Studer v. Colvin

Filing 20

ORDER affirming the Commissioner's decision. Signed on March 21, 2017, by Chief District Judge Greg Kays. (Law clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DOROTHY D. STUDER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 4:16-CV-0192-DGK-SSA

ORDER AFFIRMING THE COMMISSIONER’S DECISION
This action seeks judicial review of the Acting Commissioner of Social Security’s (“the
Commissioner”) decision denying Plaintiff Dorothy Studer’s application for Social Security
disability insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C.
§§ 401–434. The Administrative Law Judge (“ALJ”) found Plaintiff had severe impairments of
a brain tumor (post-surgery), headaches, obesity, and depression, but she retained the residual
functional capacity (“RFC”) to perform work as a cashier, sub-assembler, and small parts
production assembler.
After carefully reviewing the record and the parties’ arguments, the Court finds the ALJ’s
opinion is supported by substantial evidence on the record as a whole. The Commissioner’s
decision is AFFIRMED.
Procedural and Factual Background
The complete facts and arguments are presented in the parties’ briefs and are repeated
here only to the extent necessary.
Plaintiff filed her application for disability insurance benefits on January 6, 2010,
alleging a disability onset date of December 23, 2009. The Commissioner denied the application

at the initial claim level, and Plaintiff appealed the denial to an ALJ. An ALJ held a hearing and
found Plaintiff was not disabled on October 24, 2012. The Appeals Council then remanded the
decision for a new hearing.
Following a new hearing, a different ALJ also concluded Plaintiff was not disabled on
February 25, 2015. The Appeals Council denied Plaintiff’s request for review on January 8,
2016, leaving the ALJ’s decision as the Commissioner’s final decision. Plaintiff has exhausted
all administrative remedies and judicial review is now appropriate under 42 U.S.C. § 405(g).
Standard of Review
A federal court’s review of the Commissioner’s decision to deny disability benefits is
limited to determining whether the Commissioner’s findings are supported by substantial
evidence on the record as a whole. Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016).
Substantial evidence is less than a preponderance, but is 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.

Id. The court must “defer heavily” to the Commissioner’s findings and

conclusions. Wright v. Colvin, 789 F.3d 847, 852 (8th Cir. 2015). The court may reverse the
Commissioner’s decision only if it falls outside of the available zone of choice; a decision is not
outside this zone simply because the evidence also points to an alternate outcome. Buckner v.
Astrue, 646 F.3d 549, 556 (8th Cir. 2011).
Discussion
The Commissioner follows a five-step sequential evaluation process 1 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

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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 makes five
claims here. She contends the ALJ erred at Step Four because he: (1) failed to obtain additional
medical opinion evidence from an examining or treating physician to properly determine her
RFC; (2) failed to consider her obesity in combination with her other impairments; and (3) gave
weight to a non-examining medical expert who testified at the hearing. She also argues (4) the
ALJ erred at Step Five in relying on the vocational expert’s (“VE”) testimony that she could
work as a cashier. Finally, she contends (5) the Appeals Council erred by not discussing new
evidence submitted after the ALJ rendered his decision.
These arguments are all without merit.
A.

The ALJ properly supported the RFC determination.
Plaintiff argues that because the ALJ rejected the opinions from two of her treating

physicians, Dr. Brent Peterson, M.D., and Dr. Darren Lovick, M.D., he insufficiently developed
the record. She contends that by rejecting their opinions, the ALJ triggered a duty to re-contact
the doctors and gather some medical opinion evidence on which to base an RFC determination.
Plaintiff is incorrect. The ALJ did not have a duty to re-contact the doctors, nor must an
ALJ have a doctor’s opinion upon which to base the RFC determination. Plaintiff’s argument is
based on a commonly argued, but mistaken, claim which the Eighth Circuit has specifically
rejected. This argument is grounded in caselaw suggesting that residual functional capacity must
be based on “some medical evidence.” Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir.
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. §§ 404.1520(a)–(g). Through Step Four of the analysis the claimant bears the
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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2004). Since Eichelberger, however, the Eighth Circuit has stated that “the 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). In 2015, the
Eighth Circuit clarified in Lockwood v. Colvin that “some medical evidence” does not mean the
ALJ was required to base his RFC finding on a medical opinion. 627 F. App’x 575, 577 (8th
Cir. 2015). It explained the argument regarding “some medical evidence” and physician opinion
was an “incomplete statement of the RFC inquiry established by a host of our prior Social
Security disability cases.” Id. It made clear that the ALJ was “not limited to considering
medical evidence exclusively,” and “[e]ven though the RFC draws from medical sources for
support, it is ultimately an administrative determination reserved to the Commissioner.” Id.
More troubling to the Court is that Plaintiff’s brief fails to cite recent, controlling Eighth
Circuit caselaw which rejects this claim. See, i.e., Halverson v. Astrue, 600 F.3d 922, 933-34
(8th Cir. 2010) (rejecting Halverson’s argument that “the ALJ should have further developed the
record to determine the degree to which her impairments limited her ability to engage in workrelated activities after the ALJ discredited Dr. Taylor’s opinion.”).

