Anderson v. Astrue

Filing 16

ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 9/30/13 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JENNY E. ANDERSON,

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

Case No.
12-0992-CV-W-REL-SSA

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Jenny Anderson seeks review of the final decision
of the Commissioner of Social Security denying plaintiff’s
application for disability benefits under Title
Security Act (“the Act”).

II of the Social

Plaintiff argues that the ALJ erred in

(1) failing to identify the weight given to the medical opinion
evidence of record, (2) in failing to consider all of the
evidence including third party observations and information, (3)
failing to consider all of the medical evidence, (4) failing to
properly consider plaintiff’s obesity, (5) failing to link the
RFC determination to substantial evidence of record, and (6)
failing to apply the Medical-Vocational Guidelines properly.

I

find that the substantial evidence in the record as a whole
supports the ALJ’s finding that plaintiff’s is not disabled.
Therefore, plaintiff’s motion for summary judgment will be denied
and the decision of the Commissioner will be affirmed.

I.

BACKGROUND
On May 21, 2009, plaintiff applied for disability benefits

alleging that she had been disabled since September 11, 2007.
Plaintiff’s disability stems from post concussion head syndrome,
fibromyalgia, headaches, anxiety and dizziness.
application was denied on August 21, 2009.

Plaintiff’s

On August 18, 2010, a

hearing was held before an Administrative Law Judge.

On October

14, 2010, the ALJ found that plaintiff was not under a
“disability” as defined in the Act.

On June 5, 2012, after

considering additional evidence, the Appeals Council denied
plaintiff’s request for review.

Therefore, the decision of the

ALJ stands as the final decision of the Commissioner.
II.

STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for

judicial review of a “final decision” of the Commissioner.

The

standard for judicial review by the federal district court is
whether the decision of the Commissioner was supported by
substantial evidence.

42 U.S.C. § 405(g); Richardson v. Perales,

402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847,
850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th
Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir.
1996).

The determination of whether the Commissioner’s decision

is supported by substantial evidence requires review of the

2

entire record, considering the evidence in support of and in
opposition to the Commissioner’s decision.

Universal Camera

Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876
F.2d 666, 669 (8th Cir. 1989).

“The Court must also take into

consideration the weight of the evidence in the record and apply
a balancing test to evidence which is contradictory.”

Wilcutts

v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v.
Securities & Exchange Commission, 450 U.S. 91, 99 (1981)).
Substantial evidence means “more than a mere scintilla.

It

means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”

Richardson v. Perales, 402

U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th
Cir. 1991).

However, the substantial evidence standard

presupposes a zone of choice within which the decision makers can
go either way, without interference by the courts.

“[A]n

administrative decision is not subject to reversal merely because
substantial evidence would have supported an opposite decision.”
Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of
proving he is unable to return to past relevant work by reason of
a medically-determinable physical or mental impairment which has
lasted or can be expected to last for a continuous period of not

3

less than twelve months.

42 U.S.C. § 423(d)(1)(A).

If the

plaintiff establishes that he is unable to return to past
relevant work because of the disability, the burden of persuasion
shifts to the Commissioner to establish that there is some other
type of substantial gainful activity in the national economy that
the plaintiff can perform.

Nevland v. Apfel, 204 F.3d 853, 857

(8th Cir. 2000); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo.
2000).
The Social Security Administration has promulgated detailed
regulations setting out a sequential evaluation process to
determine whether a claimant is disabled.
codified at 20 C.F.R. §§ 404.1501, et seq.

These regulations are
The five-step

sequential evaluation process used by the Commissioner is
outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1.
Is the claimant performing substantial gainful
activity?
Yes = not disabled.
No = go to next step.
2.
Does the claimant have a severe impairment or a
combination of impairments which significantly limits his ability
to do basic work activities?
No = not disabled.
Yes = go to next step.
3.
Does the impairment meet or equal a listed impairment
in Appendix 1?
Yes = disabled.
No = go to next step.
4

4.
Does the impairment prevent the claimant from doing
past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5.
Does the impairment prevent the claimant from doing any
other work?
Yes = disabled.
No = not disabled.
IV.

THE RECORD
Plaintiff summarized the voluminous record in her brief.

I

have carefully studied plaintiff’s summarization as well as the
actual medical records, administrative records, and transcript of
the administrative hearing, I will not repeat all of that in this
order.

Defendant agreed with plaintiff’s recitation of the

evidence for the period between plaintiff’s alleged onset date
and the date of the ALJ’s decision.
Plaintiff argues that the defendant’s statement that the
evidence submitted to the Appeals Council is not relevant is in
error.

If the Appeals Council grants review, its decision

(absent a remand to the ALJ) becomes the Commissioner’s final
agency action that is subject to judicial review.

Here, on the

other hand, the Appeals Council considered the new evidence
submitted by plaintiff and then denied review.

The district

court’s statutory jurisdiction is confined to review of the final
decision of the Commission.

42 U.S.C. § 405(g).
5

Therefore, I

may only review the ALJ’s final decision, not the Appeals
Council’s non-final administrative decision to deny review.
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).

