Nail (Wilkinson) v. Colvin

Filing 13

ORDER affirming the Commissioner's decision. Signed on May 6, 2015 by District Judge Gary A. Fenner. (Moore, Terri)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SHERRY NAIL (WILKINSON),

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

Case No. 14-00465-CV-W-GAF-SSA

ORDER
Presently before the Court is Plaintiff Sherry Nail’s (“Plaintiff”) Social Security Brief,
requesting this Court reverse the Administrative decision that Plaintiff was not under a disability
as defined under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401 et seq. (Doc. #
7). Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration
(the “Commissioner” or “Defendant”), opposes. (Doc. # 12). For the reasons stated below, the
Commissioner’s decision is AFFIRMED.
DISCUSSION
I.

FACTS
On October 28, 2009, Plaintiff filed an application for disability insurance benefits under

Title II of the Act. (Administrative Court Transcript (“Tr.”) at 256). Plaintiff alleged a disability
beginning on September 25, 2009. (Id.). Plaintiff’s application was initially denied on February
4, 2010. (Id. at 74). On September 12, 2011, following a hearing, an administrative law judge
(the “ALJ”) found that Plaintiff was under a “disability” as defined in the Act. (Id. at 90). On
August 12, 2012, the Appeals Council of the Social Security Administration vacated and

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remanded the ALJ’s decision because there was an error of law and because it was not based
upon substantial evidence. (Id. at 93).
On remand, following another hearing, the ALJ found that Plaintiff was not under a
“disability” as defined in the Act. (Id. at 117). In her decision, the ALJ found that Plaintiff had
severe impairments of obesity, degenerative joint disease of the lumbar spine with significant
disc space narrowing, degenerative joint disease of the left knee, possible right shoulder
impingement syndrome, and bursitis of the left hip. (Id. at 110). However, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.). The
ALJ determined that Plaintiff retained the residual functional capacity (the “RFC”) to:
lift 20 pounds occasionally, 10 pounds frequently, stand/walk for up to 4 hours in
an 8-hour workday, and sit for up to 6 hours in an 8-hour day. She will need to
alternate between sitting and standing at least every 30 minutes. She can
occasionally climb ramps or stairs but never climb ropes, ladders, or scaffolds.
She can occasionally balance, stoop, and crouch, but she can never kneel or crawl.
Additionally, she is unable to do any overhead reaching with the right upper
extremity and she can only occasionally push and pull with the right upper
extremity. She needs to avoid exposure to extreme cold and unprotected heights.
(Id. at 111-12). With the assistance of vocational expert testimony, the ALJ found that Plaintiff’s
impairments would not preclude her from performing work that exists in significant numbers in
the national economy, including work as a mail router, price marker, or electrical assembler. (Id.
at 117). Consequently, the ALJ found that Plaintiff was not disabled. (Id.).
On March 25, 2014, the Appeals Council denied Plaintiff’s request for review. (Id. at 1).
Thus, the ALJ’s decision stands as the “final decision” of the Commissioner, subject to judicial
review on appeal herein.

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II.

LEGAL STANDARD
The standard of appellate review of the Commissioner’s decision is limited to a

determination of 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 enough that a reasonable mind might accept it as adequate to support a
decision.’” Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008) (quoting Kirby v. Astrue, 500
F.3d 705, 707 (8th Cir. 2007)).

Evidence that both supports and detracts from the

Commissioner’s decision should be considered, and an administrative decision is not subject to
reversal simply because some evidence may support the opposite conclusion. See Finch, 547
F.3d at 935.
A reviewing court should disturb an ALJ’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 McNamara v. Astrue, 590 F.3d 607,
610 (8th Cir. 2010) (if substantial evidence supports the Commissioner’s decision, the 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 a
court should “defer heavily to the findings and conclusions of the Social Security
Administration.” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255
F.3d 577, 581 (8th Cir. 2001).

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III.

ANALYSIS1
To establish entitlement to benefits, Plaintiff must show that she is unable to engage in

any substantial gainful activity due to a medically determinable impairment that has lasted or can
be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d).
Plaintiff has not met this burden.
Plaintiff first argues that the ALJ erred when she gave the opinion of Dr. Bleazard,
Plaintiff’s consulting physician, great weight but failed to include relevant limitations included in
Dr. Bleazard’s opinion or explain why she chose not to do so. (Doc. # 7, p. 15).
As an initial matter, “‘[t]he ALJ is not required to rely entirely on a particular physician’s
opinion or choose between the opinions [of] any of the claimant’s physicians.’” Martise v.
Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (quoting Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir.
2007)). Additionally, as the Tenth Circuit Court of Appeals held in Chapo v. Astrue, 682 F.3d
1285, 1288 (10th Cir. 2012), and as this Court has recognized, there is “no requirement in the
regulations for a direct correspondence between an RFC finding and a specific medical opinion
on the functional capacity in question.” See also Sundquist v. Colvin, No. 13-05031-CV-WREL-SSA, 2014 WL 1053600, at *7 (W.D. Mo. Mar. 19, 2014) (quoting Chapo, 682 F.3d at
1288); Brown v. Colvin, No. 3:12-05042-DGK-SSA, 2013 WL 2250234, at *3 (W.D. Mo. May
22, 2013) (quoting Chapo, 682 F.3d at 1288). Rather, the ALJ is the fact-finder, and she is
charged with weighing the evidence and reaching conclusions based on the evidence she finds
credible for legally supportable reasons. As the Chapo court stated, “‘[t]he ALJ, not a physician,
is charged with determining a claimant’s RFC from the medical record.’” 682 F.3d at 1288

