Shewmake v. Berryhill

Filing 22

ORDER Affirming Decision of Commissioner of Social Security re 8 SOCIAL SECURITY COMPLAINT. Signed on 2/15/2019 by District Judge Roseann Ketchmark. (Stout, Courtney)

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

STEPHEN M. SHEWMAKE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.

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No. 3:18-05001-CV-RK

ORDER
Before the Court is Plaintiff’s appeal brought under 42 U.S.C. § 405(g) seeking review of
Defendant Social Security Administration’s (“SSA”) denial of disability benefits as rendered in a
decision by an Administrative Law Judge (“ALJ”). For the reasons below, the decision of the
ALJ is AFFIRMED.
Standard of Review
The Court’s review of the ALJ’s decision to deny disability benefits is limited to
determining if the decision “complies with the relevant legal requirements and is supported by
substantial evidence in the record as a whole.”

Halverson v. Astrue, 600 F.3d 922, 929

(8th Cir. 2010) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008)).

“Substantial

evidence is less than a preponderance of the evidence, but is ‘such relevant evidence as a
reasonable mind would find adequate to support the [ALJ’s] conclusion.’” Grable v. Colvin, 770
F.3d 1196, 1201 (8th Cir. 2014) (quoting Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)). In
determining whether existing evidence is substantial, the Court takes into account “evidence that
detracts from the [ALJ’s] decision as well as evidence that supports it.” Cline v. Colvin, 771
F.3d 1098, 1102 (8th Cir. 2014) (citation omitted). “If the ALJ’s decision is supported by
substantial evidence, [the Court] may not reverse even if substantial evidence would support the
opposite outcome or [the Court] would have decided differently.” Smith v. Colvin, 756 F.3d 621,
625 (8th Cir. 2014) (citing Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)). The Court does
not “re-weigh the evidence presented to the ALJ.” Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005) (citing Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003)). The Court must

“defer heavily to the findings and conclusions of the [ALJ].” Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir. 2010) (citation omitted).
Discussion
By way of overview, the ALJ determined that Plaintiff suffers from the following severe
impairments: degenerative disc disease of the lumbar spine with radiculopathy; moderate
obesity; history of gunshot wound in the right shoulder; mild osteoarthritis in the right shoulder
and right knee; and mild heart blockage. The ALJ also determined that Plaintiff has one nonsevere impairment - history of hypertension. However, the ALJ found that none of Plaintiff’s
impairments, whether considered alone or in combination, meet or medically equal the criteria of
one of the listed impairments in 20 CFR Pt. 404. Subpt. P, App. 1 (“Listing”). Additionally, the
ALJ found that despite his limitations, Plaintiff retained the residual functional capacity (“RFC”)
to perform light work with the following limitations: Plaintiff can lift and carry twenty pounds
occasionally and ten pounds frequently; stand, walk, and sit six hours in an eight-hour workday;
occasionally climb ramps and stairs and balance; never crawl, kneel, climb ladders, ramps, or
scaffolds; and cannot not work in temperature extremes. The ALJ also determined that Plaintiff
is able to perform his past relevant work as a construction contractor, DOT #182.167-010. The
ALJ determined that Plaintiff was not disabled, and that considering Plaintiff’s age, education,
work experience, and RFC, there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform.
Plaintiff brings the following arguments on appeal: (1) whether substantial evidence
supports the ALJ’s RFC determination; and (2) whether the ALJ appropriately evaluated
Plaintiff’s credibility and the credibility of a third party.
First, Plaintiff argues the ALJ improperly formulated Plaintiff’s RFC.

Specifically,

Plaintiff argues: (1) the RFC does not accurately reflect all of Plaintiff’s work-related limitations
because Plaintiff is unable to stand or walk six hours per workday, and (2) the MedicalVocational Grid Guidelines were not properly applied. First, the Court finds substantial medical
evidence exists in the record to support the ALJ’s RFC determination overall and as to Plaintiff’s
ability to stand or walk six hours per workday.1
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Next, Plaintiff argues the ALJ erred in

The record indicates that Plaintiff had normal cardiovascular exams in January, February, and
September 2016. Dr. Danushkodi, the consultative examiner, determined that Plaintiff had normal gait,
normal muscle tone and strength, normal range of motion in all extremities; a normal cardiovascular
exam; and tandem walking and heel toe walking were normal. Dr. Danushkodi also opined that Plaintiff

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formulating the RFC because the ALJ did not apply the Medical-Vocational Grid Guidelines
when making the disability determination. However, the ALJ was not required to apply these
guidelines because the ALJ determined that Plaintiff is able to perform past relevant work.
Crawford v. Colvin, 809 F.3d 404, 409 (8th Cir. 2015) (the Medical-Vocational Guidelines are
used only “where an individual with a severe medically determinable physical or mental
impairments(s) is not engaging in substantial gainful activity and the individual’s impairment(s)
prevents the performance of his or her vocationally relevant past work”) (quoting 20 C.F.R. 404,
Subpt. P, App. 2). Here, because the ALJ determined that Plaintiff is able to perform his past
relevant work as a construction contractor, Plaintiff is not disabled.