Where,

as here, the Appeals Council considers new evidence but denies
review, the court must determine whether the ALJ’s decision was
supported by substantial evidence on the record as a whole,
including the new evidence.
(8th Cir. 2013);

McDade v. Astrue, 720 F.3d 994, 1000

Wright v. Astrue, 489 Fed. Appx. 147 (8th

Cir.2012), citing Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir.
2007).
The regulations provide that the Appeals Council must
evaluate the entire record, including any new and material
evidence that relates to the period before the date of the
ALJ’s decision. See 20 C.F.R. § 404.970(b). The newly
submitted evidence thus becomes part of the “administrative
record,” even though the evidence was not originally
included in the ALJ’s record. See Nelson v. Sullivan, 966
F.2d 363, 366 (8th Cir. 1992). If the Appeals Council finds
that the ALJ’s actions, findings, or conclusions are
contrary to the weight of the evidence, including the new
evidence, it will review the case. See 20 C.F.R. §
404.970(b). Here, the Appeals Council denied review, finding
that the new evidence was either not material or did not
detract from the ALJ’s conclusion. In these circumstances,
we do not evaluate the Appeals Council’s decision to deny
review, but rather we determine whether the record as a
whole, including the new evidence, supports the ALJ’s
determination. See Nelson, 966 F.2d at 366.
Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000).
V.

FINDINGS OF THE ALJ
Administrative Law Judge George Bock entered his opinion on

October 14, 2010 (Tr. at 10-17).

Plaintiff’s last insured date
6

is December 31, 2013 (Tr. at 12).
Step one.

Plaintiff has not engaged in substantial gainful

activity since her alleged onset date (Tr. at 12).

Plaintiff

worked after her alleged onset date, but her earnings in 2008
($6,875.64) did not amount to substantial gainful activity (Tr.
at 12).
Step two.

Plaintiff’s severe impairments consist of weight

disproportionate to height, mild positional vertigo, status post
closed head injury with some residual mild to moderate memory
impairment, and fibromyalgia with positive control points (Tr. at
12).

Plaintiff’s history of concussion, essential hypertension,

and mild depression are not severe impairments (Tr. at 12).
Step three.

Plaintiff’s impairments do not meet or equal a

listed impairment (Tr. at 12-13).
Step four.

Plaintiff retains the residual functional

capacity to perform light work except she cannot work at
unprotected heights or around hazards and she requires repetitive
1- to 3-step instructions with no detailed instructions and no
public contact (Tr. at 13-16).

Plaintiff is unable to perform

her past relevant work as a freight broker or properly manager
because those are skilled jobs (Tr. at 16).

7

Step five.

Plaintiff is capable of working as a marker, a

housekeeper, or a clerk, all of which are available in
significant numbers (Tr. at 16-17).
VI.

ANALYSIS
Plaintiff argues that the ALJ erred in failing to identify

the weight given to the opinion of Dr. Edd Bucklew, Dr. Cedric
Fortune, and Dr. Joseph Allan; in failing to consider the thirdparty observations of plaintiff’s husband and friend; in failing
to explain how he reached his conclusion regarding plaintiff’s
mental residual functional capacity; in failing to assign
limitations based on plaintiff’s obesity; in failing to link his
RFC determination to the specific evidence upon which he relied;
in failing to order a consultative exam; and in failing to
include non-severe impairments in the RFC.
J. Edd Bucklew, Ph.D., did not examine or treat plaintiff
but provided a Psychiatric Review Technique finding that
plaintiff had only mild limitations (Tr. at 277-287).

He based

his opinion on the fact that plaintiff’s exam in August 2009
reveals that she was able to drive, handle a checkbook, do her
activities of daily living, remember and understand instructions,
interact socially and adapt to her environment.

She was tested

with neuropsycological batteries twice since her alleged onset
date and those resulted in findings of average intelligence, some

8

variability across memory domains, mildly limited attention, and
findings “generally not consistent with deterioration that would
be expected to occur secondary to HI [head injury].”
Cedric Fortune, M.D., examined plaintiff on August 8, 2009,
and noted that she had consumed alcohol and then slipped in a
bathtub at a resort (Tr. at 267-274).

She alleged a brief loss

of consciousness and said she went to the hospital two days later
where she had an MRI and CAT scan, both of which were normal.
“She is able to do her ADL’s [activities of daily living] with no
problem.”

Plaintiff was able to drive.

She gave an example of

her memory loss -- she was unable to remember what she had for
dinner the night before.

However, Dr. Fortune observed that

plaintiff’s husband was also unable to remember what he had for
dinner the night before.

Plaintiff expressed anger about the

slip and fall incident “which does involve some litigation.”
Plaintiff’s associated headaches occur three times a day and last
2 to 15 minutes.

Plaintiff does not take any medication for

them, she just lets them “work out.”

Though plaintiff complained

of dizziness when she closes her eyes, she is able to drive a car
and uses no assistive device.

Plaintiff continued to smoke and

consume alcohol.
Dr. Fortune performed tests and noted that although
plaintiff “did tend to fall to the right with a Romberg test and

9

also tended to fall to the back, . . . the results were somewhat
inconsistent. . . .

