Dawkins v. Colvin

Filing 22

ORDER Affirming Commissioner's Decision. Signed on 2/24/16 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DERON LAVANCE DAWKINS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 3:14-0806-DGK-SSA

ORDER AFFIRMING COMMISSIONER’S DECISION
Plaintiff Deron Lavance Dawkins seeks judicial review of the Acting Commissioner of
Social Security’s denial of his application for Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act, 42 U.S.C. §§ 1381–1383f.

The Administrative Law Judge

(“ALJ”) found Plaintiff had severe mental impairments of psychotic disorder, attention deficit
hyperactive disorder, oppositional defiant disorder, bipolar disorder, impulse control disorder,
and a mood disorder, but he retained the residual functional capacity (“RFC”) to perform work as
an industrial cleaner, kitchen helper, and a landscape helper.
After carefully reviewing the record and the parties’ arguments, the Court holds the
ALJ’s decision is supported by substantial evidence on the record as a whole.

The

Commissioner’s decision is AFFIRMED.
Factual and Procedural Background
The medical record is summarized in the parties’ briefs and is repeated here only to the
extent necessary.
Plaintiff filed his application on March 17, 2011, alleging a disability onset date of
September 11, 2000. The Commissioner denied Plaintiff’s application at the initial claim level,

and Plaintiff appealed the denial to an ALJ. The ALJ held a video hearing, and on March 22,
2013, issued her decision finding Plaintiff was not disabled. The Appeals Council denied
Plaintiff’s request for review on July 15, 2014, leaving the ALJ’s decision as the Commissioner’s
final decision. Plaintiff has exhausted all of his administrative remedies and judicial review is
now appropriate under 42 U.S.C. § 1383(c)(3).
Standard of Review
A federal court’s review of the Commissioner’s decision to deny SSI benefits is limited
to determining whether the Commissioner’s findings are supported by substantial evidence on
the record as a whole. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011). Substantial
evidence is less than a preponderance, but enough evidence that a reasonable mind would find it
sufficient to support the Commissioner’s decision. Id. In making this assessment, the court
considers evidence that detracts from the Commissioner’s decision, as well as evidence that
supports it. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). The court must “defer
heavily” to the Commissioner’s findings and conclusions. Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir. 2010). The court may reverse the Commissioner’s decision only if it falls outside of the
available “zone of choice,” and a decision is not outside this zone simply because the court might
have decided the case differently were it the initial finder of fact. Buckner, 646 F.3d at 556.
Analysis
The Commissioner follows a five-step sequential evaluation process1 to determine
whether a claimant is disabled, that is, unable to engage in any substantial gainful activity by

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“The five-step sequence involves determining whether (1) a claimant’s work activity, if any, amounts to substantial
gainful activity; (2) his impairments, alone or combined, are medically severe; (3) his severe impairments meet or
medically equal a listed impairment; (4) his residual functional capacity precludes his past relevant work; and (5) his
residual functional capacity permits an adjustment to any other work. The evaluation process ends if a
determination of disabled or not disabled can be made at any step.” Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 632
n.1 (8th Cir. 2014); see 20 C.F.R. § 416.920(a)–(g). Through Step Four of the analysis the claimant bears the

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reason of a medically determinable impairment that has lasted or can be expected to last for a
continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A).
Plaintiff contends the ALJ committed two reversible errors at step four. First, after
finding at step three that he had moderate difficulty in maintaining concentration, persistence, or
pace, the ALJ erred by not accounting for these “moderate” limitations in her RFC or in the
hypothetical posed to the vocational expert (“VE”). Pl.’s Br. (Doc. 9) at 20. Second, the ALJ
erred by failing to base the RFC determination on substantial evidence on the record. Pl.’s Br. at
22. There is no merit to either claim.
Plaintiff’s first argument rests on a misunderstanding of what “moderate” means as used
at various points in the sequential evaluation.

The ALJ’s finding that he had “moderate”

difficulty in maintaining concentration, persistence, or pace, was made in the context of
determining whether Plaintiff’s mental impairments met or equaled a medical listing. It was not
intended to be used, and should not be used, as a RFC assessment. Social Security Ruling 96-8p
makes this clear:

“The adjudicator must remember that the limitations identified in the

‘paragraph B’ and ‘paragraph C’ criteria are not an RFC assessment but are used to rate the
severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process.” SSR 968p (emphasis added). Simply put, “moderate” means different things in these different contexts.
Thus, in formulating Plaintiff’s RFC, the ALJ did not have to include a limitation finding he had
“moderate” difficulty in maintaining concentration, persistence, or pace, nor did she have to ask
the VE about “moderate” difficulties in concentration, persistence, or pace. See Martise v.

burden of showing that he is disabled. After the analysis reaches Step Five, the burden shifts to the Commissioner
to show that there are other jobs in the economy that the claimant can perform. King v. Astrue, 564 F.3d 978, 979
n.2 (8th Cir. 2009).

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Astrue, 641 F.3d 909, 929 (8th Cir. 2011) (holding hypothetical questions to the VE need only
account for impairments the ALJ finds are supported by the record).
There is no merit to Plaintiff’s second argument because substantial evidence on the
record supports the ALJ’s RFC determination. The ALJ found Plaintiff retained the ability “to
perform a full range of work at all exertional levels,” but he had mental impairments which
restricted him to “simple, repetitive, routine tasks in a work environment free of fast paced
production requirements, involving only simple, work-related decisions with few, if any,
workplace changes.” The ALJ ruled he could “have no interaction with the public. He can work
around co-workers but can have only occasional interaction with co-workers.” R. at 15.
Plaintiff argues the ALJ should have included many other limitations in the RFC.
However, it is the claimant’s burden to prove his RFC. Eichelberger v. Barnhart, 390 F.3d 584,
591 (8th Cir. 2004). And the ALJ should include in the RFC only those “credible limitations”
which are based on “credible evidence.” McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011).
This latter requirement is fatal to Plaintiff’s claim here because the ALJ’s adverse
credibility determination2 is uncontested and practically dictates the RFC finding. For example,
the ALJ rejected assertions by Plaintiff, his mother, and his grandmother that he could not focus
sufficiently to hold a full-time job. R. at 18, 20. This finding is supported by the record.
Plaintiff suggested in his testimony that he could work, and he identified several activities, such

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The ALJ found Plaintiff’s statements concerning the limiting effects of his symptoms not entirely credible because:
(1) his school records showed he was in regular classes 94% of the time; (2) his IQ was in the average range; (3)
while in high school he made progress on his educational goals, learned to control his combativeness, and graduated;
(4) he attended a semester of community college; (5) he admitted during the hearing that he believed he could work
a simple job; (6) his activities—such as volunteering teaching kids to play basketball, and occasionally helping his
uncle with construction work or his brother in his barbershop—were inconsistent with his claims; and (7) his claims
were inconsistent with the objective medical evidence. R. at 16, 20. Although the ALJ’s finding concerning
Plaintiff’s attendance in regular classes is not supported by the record—Plaintiff attended an alternate school, his
teachers had to make many accommodations for him, and he received a ten day suspension within the first two
weeks, all of which suggest it is misleading to characterize Plaintiff as successfully attending regular classes 94% of
the time—the other reasons are.

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as volunteering and occasionally helping his brother with construction work or his uncle in his
barbershop, which supported this belief. R. at 18-20, 37-41, 47, 49-50. Consequently, the ALJ
did not need to include in Plaintiff’s RFC more restrictions on his ability to concentrate in the
workplace.
Conclusion
Substantial evidence on the record supports the Commissioner’s decision, and so the
Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
Date:

February 24, 2016

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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