The Court encourages

counsel to review these cases.
B.

The ALJ sufficiently considered Plaintiff’s obesity.
Plaintiff also argues the ALJ erred by not sufficiently considering limitations arising from

her obesity or providing a reviewable explanation for how he assessed her obesity.
The regulations require the ALJ to consider the effects of obesity in combination with
other impairments. See SSR 02-1p, 2000 WL 628049. The ALJ did so here, noting that while
Plaintiff’s medical providers had consistently diagnosed her with obesity, there was no evidence
of any cardiovascular, respiratory, or musculoskeletal impairment attributable to her obesity. R.
at 20. The ALJ also observed Plaintiff had not attempted to lose weight. R. at 20. In addition,
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the Court notes Plaintiff has not identified any evidence suggesting she had an obesity-related
impairment inconsistent with her RFC. Given this record, the ALJ’s explanation was sufficient.
See Forte v. Barnhart, 377 F.3d 892, 897 (8th Cir. 2004) (upholding the ALJ’s decision,
observing that “treating doctors noted [the claimant] was obese and should lose weight, [but]
none of them suggested his obesity imposed any additional work-related limitations, and he did
not testify that his obesity imposed additional restrictions.”); Brown ex rel. Travis v. Barnhart,
388 F.3d 1150, 1153 (8th Cir. 2004) (holding the ALJ sufficiently considered Plaintiff’s obesity
where “[t]he ALJ specifically referred to Travis’s obesity in evaluating his claim.”).
C.

The ALJ did not err in citing the medical expert’s testimony.
Next, Plaintiff contends the ALJ’s RFC determination was unsupported because he relied

on testimony from a non-examining medical expert, psychiatrist Dr. Alfred Jonas, M.D. Plaintiff
contends the ALJ erred because he had a duty to develop the record and obtain some opinion
evidence from an examining or treating psychiatrist as to any limitations from her mental
impairments.
This claim is without merit; the ALJ did not have a duty to develop the record further.
The weight an ALJ should assign to a non-examining physician’s opinion depends on the amount
of support the non-examining physician provides for his or her opinion.

20 C.F.R. §

404.1527(c)(3). Here, Dr. Jonas’s opinion was well-explained and consistent with the other
medical evidence. R. at 18-19. Hence, the ALJ did not err in giving Dr. Jonas’s opinion some
weight.

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D.

The ALJ did not err at Step Five in finding she could work at jobs existing in
significant numbers in the national economy.
Plaintiff contends the ALJ erred at Step Five in finding that she could work at jobs

existing in significant numbers in the national economy. Plaintiff contends she cannot perform
the job of cashier II.
As the Commissioner notes, even assuming Plaintiff could not work as a cashier II, the
VE identified two other jobs Plaintiff does not dispute she could perform, a sub-assembler and a
small parts production assembler. The VE testified that there were about 232,000 of these
positions available in the national economy and 950 available in Missouri. Hence, the ALJ
identified positions Plaintiff could perform which exist in significant numbers in the national
economy. See, e.g., Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) (holding 500 jobs
within the claimant’s region is a “significant” number).
E.

The Appeals Council did not err by failing to discuss Dr. El-Halawany’s letter.
Finally, Plaintiff argues the Appeals Council failed to discuss sufficiently a letter from

Dr. Nabil El-Halawany, M.D., Plaintiff submitted after the ALJ rendered his decision. In this
conclusory, three sentence letter, Dr. El-Halawany opined that due to “severe depression”
Plaintiff was “unable to maintain gainful employment.” R. at 1223.
In its decision, the Appeals Council explained it had considered the “additional evidence
listed on the enclosed Order,” which included Dr. El-Halawany’s letter, and it concluded the
evidence did not provide a basis for changing the ALJ’s decision. R. at 2, 4. This explanation
was sufficient. See, e.g., Holden v. Astrue, No. 4:10CV742 RWS (FRB), 2011 WL 2730914, at
*33-34 (E.D. Mo. Jun. 15, 2011) (finding Appeals Council sufficiently considered evidence
when it listed the exhibits in its attached exhibit list). Further, even if the Appeals Council did
fail to consider this information, any error here is harmless because statements from a doctor that

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a claimant cannot be gainfully employed “are not medical opinions, but opinions on the
application of the statute, a task assigned solely to the discretion of the [Commissioner].’” Cruze
v. Chater, 85 F.3d 1320, 1325 (8th Cir. 1996) (internal quotation marks omitted).
Conclusion
For the reasons discussed above, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
Date:

March 21, 2017

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

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