Speech initially was sometimes hesitant at

times, but when she was distracted it was sustained and
understandable and hearing was normal.”
normal and comfortable.

Plaintiff’s gait was

Stance was normal.

She had no trouble

squatting or getting up from a sitting position.

Fine motor

ability was normal.
Plaintiff complained of pain in the trigger points, but “she
also complained of pain in the control areas of the forehead,
both deltoids and both anterior quad muscle groups, which cause
the trigger points to be not significant.”
Dr. Fortune stated that plaintiff could understand and
remember reasonable instructions, have reasonable sustained
concentration and persistence in tasks, would be able to interact
socially and adapt to her environment “despite the comment of her
avoiding social contacts.”
Plaintiff’s treating physician, Dr. Allan, consistently
refused to provide opinions with regard to plaintiff’s condition
as far as her lawsuit was concerned and her disability case until
a few days before her administrative hearing.

On July 21, 2010,

Dr. Allan wrote a letter to plaintiff’s disability lawyer.

Dr.

Allan discussed plaintiff’s fall and resulting condition in terms
of what he had been told:

“I do believe she was hospitalized . .

10

. with a concussion and postconcussive syndrome . . . problems
with expressing herself and speech, perhaps some dysarthria,
dizziness, nausea, disbalance, severe headaches and even some
tenderness temporal area.”

He noted that after he began

following plaintiff for this condition, her mental status exam
showed “no thought disorder.”
“somewhat depressed.”

He mentioned only that she seemed

He specifically noted that he had not

received or reviewed any of the records from plaintiff’s
neurologist.
He stated that “the patient was noting” that she had
continued problems with concentration, vertigo, decreased memory,
and additional symptoms including trouble with simple math,
inability to make change, difficulty staying on track with an
activity.

Dr. Allan noted that plaintiff had depressive episodes

surrounding some family issues in 2003 for which she was started
on an antidepressant.

“This condition has improved on this

treatment. . . . [and] the patient’s mood did continue to be
considered quite satisfactory.”
The only observations or treatment in this letter relate to
plaintiff’s situational depression which was improved and quite
satisfactory.

Everything else is based on plaintiff’s subjective

statements, and Dr. Allan made this very clear.

His statement in

conclusion that “it would appear that the patient would be unable

11

to work on a full-time basis” is very obviously based on
plaintiff’s statements and not on Dr. Allan’s treatment of her.
His letter was expressly so limited, and on its face it does not
even purport to be supported by his own treatment of her but by
her statements that, if true, would result in the conclusion that
she is unable to work.
Plaintiff takes issue with the ALJ’s statement that “no
physician or psychologist of record has provided an opinion that
the claimant is disabled on the basis of any impairment or any
combination of impairments.”

Yet this is true.

Dr. Allan’s

conclusion is not based on any impairments, it is based on
plaintiff’s subjective statements regarding her limitations which
Dr. Allan made clear in his letter.

His statement that plaintiff

is unable to work is an opinion reserved to the Commissioner, Dr.
Allan did not set forth any functional limitations, and he
clearly stated that he was repeating plaintiff’s reports of what
occurred in the hospital and with her neurologist.

He did not

pretend to have observed or assessed any of the limitations
discussed with the exception of mild and improved depression.
Although plaintiff complains that the ALJ did not impose any
physical limitations as a result of plaintiff’s obesity,
plaintiff herself does not even suggest what limitations she
experiences due to her weight.

She merely suggests that the case

12

be remanded to the ALJ so that he can find some limitations.
Plaintiff argues that the ALJ should have considered her
non-severe impairments of headaches, chronic fatigue, asthma,
COPD, SVT, and atrial fibrillation.

However, the record shows

that in January of 2010 plaintiff’s neurologist prescribed
Topamax for plaintiff’s headaches which were noted two months
later to be 80% improved.

Her neurologist performed a mental

status exam and found that it was within normal limits, as were
plaintiff’s gait and station.

Plaintiff’s asthma and COPD are,

according to the medical records, caused and exacerbated by
plaintiff’s continued smoking against medical advice.
Plaintiff’s SVT and atrial fibrillation do not impact her
functional capabilities.
Plaintiff merely recites the evidence supporting these
conditions and jumps to the conclusion that “had the ALJ
precluded bending, stooping, and crouching, the VE testified that
none of the jobs identified would be available to Plaintiff.”
However, plaintiff has failed to indicate how any of these
conditions affect her ability to bend, stoop or crouch; and had
these non-severe impairments impacted those abilities in a morethan-minimal way, the ALJ would not have found that they were
non-severe impairments.

Notably plaintiff does not argue that

the ALJ erred at step two in finding that these are not severe

13

impairments.
I have considered plaintiff’s other arguments in light of
the entire record, and I find them to be without merit.
VIII. CONCLUSIONS
Based on all of the above, I find that the substantial
evidence in the record as a whole supports the ALJ’s finding that
plaintiff is not disabled.

Therefore, it is

ORDERED that plaintiff’s motion for summary judgment is
denied.

It is further

ORDERED that the decision of the Commissioner is affirmed.

ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
September 30, 2013

14