See 20 C.F.R.

§ 404.1520(a)(4)(iv) (“At the fourth step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your past relevant work, we [the Social
Security Administration] will find that you are not disabled.”).
Last, Plaintiff argues the ALJ improperly evaluated Plaintiff’s credibility. A “court will
not substitute its opinion for the ALJ’s, who is in the better position to gauge credibility and
resolve conflicts in the evidence.” Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007). When
evaluating Plaintiff’s subjective complaints, the ALJ “must give full consideration to all of the
evidence presented relating to subjective complaints . . . [including]: (1) the claimant’s daily
activities; (2) the duration, frequency and intensity of pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions.”
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Substantial evidence exists in the
record to support the ALJ’s credibility determination.2 See Andrews v. Colvin, 791 F.3d 923,
929 (8th Cir. 2015) (a plaintiff’s “subjective allegations of pain may be discounted by the ALJ if
the evidence as a whole is inconsistent with the claimant’s testimony”) (citation omitted). In

can lift twenty to twenty five pounds. Dr. Danushkodi did not place any limitations on sitting, walking,
or standing. A lumbar spine MRI performed in January 2016 indicated that Plaintiff had normal range of
motion and no neurological defects. A neurologist also determined that Plaintiff had normal strength in
all extremities and sensory function was intact. Plaintiff also reported a 50% improvement in the right leg
pain from epidural steroid injections. In April 2016, Plaintiff reported an 80% overall improvement after
a three-month period of medications and injections.
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The ALJ’s opinion cites Plaintiff’s failure to perform physical therapy as directed by his doctors
as a reason to discount Plaintiff’s credibility. Plaintiff’s briefing indicates that Plaintiff did not seek
physical therapy for fear it would cause more pain. The Court finds, even without considering Plaintiff’s
decision not to follow medical advice to perform physical therapy, substantial evidence exists in the
record to support the ALJ’s credibility determination.

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support of discounting Plaintiff’s credibility, the ALJ noted that Plaintiff’s treatment was
conservative in nature, and the conservative treatment improved Plaintiff’s symptoms.3 See
Moore v. Astrue, 572 F.3d 524, 525 (8th Cir. 2009) (an ALJ may consider a plaintiff’s limited
and conservative treatment in the credibility analysis). Second, the ALJ discounted Plaintiff’s
credibility because Plaintiff’s subjective complaints were inconsistent with the overall medical
record.4 See Bryant v. Colvin, 861 F.3d 779, 783 (8th Cir. 2017) (inconsistencies between a
plaintiff’s statements and other evidence may contradict the plaintiff’s subjective complaints);
Polaski, 739 F.3d at 1322 (an ALJ may consider the absence of objective medical evidence
supporting the plaintiff’s subjective complaints in the credibility analysis). Accordingly, there is
substantial evidence in the record to support the ALJ’s credibility determination. Plaintiff also
argues the ALJ failed to properly consider the testimony of Plaintiff’s wife at the hearing.
However, substantial evidence exists to support the ALJ’s decision to discount her testimony for
the same reasons Plaintiff’s testimony was discredited.
Conclusion
Having carefully reviewed the record before the Court and the parties’ submissions on
appeal, the Court concludes that substantial evidence on the record as a whole supports the ALJ’s
decision. Accordingly, the decision of the ALJ is AFFIRMED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: February 15, 2019

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Dr. Napier, who examined Plaintiff in 2014, recommended conservative treatment including
physical therapy and an evaluation for epidural spine injections. The conservative treatment Plaintiff
received improved his symptoms. For instance, in February 2016, Plaintiff reported a 50% improvement
in his right leg pain following an epidural steroid injection. Additionally, in December 2016, Plaintiff
reported his pain as minimal much of the time.
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Plaintiff testified that he was unable to work due to a herniated disk and right shoulder pain.
Plaintiff also testified that the side effects of his medication caused an inability to concentrate, short-term
memory problems, and tremors in his hands. However, the medical record shows that Plaintiff’s
cardiovascular exams were normal. The medical record also shows that, despite Plaintiff’s complaints of
hip, knee, and shoulder pain, he had a normal gait, normal muscle tone and strength, and normal range of
motion in all extremities. Despite Plaintiff’s statement that he was unable to stand or walk for more than
thirty minutes, Dr. Danushkodi did not recommend any limitations on sitting, standing, or walking. Next,
although Plaintiff complained of shoulder pain, Dr. Danushkodi opined that Plaintiff could lift twenty to
twenty-five pounds at a time.

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