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Upon review of the Record and the law, Defendant=s position is found to be persuasive. Much
of the Defendant=s brief is adopted without quotation designated.
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(quoting Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004)). Thus, it was permissible for
the ALJ to include some limitations recommended by Dr. Bleazard, but not others.
Plaintiff also contends that the ALJ failed to include Dr. Bleazard’s opinion that Plaintiff
should be limited in her ability to reach in all directions. (Doc. # 7, p. 15). Dr. Bleazard’s
opinion consisted of a report and a check-the-box form. (Tr. at 569-81). On the check-the-box
form, Dr. Bleazard stated that Plaintiff could only occasionally reach with her right hand. (Id. at
578). However in his report, Dr. Bleazard reported that Plaintiff had a “good range of motion to
the bilateral upper extremities” and no pain “on palpation to the bilateral shoulders.” (Id. at
570). The Eighth Circuit has held that a checklist opinion form has only limited evidentiary
value. Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001). Additionally, “[i]t is
permissible for an ALJ to discount an opinion of a treating physician that is inconsistent with the
physician's clinical treatment notes.” Davidson v. Astrue, 578 F.3d 838, 843 (8th Cir. 2009).
Thus it was appropriate for the ALJ to discount Dr. Bleazard’s check-the-box opinion on
Plaintiff’s reaching limitations.
Additionally, Plaintiff asserts that the ALJ failed to include Dr. Bleazard’s limitations
regarding handling and fingering. (Doc. # 7, p. 15). However, Dr. Bleazard opined that Plaintiff
can frequently handle and finger and has no restrictions regarding those abilities. (Tr. at 573,
578). At no point did Dr. Bleazard recommend any handling or fingering limitations. (See id. at
569-81). Thus, there were no limitations regarding handling and fingering that the ALJ failed to
include.
Finally, Plaintiff alleges that the ALJ failed to include Dr. Bleazard’s environmental
limitations. (Doc. # 7, p. 15). Dr. Bleazard found that Plaintiff could occasionally be exposed to
extreme heat; extreme cold; humidity and wetness; dust, odors, fumes, and pulmonary irritants;
vibrations; moving mechanical parts; and operating a motor vehicle. (Tr. at 580). Additionally,
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Dr. Bleazard found that Plaintiff should never be exposed to unprotected heights. (Id.). Some of
these environmental limitations were included in the RFC. For example, the ALJ restricted
Plaintiff from exposure to extreme cold and unprotected heights. (Id. at 112). As for the other
restrictions, the RFC need only include a claimant’s credible limitations.

See Tindell v.

Barnhart, 444 F.3d 1002, 1007 (8th Cir. 2006). These restrictions were only included in Dr.
Bleazard’s check-the-box form and found no support in Dr. Bleazard’s report. (See Tr. at 56981). Additionally, these environmental restrictions were not supported by Plaintiff’s testimony at
her hearing. At the hearing, Plaintiff testified that she routinely operates a motor vehicle. (Id. at
16-18). Additionally, when asked by the ALJ if there were any other environmental conditions
that aggravate her symptoms, Plaintiff testified that there were none other than the cold. (Id. at
31-32). Accordingly, it was appropriate for the ALJ not to include the other environmental
limitations in the RFC.
Plaintiff also contends that the ALJ erred by giving Dr. Bleazard’s postural limitations no
weight. (Doc. # 7, p. 17).
In his check-the-box form, Dr. Bleazard opined that Plaintiff could never climb ladders or
scaffolds, balance, stoop, kneel, crouch, or crawl and should only occasionally climb stairs or
ramps. (Tr. at 579). The ALJ incorporated some of these limitations into the RFC by stating
that, “[Plaintiff] can occasionally climb ramps or stairs but never climb ropes, ladders, or
scaffolds. She can occasionally balance, stoop, and crouch, but she can never kneel or crawl.”
(Id. at 111-12). However, the ALJ gave the rest of Dr. Bleazard’s postural limitations no weight
because the opinion was not consistent with Dr. Bleazard’s own examination or the medical
evidence of record. (Id. at 115).
These were proper reasons for the ALJ to discount Dr. Bleazard’s check-the box form.
As stated above, check-the-box opinions have only limited evidentiary value. See Holmstrom,
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270 F.3d at 721. Additionally, Dr. Bleazard’s narrative report did not include any support for
such limitations. (See Tr. at 569-81). Further, in his report Dr. Bleazard listed Plaintiff’s
recommended limitations but failed to mention any of these postural limits. (See id. at 572). As
noted above, “[i]t is permissible for an ALJ to discount an opinion of a treating physician that is
inconsistent with the physician’s clinical treatment notes.” Davidson, 578 F.3d at 843. An ALJ
may also discount a physician’s opinion that is not well-supported or is inconsistent with other
substantial evidence. See Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007). Dr. Bleazard’s
postural limitations are inconsistent with other substantial medical evidence of record. X-ray
reports showed that Plaintiff’s knee exhibited no evidence of fracturing, dislocation, or
significant joint effusion. (Tr. at 452, 493, 556). Accordingly, it was proper for the ALJ to
discount Dr. Bleazard’s postural limitations
CONCLUSION
The ALJ did not err by failing to include some of the limitations contained within Dr.
Bleazard’s check-the-box form. These limitations were not supported by substantial evidence of
record and conflicted with Dr. Bleazard’s treatment notes. Additionally, the ALJ was correct in
affording Dr. Bleazard’s check-the-box postural restrictions no weight because they also
conflicted with Dr. Bleazard’s narrative statement and the other medical evidence of record.
Accordingly, for these reasons and the reasons set forth above, the Commissioner’s decision is
AFFIRMED.
IT IS SO ORDERED.
/s/ Gary A. Fenner
Gary A. Fenner, Judge
United States District Court
DATED: May 6, 2015

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