McKay v. Colvin
ORDER affirming the Commissioner of Social Security's decision denying benefits. Signed by Judge Nanette Laughrey on 11/24/14. (Hatting, Elizabeth)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
RONALD EUGENE MCKAY, JR.,
CAROLYN W. COLVIN,
of Social Security,
Case No. 4:13-CV-01206-NKL
Plaintiff Ronald Eugene McKay, Jr., seeks review of the Administrative Law
Judge’s decision denying his application for Social Security Disability Insurance (SSDI)
benefits. For the following reasons, the decision of the Administrative Law Judge (ALJ)
McKay filed an application for SSDI benefits on January 25, 2011, alleging an
onset date of October 27, 1995. [Tr. 124]. McKay’s date of last insured was June 30,
2000. [Tr. 60].
The record contains ambiguous evidence suggesting that this was
McKay’s second application for SSDI benefits, his first application for benefits having
been made in 1995 or 1996. [Tr. 127]. McKay notes that “[t]he 1996 application
apparently allowed a closed period of disability that ran to April 1997 but that cannot be
affirmatively stated one way or another as the record is incomplete.” [Doc. 9, p. 2].
McKay’s 2011 application for SSDI benefits requests benefits due to ongoing
health problems arising from injuries sustained due to a sixteen foot fall McKay suffered
in 1995. McKay’s claims that he suffers from ongoing medical conditions including:
head and neck injury with LeForte II fracture treated with closed reduction and arch bar
stabilization; headaches from treatment; distal comminuted right radius fracture treated
with open reduction and internal fixation, external fixation and release of the carpal
tunnel, with chronic right wrist pain with expected degenerative changes of the right wrist
and loss of motion; injury to his left upper extremity that is permanent in nature, a severe
comminuted fracture of the radial head at the elbow which was treated with resection,
injury to the distal radial ulnar joint which had been treated surgically with ulnar
shortening and arthroplasty; severe acetabular fracture with posterior dislocation of the
left hip with total hip arthroplasty; and medical chronic low back pain. [Tr. 446-49].
Upon review of the record, the ALJ found that McKay suffered from the following
severe impairments through the date of last insured: status post total left hip arthroplasty,
status post reduction and pinning of the left wrist, status post open reduction and internal
fixation of the right radius, status post right carpal tunnel release, and obesity. [Tr. 14].
In light of McKay’s severe impairments, the ALJ noted that McKay had the
Residual Functional Capacity (RFC):
[T]o perform sedentary work as defined in 20 CFR 404.1567(a)
involving lifting and/or carrying 20 occasionally and 10 pounds
frequently; standing and/or walking two hours in an eight-hour
workday; and sitting six hours in an eight-hour workday. He must
be able to alternate between sitting and standing at least every 30
minutes. He could occasionally climb ramps or stairs, but never use
ladders, ropes or scaffolds or balance, kneel crouch or crawl. He can
occasionally stoop but he must avoid overhead reaching and avoid
exposure to extreme cold. The claimant could frequently finger and
[Tr. 15]. To determine McKay’s RFC, the ALJ reviewed McKay’s medical records from
the time immediately following his fall, as well as the medical records through 2000 that
addressed McKay’s treatment and improvement from his injuries. [Tr. 15-22]. She also
considered McKay’s testimony at the administrative hearing.
The ALJ then
concluded based upon the evidence and vocational expert testimony that jobs existed in
significant numbers in the national economy that McKay could perform, including work
as a document preparer, weight tester, and order clerk/food beverage. [Tr. 22-23]. The
ALJ subsequently denied McKay’s request for SSDI benefits. Id.
Standard of Review
“[R]eview of the Secretary’s decision [is limited] to a determination whether the
decision is supported by substantial evidence on the record as a whole. Substantial
evidence is evidence which reasonable minds would accept as adequate to support the
Secretary’s conclusion. [The Court] will not reverse a decision ‘simply because some
evidence may support the opposite conclusion.’” Mitchell v. Shalala, 25 F.3d 712, 714
(8th Cir. 1994) (citations omitted). Substantial evidence is “more than a mere scintilla” of
evidence; rather, it is relevant evidence that a reasonable mind might accept as adequate
to support a conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th Cir. 2010).
McKay contends that the ALJ erred in (1) failing to consider the opinion evidence
of Dr. Brent Koprivica, (2) failing to follow the medical improvement standard of review,
and (3) failing to resolve a conflict between the vocational expert’s testimony and
McKay’s functional capacity. The Court finds that the medical evidence indicating
McKay’s improvement in the years following his fall contain substantial evidence to
support the ALJ’s denial of benefits.
Dr. Koprivica examined McKay in February 1999 in connection with McKay’s
claim for workers’ compensation. [Tr. 438-50]. At the end of the evaluation, Dr.
Koprivica concluded the following:
In my opinion, Mr. McKay should be limited to light physical
demand level of activity. I would further restrict him from doing
any repetitive activities with his upper extremities involving his
wrists, hands, forearms or elbows. He should have limited standing
or walking activities to one hour as a maximum one-time interval.
