Pecina v. Astrue

Filing 16

ORDER, re 3 SOCIAL SECURITY COMPLAINT filed by Sinuhe Pecina, affirming decision of Commissioner. Signed on 11/20/2012 by Magistrate Judge Matt J. Whitworth. (Bode, Kay)

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

SINUHE PECINA,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,
Defendant.

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No. 11-1160-SSA-CV-W-MJW

ORDER
Plaintiff Sinuhe Pecina seeks judicial review,1 of a final administrative decision denying
him disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and
Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381 et seq. Section 205(g) of the 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 and 42 U.S.C. § 1383(c)(3) provide for judicial review to the
same extent as the Commissioner’s final determination under section 205.
The parties’ briefs are fully submitted, and an oral argument was held on November 15,
2012. The complete facts and arguments are presented in the parties’ briefs and will not be
repeated here.
Standard of Review
The Eighth Circuit has set forth the standard for the federal courts’ judicial review of
denial of benefits, as follows:
Our role on review is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Substantial evidence is less than a
preponderance, but is enough that a reasonable mind would find it adequate to support
the Commissioner’s conclusion. In determining whether existing evidence is substantial,
we consider evidence that detracts from the Commissioner’s decision as well as evidence
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With the consent of the parties, this case was assigned to the United States Magistrate
Judge, pursuant to the provisions of 28 U.S.C. § 636(c).

that supports it. As long as substantial evidence in the record supports the
Commissioner’s decision, we may not reverse it because substantial evidence exists in
the record that would have supported a contrary outcome or because we would have
decided the case differently.
Baker v. Barnhart, 457 F.3d 882, 892 (8th Cir. 2006).
The claimant has the initial burden of establishing the existence of a disability as defined
by 42 U.S.C. § 423(d)(1). See Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). To meet the
statutory definition, "the claimant must show (1) that he has a medically determinable physical or
mental impairment which will either last for at least twelve months or result in death, (2) that he
is unable to engage in any substantial gainful activity, and (3) that this inability is the result of
his impairment." McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir. 1983).
When reviewing the record to determine if there is substantial evidence to support the
administrative decision, the court considers the educational background, work history and
present age of the claimant; subjective complaints of pain or other impairments; claimant’s
description of physical activities and capabilities; the medical opinions given by treating and
examining physicians; the corroboration by third parties of claimant’s impairments; and the
testimony of vocational experts when based upon proper hypothetical questions that fairly set
forth the claimant’s impairments. McMillian, 697 F.2d at 221.
Discussion
Plaintiff was born in 1966 and was 36 years old on May 1, 2002, his alleged onset of
disability date. Plaintiff alleges disability due to depression, anxiety, agoraphobia, panic attacks
and back problems.
An Administrative Law Judge (ALJ) considered plaintiff’s claims and concluded his
allegations of disabling symptoms were not credible based on the medical evidence, lack of
treatment sought for his back, activities of daily living and medical opinion evidence. The ALJ
determined plaintiff had the residual functional capacity (RFC) to perform light work but with
limitations for his mental impairments. Specifically, the ALJ limited plaintiff to work which
required only understanding simple instructions and maintaining persistence and concentration
on simple tasks. The ALJ noted that plaintiff could adapt to a work environment.
Plaintiff alleges the ALJ erred in determining plaintiff’s RFC and in finding that his
allegations of disabling symptoms were not fully credible. The Commissioner argues that the
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medical evidence, specifically the opinions of Alan R. Israel, Ph.D., and Neal Anson, M.D.,
support the ALJ’s finding that plaintiff was capable of light work activity. The Commissioner
argues that based on the testimony of the vocational expert, the ALJ properly determined that
plaintiff could perform other work that exists in the national economy.
Upon review, this Court finds there is substantial evidence to support the ALJ’s RFC and
determination that plaintiff was not disabled as defined by the Social Security Act. The ALJ did
not err in the weight given to the medical opinions of record, or in the credibility determination
of the plaintiff.
Credibility
There is substantial evidence to support the ALJ’s credibility determination. The ALJ
gave valid reasons for discounting plaintiff’s credibility. See Earnheart v. Astrue, 2012 WL
3205570 *1 (8th Cir. 2012) (where valid reasons for discrediting claimant’s subjective complaints
were given, court defers to ALJ’s credibility findings).
Weight Given to Opinion of Dr. Israel
The ALJ’s great weight given to the MSR of Dr. Israel, a consulting psychiatrist, was not
error. Dr. Israel was a psychiatrist who evaluated plaintiff upon recommended referral by Dr.
Anson. Plaintiff’s argument that Dr. Anson’s opinion is contrary to the opinion of Dr. Israel is
simply contrary to the evidence. Dr. Anson, an M.D., assessed plaintiff’s physical impairments,
and simply stated within his report a concern regarding plaintiff’s mental condition and
suggested referral to a mental health specialist for evaluation. This mere statement of Dr. Anson
is not contrary to the opinion of Dr. Israel, the subsequent mental health specialist to whom
plaintiff was referred.
Plaintiff’s argument that Dr. Israel’s report of January 2010 is too dated for consideration
because it is based on an examination of plaintiff in 2009 is clearly without merit. Plaintiff’s
alleged onset of disability is May 2002; therefore, a 2009 examination is material to a
determination regarding his mental impairments from 2002 until the date of the ALJ’s decision
in 2011.
Plaintiff’s argument that Dr. Israel’s opinion should not be given great weight because
Israel didn’t have access to medical records created after 2009 is without merit. There is no
evidence to show that Dr. Israel would have a different opinion if he reviewed records which
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were created subsequent to his evaluation of plaintiff. Plaintiff can point to no records which
would change the opinion of Dr. Israel.
Finally, the Court notes there are no medical opinions which contradict the opinion of
either Dr. Israel or Dr. Anson.
Conclusion
Plaintiff has failed to meet his burden in this case. Vossen v. Astrue, 612 F.3d 1011,
1016 (8th Cir. 2010) (“[T]he burden of persuasion to prove disability and demonstrate RFC
remains on the claimant.”). Based on the medical opinions in this case, and the medical
evidence, including records reflecting plaintiff’s symptoms are stabilized with medication, and
the record as a whole, this Court finds there is substantial evidence in the record to support the
decision of the ALJ.
IT IS, THEREFORE, ORDERED that the decision of the Commissioner is affirmed.
Dated this 20th day of November, 2012, at Jefferson City, Missouri.

/s/

Matt J. Whitworth

MATT J. WHITWORTH
United States Magistrate Judge

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