Burns v. Colvin

Filing 9

ORDER that the decision of the Commissioner is AFFIRMED. Signed on 9/29/14 by Magistrate Judge John T. Maughmer. (Alexander, Pam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
PATRICIA K. BURNS,

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

Case No. 13-00612-CV-W-JTM

ORDER
On October 26, 2009, plaintiff Patricia K. Burns (“Burns”) filed an application seeking
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.
After the application was denied at the state agency level, Burns sought further administrative
review. To that end, on June 10, 2010, an administrative law judge 1 (“the ALJ”) conducted a
hearing regarding Burns’ disability claim. Thereafter, the ALJ issued a written decision finding
that Burns was not “disabled” under Title II of the Social Security Act. Subsequently, the
Appeals Council for the Social Security Administration denied Burns’ request for further
administrative review rendering the ALJ’s decision the “final decision” of defendant Carolyn W.
Colvin, Acting Commissioner of the Social Security Administration (“the Commissioner”).
Inasmuch as Burns has exhausted her administrative remedies, the final decision of the
Commissioner is subject to limited judicial review by this Court. 42 U.S.C. § 405(g).
Specifically, this Court reviews the Commissioner’s decision only insofar as to determine
whether the decision is supported by substantial evidence on the record as a whole. Finch v.
Astrue, 547 F.3d 933, 935 (8th Cir. 2008). Substantial evidence is less than a preponderance, but
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The Honorable George M. Bock.

enough that a reasonable mind might accept as adequate to support the Commissioner’s
conclusion. Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008). Thus, evidence that both
supports and detracts from the Commissioner’s decision will be considered by the Court, but the
Commissioner’s decision is not subject to reversal simply because some evidence may support
the opposite conclusion. Finch, 547 F.3d at 935. Instead, the Court will disturb the
Commissioner’s decision only if it falls outside the available “zone of choice” and a decision is
not outside that zone of choice simply because the Court may have reached a different
conclusion had the Court been the fact finder in the first instance. Buckner v. Astrue, 646 F.3d
549, 556 (8th Cir. 2011). See also McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010) (if
substantial evidence supports the Commissioner’s decision, a reviewing court “may not reverse,
even if inconsistent conclusions may be drawn from the evidence, and [the court] may have
reached a different outcome”). The Eighth Circuit has repeatedly held that courts should “defer
heavily to the findings and conclusions” of the Social Security Administration. See, e.g., Hurd v.
Astrue, 621 F.3d 734, 738 (8th Cir. 2010). With those guidelines in mind, the Court affirms the
Commissioner’s decision.
In his written decision, the ALJ concluded that Burns had severe impairments of
fibromyalgia and mild degenerative joint disease of the lumbar spine. However, the ALJ further
found that Burns – notwithstanding her impairments – retained the functional capacity to
perform sedentary work as defined in 20 C.F.R. § 404.1567(a), except that Burns could not crawl
or climb ladders, ropes, or scaffolds. Based on this residual functional capacity, the ALJ
determined that Burns was capable of performing her prior relevant work as a mortgage clerk. In
the alternative, the ALJ – based on the testimony of a vocational expert – found that Burns was

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capable of performing other work existing in sufficient numbers in the national economy,
including jobs such as order clerk, document preparer, lens inserter, and appointment clerk.
Burns argues that substantial evidence does not support the Commissioner’s final
decision in that: (1) the ALJ did not consider the problems that Burns experiences in her hands
and wrists; (2) the Appeals Cuncil failed to account for a June 2012 lumbar MRI, (3) the ALJ
failed to present the vocational expert with a proper hypothetical question, and (4) the ALJ failed
to properly weigh the testimony of Burns and her daughter regarding Burns’ complaints of pain.
With regard to Burns’ allegation of problems with her hands and wrists, the ALJ
specifically noted that Burns complained of rheumatoid arthritis, but added that the record
presented by Burns did not establish the condition as a medically determinable impairment.
Ultimately, it was Burns’ burden to establish disability and the record does not establish
rheumatoid arthritis as an impairment. In February of 2010, Burns was referred to Mid-America
Rheumatology Consultants. After examination and testing, Perri A. Ginder, M.D., diagnosed
Burns with fibromyalgia, not rheumatoid arthritis. The ALJ included fibromyalgia as a severe
impairment and accounted for the impairment in limiting Burns to sedentary work with
additional limitations. Moreover, even if the ALJ should have added rheumatoid arthritis as a
severe impairment, Burns has failed to establish any reversible error in that there is no showing
that the limitations on Burn’s functioning would be greater than those imposed by the ALJ based
on the diagnosed fibromyalgia.
According to Burns, the Commissioner’s final decision is defective because it does not
consider “the findings of a lumbar MRI performed on [Burns’] spine [in] June 2012 that showed
she had bulging discs at levels L2-L3, L3, L4, L4-L5 and a tiny central protrusion with
superimposed annular tear [at] L4-S1.” The ALJ’s decision was issued on November 30, 2011.

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Thereafter Burns sought review with the Appeal Council and, to that end, requested the Appeals
Council to extend her time to submit additional medical evidence. On February 15, 2013, the
Appeals Council informed Burns and her attorney that the extension of time would be granted
for 25 days during which Burns could submit “more evidence.” Burns submitted no new
evidence and, on April 16, 2013, the Appeals Council declined to review the ALJ’s decision.
Consequently, the June 2012 MRI was not presented to the Social Security Administration and is
not found in the record to be reviewed by the Court. An administrative agency should not be
charged with an error for failing to consider evidence that was never presented to the agency.
With regard to the hypothetical questions presented to the vocational expert, the Court
finds that the ALJ limited the question to a person of Burns’ age, education and work
background and included those limitations found credible by the ALJ. Substantial evidence in
the record supports those limitations and, as such, the hypothetical questions posed by the ALJ
proper. As a consequence, the answers of the vocational expert constitute substantial evidence
that Burns is not disabled under Title II of the Social Security Act.
Finally, with regard to the ALJ’s credibility analysis, the Court finds that it comports with
requirements of Social Security regulations and Eighth Circuit precedent. The ALJ
acknowledged the testimony of Burns and her daughter but concluded that it was not fully
credible based on the objective medical evidence, Burns’ limited treatment, and Burns’
exaggeration of her impairments in comparison with her admitted daily activities.
Based on the foregoing, the decision of the Commissioner is AFFIRMED.

/s/ John T. Maughmer

John T. Maughmer
United States Magistrate Judge
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