He should be allowed postural change flexibility from sitting to
standing or walking as needed. In general, captive sitting should be
limited to one-hour intervals. He should avoid any frequent or
constant bending at the waist, pushing, pulling or twisting. He
should avoid sustained or awkward postures of the lumbar spine. He
should do no type of climbing activities. He should avoid squatting,
crawling or kneeling.
[Tr. 449]. McKay contends that the ALJ erred in not assigning weight to this opinion,
despite discussing Dr. Koprivica’s findings on physical examination.
The Court finds that the failure of the ALJ to assign specific weight to Dr.
Koprivica’s conclusions constitutes harmless error. The ALJ discussed Dr. Koprivica’s
evaluations at length in her decision. [Tr. 17, 19]. She then evaluated McKay with an
RFC which encompassed Dr. Koprivica’s conclusions that McKay should be limited to
light physical activity, have limited standing or walking, be allowed postural change
flexibility, and avoid squatting, crawling, or kneeling. [Tr. 15, 449]. The ALJ’s decision
not to include Dr. Koprivica’s proposed limitations on McKay’s ability to complete
repetitive activities with his upper extremities is supported by other evidence of the
record indicating that McKay has good hand and wrist mobility. [Tr. 18, 403]. As such,
the ALJ’s failure to assign the opinion weight “does not require reversal since it had no
bearing on the outcome.” Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008).
Substantial evidence of the record supports the ALJ’s RFC determination. The
record contains treatment records and opinions from a significant number of doctors
indicating that McKay improved dramatically after suffering extensive injuries in his
1995 fall. Though McKay claims continuing disability based in part on pain in his left
hand, wrist, and elbow, a March 1997 EMG of the area was within normal limits. [Tr.
18, 369]; see Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006) (“subjective pain
complaints are not credible in light of objective medical evidence to the contrary”). A
physical examination revealed no motor loss in McKay’s left hand or wrist and showed
good grip strength. [Tr. 18, 403]. In April 1997, McKay’s orthopedic surgeon observed
that he could lift up to 25 pounds. [Tr. 18, 414]. His lower body also exhibited marked
improvement. In February 1995, McKay was observed with 5/5 strength in his lower
extremities. [Tr. 446]. In April 1997, his doctor observed that he had normal gait. [Tr.
17, 369]. McKay’s orthopedic surgeon reported in February 1997 that his hip was
“virtually pain free,” and he received very little treatment for hip pain thereafter through
his date of last insured. [Tr. 17, 715]; see Singh v. Apfel, 222 F.3d 448, 453 (8th Cir.
2000) (“A claimant’s allegation of disabling pain may be discredited by evidence that the
claimant has received minimal medical treatment and/or has taken only occasional pain
medications.”). McKay took no prescription medication from at least January through
April 1997, and in February 2000, McKay’s consultative physician recommended
treatment with only over-the-counter pain medication. [Tr. 19, 368, 1024].
McKay next contends that the ALJ erred in failing to follow the medical
improvement standard of review. He argues that the ALJ implicitly reopened McKay’s
prior application for disability benefits when she considered evidence from the same time
period. However, McKay did not present any evidence of the prior application, nor did
he mention his past application or receiving benefits during the hearing. As such, the
ALJ had no basis to reopen McKay’s previous application for benefits, and reason to
apply the medical improvement standard or review in lieu of the typical five step process
to determine disability.
McKay finally argues that the ALJ’s decision is not supported by substantial
evidence because the ALJ failed to resolve a conflict between the vocational expert’s
testimony and the job characteristics set out by the Dictionary of Occupational Titles
(DOT) and companion publication Select Characteristics of Occupations (SCO). McKay
notes that his RFC stated that he was limited to “avoiding overhead reaching.” [Tr. 15].
The vocational expert then found that given McKay’s limitations he would be able to
perform jobs including that of a document preparer, weight tester, and order clerk/food
beverage. [Tr. 23]. McKay argues that according to the SCO, all three jobs require
frequent reaching, defined as “extending hand(s) and arm(s) in any direction.” Selected
Characteristics of Occupations, 341, 199, 335, United States Department of Labor,
Germania Publishing (2008).
While the SCO indicates that some document preparer, weight tester, and order
clerk/food beverage positions will require overhead reaching, its inclusion in the SCO
does not mean that overhead reaching is a requirement of all positions within those job
“DOT definitions are simply generic job descriptions that offer the
approximate maximum requirements for each position, rather than their range.” Wheeler
v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000). The vocational expert specifically noted that
she had supplemented her testimony “based on [her] education, training and experience,
particularly regarding the need for . . . overhead reaching.” [Tr. 56]. As such, there is
substantial evidence to support the ALJ’s conclusion that McKay could perform work
existing in significant numbers in the national economy. [Tr. 23].
For the reasons set forth above, the ALJ’s decision is affirmed.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: November 24, 2014
Jefferson City, Missouri
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?