Shelton v. Astrue
Filing
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ORDER - plaintiff's claim, as stated in her brief 16 is DENIED. The decision of the ALJ is AFFIRMED. Signed on 2/28/12 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)
THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JOEY SHELTON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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) No. 10-1256-CV-W-FJG-SSA
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ORDER
This is a proceeding under Title II of the Social Security Act, 42 U.S.C. §§ 401 et
seq. and Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq., in which plaintiff
requested review of the Commissioner’s decision denying his application for disability
benefits. Plaintiff’s claims were denied initially. On April 22, 2010, an administrative law
judge (ALJ) rendered a decision finding plaintiff was not under a “disability,” as defined in
the Act. On November 15, 2010, the Appeals Council of the Social Security Administration
denied plaintiff’s request for review. Thus, the ALJ’s decision stands as the final decision
of the Commissioner.
Plaintiff’s appeal is before the Court on plaintiff’s motion for
judgment. The facts and arguments are presented in the parties’ briefs and will not be
repeated here.
Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides for judicial
review of a “final decision” of the Commissioner of the Social Security Administration under
Title II. Section 1631(c)(3) of the Act, 42 U.S.C. § 1383(c)(3), provides for judicial review
to the same extent as the Commissioner’s final determination under section 205. Judicial
review of the Commissioner’s final decision under 42 U.S.C. § 405(g) is limited to whether
there exists substantial evidence in the record as a whole to support the decision of the
Commissioner. Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995). This determination
requires review of the entire record, including both evidence in support of, and in opposition
to, the Commissioner’s decision. Fountain v. Railroad Retirement Bd., 88 F.3d 528, 530
(8th Cir. 1996). The Court’s role, however, is not to re-weigh the evidence or try the issues
de novo. Craig v. Chater, 943 F. Supp. 1184, 1188 (W.D. Mo. 1996) (citing McClees v.
Shalala, 2 F.3d 301, 302 (8th Cir. 1994)). When supported by substantial evidence, the
Commissioner’s findings are conclusive and must be affirmed. Richardson v. Perales, 402
U.S. 389, 401 (1971).
Substantial evidence is more that a mere scintilla but less than preponderance. It
means such evidence that a reasonable mind would accept as adequate to support a
conclusion. Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997), citations omitted. The
substantial evidence standard, however, presupposes a zone of choice within which the
decision makers can go either way, without interference by the courts. Clarke v. Bowen,
843 F.2d 271, 272-73 (8th Cir. 1988). “[A]n administration decision is not subject to reversal
merely because substantial evidence would have supported an opposite decision.” Id.
Hence, “if it is possible to draw two inconsistent positions from the evidence and one of
those positions represents the agency’s finding, we must affirm the decision.” Roe v.
Chater, 92 F.3d 672, 672 (8th Cir. 1996) (quoting Robinson v. Sullivan, 956 F.2d 836, 838
(8th Cir. 1992)).
An individual claiming disability benefits has the burden of proving he or she is
unable to return to the type of work in which he or she was formerly engaged due to a
medically determinable physical or mental impairment that has lasted or can be expected
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to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d) (1) (A).
If the claimant succeeds, the burden of production shifts to the commissioner to establish
that plaintiff can perform some other type of substantial gainful activity in the national
economy. See Young v. Apfel, 221 F.3d 1065, 1069, n. 5 (8th Cir. 2000); see also, 68 Fed.
Reg. 51,153 - 51,163 (August 26, 2003); 20 C.F.R. § 404.1560(c)(2).
The Court has reviewed the parties’ briefs and the record. As a result of that review,
the Court agrees with the arguments in the Commissioner’s brief and finds that the record
as a whole reflects substantial evidence to support the ALJ’s decision. In particular,
although plaintiff argues that the ALJ gave improper weight to a non-medical source (S.
Eric Underwood, a state DDS counselor), any error committed by the ALJ is harmless in
that the ALJ’s conclusion about plaintiff’s residual functional capacity was more restrictive
than the one proposed by Mr. Underwood, and none of plaintiff’s treating physicians
provided an opinion that plaintiff had any substantial restrictions on his physical activities.
Compare Dewey v. Astrue, 509 F.3d 447, 449-50 (8th Cir. 2007) (finding that where
plaintiff’s treating physician had a more restrictive opinion than that of the state DDS
counselor, the matter must be remanded for rehearing as the court could not determine that
the ALJ would inevitably have reached the same result if he understood that the RFC had
not been completed by a medical expert). The Court agrees with the Commissioner that
this error is a deficiency in opinion-writing that “is not a sufficient reason for setting aside
an administrative finding where the deficiency had no practical effect on the outcome of the
case.” Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999).
Furthermore, although the ALJ should have discussed the state of Missouri’s
decision granting plaintiff’s Missouri HealthNet benefits (Tr. 176-77), the Court concurs with
the Commissioner that the ALJ’s failure to do so did not change the outcome of this case.
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See Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008). Accordingly, for all the reasons
stated in the Commissioner’s brief (Doc. No. 19), it is
ORDERED that plaintiff’s claim, as stated in her brief (Doc. No. 16) is DENIED. The
decision of the ALJ is AFFIRMED.
/S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge
Dated: February 28, 2012
Kansas City, Missouri
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