence as a whole.
739 F.2d at 1322. While the Eighth Circuit has declared that the Apreferred practice@ is
to cite Polaski, the Court of Appeals has also found it sufficient if the ALJ cites the
appropriate regulations (which incorporate the same factors as Polaski). See Schultz v.
Astrue, 479 F.3d 979, 983 (8th Cir. 2007). Here, the ALJ acknowledged the appropriate
regulation which incorporates the Polaski factors. R. at 13-14. The ALJ concluded
Plaintiff’s testimony about her limitations and abilities was not fully credible for a variety
of reasons, including: (1) Plaintiff’s Function Report, which listed her daily activities, (2)
objective medical evidence did not support the limitations she described, (3) the
opinions of the medical consultants, (4) the effectiveness of treatment, and (5) Plaintiff’s
rejection of recommended therapy. R. at 15-16.
Plaintiff argues the ALJ’s assessment of the medical evidence is incorrect
because there was “objective evidence indicating damage to her brain, possibly from
the carbon monoxide poisoning.” Plaintiff’s Brief at 18. It is true this evidence existed:
in fact, the ALJ acknowledged this evidence. R. at 15. However, the existence of
evidence of brain damage does not compel a conclusion contrary to the ALJ’s because
the evidence (including the opinions of Plaintiff’s treating doctors) suggests the brain
damage was too slight to cause the effects Plaintiff alleges. R. at 15. For instance, in
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February 2012, Dr. Robbie opined that Plaintiff had “[s]mall vessel disease of the brain,
possibly due to prior carbon monoxide poisoning. She now has subtle residual memory
problems; this seems to be very mild and she is compensating very well.” In that same
report, Dr. Robbie “[a]dvised the patient to continue working, not to quit; it is good for
her physically and mentally. She may need to find a different job if the work she is
doing now is very demanding.” R. at 238. Also, in May 2012, Dr. Andrew wrote that
Plaintiff “has subjective memory loss. She does fairly well on examination today.
Certainly she had a significant episode with her carbon monoxide poisoning. This can
cause damage to the basal ganglia and result in movement disorders, however none of
those are present.” R. at 297 (emphasis supplied). Thus, the ALJ was well aware of
the fact that Plaintiff had brain damage as a result of carbon monoxide poisoning, but
this fact is not automatically disabling. More importantly, this fact does not automatically
compel a conclusion that Plaintiff’s subjective description of her limitations were correct,
particularly when there was evidence suggesting that the brain damage would not
account for such symptoms. These are but two examples of medical evidence cited by
the ALJ that suggests there is no medical basis for the limitations Plaintiff described;
there is no need to detail them all because these two are enough to address Plaintiff’s
contention that no such evidence existed.
Plaintiff also contends the ALJ improperly relied on her daily activities. In
summary, she contends the ability to perform daily activities is irrelevant to the inquiry.
The breadth of this argument is dispelled by observing that the ability to engage in daily
activities is the very first Polaski factor. When evaluating a claimant’s daily activities,
the ALJ must consider the nature and quality of those activities and the claimant’s ability
to engage in those activities over a period of time. E.g., Wagner v. Astrue, 499 F.3d
842, 851 (8th Cir. 2007). Plaintiff has assembled decisions in which, under the facts of
the cases at issue, the daily activities in question did not necessarily contradict the
limitations alleged or did not suggest an ability to engage in substantial gainful activity,
and in that sense Plaintiff’s authorities are too case-specific to dictate a particular result
here. Moreover, these cases do not state a universal rule that the ability to engage in
daily activities is completely unimportant to the inquiry.

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The ALJ found that Plaintiff could “care for her pet, care for her grandchildren for
short periods of time, perform household chores and laundry, perform personal care,
and bathing, prepare meals, shop in stores, handle her finances, watch television and
movies, perform yard work, go[ ] out to eat and see movies and attend ball games.” R.
at 16. While these activities are unremarkable and do not definitively suggest an ability
to work, these activities are extremely probative in this case because they stand in
contrast to Plaintiff’s claims that she is “tired all the time,” has memory problems, cannot
take care of her finances, has more bad days than good days, and on bad days cannot
leave her house. R. at 14. As the ALJ said, “[t]he issue of credibility in this case cannot
be discussed analytically in absolute terms, but must be measured by degree.” Id. The
ALJ did not wholly reject Plaintiff’s testimony, but engaged in the difficult task of
ascertaining “how bad” or (as the ALJ put it) the degree to which the problems Plaintiff
alleged actually limited her abilities. This is a factual determination, and the ALJ’s
determination in this case is supported by substantial evidence.
In addition to observing that the ALJ did not find Plaintiff wholly unworthy of
belief, it is worth noting that the ALJ did not rest his determination solely on her daily
activities. As previously noted, the ALJ also considered the medical evidence. In
addition, the ALJ discussed the positive effects of medication and treatment and
Plaintiff’s unwillingness to undergo therapy. R. at 15. Having considered the Record as
a whole, the Court concludes there is substantial evidence to support the ALJ’s
credibility determination and his assessment of Plaintiff’s RFC.

IV. CONCLUSION

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: August 14, 2015

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