Barker v. Colvin

Filing 17

ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION DENYING BENEFITS. Signed on 8/18/15 by District Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
FREDDIE BARKER,

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

Case No. 14-0900-CV-W-ODS-SSA

ORDER AND OPINION AFFIRMING
COMMISSIONER’S FINAL DECISION DENYING BENEFITS
Pending is Plaintiff’s appeal of the Commissioner of Social Security’s final
decision denying his application for supplemental security income. The Commissioner’s
decision is affirmed.
I.

INTRODUCTION

Plaintiff was born in October 1954, completed high school, but has no past
relevant work. The ALJ determined Plaintiff’s severe impairments included “obesity,
diabetes, neuropathy, and myositis.” R. at 13. The ALJ found Plaintiff has the residual
functional capacity (“RFC”) to “perform medium work…except that the claimant is
unable to climb ladders, ropes or scaffolds, or crouch. The claimant must avoid
concentrated exposure to extreme cold, extreme heat, and pulmonary irritants such as
fumes, odors, dust, gases, and poorly ventilated areas.” R. at 14. Based on the
testimony of a vocational expert, the ALJ determined Plaintiff could perform work as a
linen room attendant, retail ticket stubber, and order filler. R. at 19.
II.

LEGAL STANDARD

“[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 when 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). Though advantageous to the Commissioner, this
standard also requires that the Court consider evidence that fairly detracts from the final
decision. Forsythe v. Sullivan, 926 F.2d 774, 775 (8th Cir. 1991) (citing Hutsell v.
Sullivan, 892 F.2d 747, 749 (8th Cir. 1989)). Substantial evidence means “more than a
mere scintilla” of evidence; rather, it is relevant evidence that reasonable mind might
accept as adequate to support a conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th
Cir. 2010).
III.

DISCUSSION

A.
Plaintiff alleges Dr. Denise Trowbridge (“Trowbridge”), the state agency
consultant, formed her medical opinion without the benefit of subsequently created
medical records – specifically reports regarding an EMG and a muscle biopsy – and that
the ALJ erred in not acknowledging this fact. While it is true Trowbridge did not have
the benefit of these subsequently created medical records, this does not undermine the
consultant’s opinion regarding Plaintiff’s condition on the day the opinion was rendered.
Plaintiff does not provide, and the Court is not aware of, any legal authority which holds
a consultant’s medical opinion must be based on subsequently created medical records,
or that the consultant’s opinion must necessarily be discounted because it is not based
on those records. Thus, the Court discerns no error on this point. More importantly, as
discussed below, the additional records do not deprive the ALJ’s decision of the support
required by law.

B.
Plaintiff asserts the EMG and muscle biopsy reports suggest limitations greater
than those Trowbridge found Plaintiff to have. In particular, Plaintiff points to notes
regarding the biopsy results which state, “Right triceps: Andipose and fibrous
connective tissue and scattered muscle fibers with marked freezing artifact. Right

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Quadriceps: Denervation.” R. at 355. Plaintiff also points to notes regarding EMG
results which stated Plaintiff had “mild mixed axonal and demyelinating sensorimotor
peripheral neuropathy.” R. at 346. However, in these same medical records Plaintiff
also reported his muscle pain and fatigue were improving and that he walked in the
morning and uphill. R. at 340, 355. Moreover, after the biopsy and EMG were
performed, Plaintiff’s muscle fatigue and pain consistently improved. R. at 340, 347,
355. Given Plaintiff’s improvement, the EMG and biopsy results do not indicate Plaintiff
had greater limitations than those Trowbridge determined.

C.
Plaintiff maintains that diagnostic imaging from January and February 2012
suggest greater limitations than those Trowbridge or the ALJ found Plaintiff to have. As
a preliminary matter, Plaintiff’s alleged disability onset date was May 18, 2012, and thus
medical records prior to that date have limited import. Regardless, contrary to Plaintiff’s
assertion, the medical records in question do not demonstrate greater limitations than
those Trowbridge and the ALJ determined Plaintiff had. Instead, almost all of the
medical concerns were deemed to be “mild” in nature, and thus, cannot be considered
disabling. R. at 214, 216, 241.

D.
Plaintiff appears to argue that the ALJ adopted Trowbridge’s opinion in its
entirety, and that this was error. However, the ALJ did not adopt Trowbridge’s opinion in
full. Rather, the ALJ found Plaintiff had greater limitations than Trowbridge found. For
example, the ALJ determined Plaintiff was not able “to climb ladders, ropes or scaffolds,
or crouch,” and that Plaintiff “must avoid concentrated exposure to extreme cold,
extreme heat, and pulmonary irritants such as fumes, odors, dust, gases and poorly
ventilated areas.” R. at 14. Trowbridge did not assess similar limitations for Plaintiff. R.
62-68. Accordingly, the Court finds the ALJ did not commit error.

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E.
Plaintiff maintains the ALJ committed error in forming the RFC because the ALJ
mistakenly assumed that the EMG and the muscle biopsy treatments notes were not in
the Record, and that these medical records suggest greater limitations than those
reflected in Plaintiff’s RFC. It does appear the ALJ was mistaken when she stated the
biopsy “results are absent from the medical records as was an EMG purportedly done in
2013.” R. at 16. However, as previously discussed in Section III.B, these records
showed Plaintiff’s muscle fatigue and pain consistently improved. Even though the ALJ
may not have reviewed the biopsy and EMG results, these records do not indicate
Plaintiff had greater limitations than the ALJ assigned to him.

F.
Plaintiff claims the ALJ needed to further develop the record because “some
medical evidence must support the determination of Plaintiff’s RFC.” First, while “a
claimant’s RFC is a medical question…in evaluating a claimant’s RFC, and ALJ is not
limited to considering medical evidence exclusively.” Cox v. Astrue, 495 F.3d 614, 619
(8th Cir. 2007). It is simply not true that the RFC can be proved only with medical
evidence. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000); Dykes v. Apfel, 223
F.3d 865, 866 (8th Cir. 2000) (per curiam). Further, the ALJ must base the RFC on “all
relevant evidence, including the medical records, observations of treating physicians
and others, and individual’s own descriptions of his limitations.” McKinney v. Apfel, 228
F.3d at 863; see also Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001).
Here, the ALJ relied on extensive medical evidence in determining Plaintiff’s
RFC. For example, he relied on medical records from Truman Medical Centers and
Swope Health Services. Exhibits 3F, 5F. The medical evidence that existed was
sufficient to support the ALJ’s determination regarding Plaintiff’s abilities.
Second, Plaintiff bears the burden of establishing his disability. Roth v. Shalala,
45 F.3d 279, 282 (8th Cir. 1995). “While an ALJ should recontact a treating or
consulting physician if a critical issue is undeveloped, the ALJ is required to order
medical examinations and tests only if the medical records presented to him do not give
sufficient medical evidence to determine whether the claimant is disabled.” Martise v.
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Astrue, 641 F.3d 909, 926-27 (8th Cir. 2011) (internal citations and quotations omitted).
The ALJ is not required to rely on opinion evidence in determining Plaintiff’s RFC. Id. at
927. Additionally, “an ALJ is permitted to issue a decision without obtaining additional
medical evidence so long as other evidence in the record provides a sufficient basis for
the ALJ’s opinion.” Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994). Here, the ALJ
was not required to further develop the record, because “there is no indication that the
ALJ felt unable to make the assessment he did and his conclusion is supported by
substantial evidence.” Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005).

IV.

CONCLUSION

The Commissioner’s final decision denying benefits is affirmed.

IT IS SO ORDERED

DATE: August 18, 2015

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

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