Irwin v. Colvin
ORDER - The Commissioner's decision is AFFIRMED. Signed on 8/30/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
RAY EDWARD IRWIN, II,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
ORDER AFFIRMING THE COMMISSIONER’S DECISION
This action seeks judicial review of the Acting Commissioner of Social Security’s (“the
Commissioner”) decision denying Plaintiff Ray Irwin’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 anxiety,
depression, and post-traumatic stress disorder (“PTSD”), but retained the residual functional
capacity (“RFC”) to perform past work as a car porter, or alternately, to work as an industrial
cleaner, order filler, and machine finisher.
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 his application for disability insurance benefits on March 5, 2015, alleging
a disability onset date of January 1, 2010. The Commissioner denied the application at the initial
claim level, and Plaintiff appealed the denial to an ALJ. An ALJ held a hearing and on February
3, 2016, ruled that Plaintiff was not disabled.
The Appeals Council denied Plaintiff’s request for review on March 24, 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).
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
“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. §§ 404.1520(a)–(g). Through Step Four of the analysis the claimant bears the
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 three arguments. He contends the ALJ erred at Step Four because he: (1)
failed to weigh a doctor’s medical opinion and (2) erred in finding he could perform past relevant
work. He also argues the ALJ erred at Step Five in finding that (3) he could work as an
industrial cleaner, order filler, or machine finisher.
These arguments are unavailing.
The ALJ considered Dr. Karr’s opinion.
Plaintiff argues it is unclear from the ALJ’s decision whether he considered the opinion
of Dr. Carolyn Karr, Ph.D., that Plaintiff’s PTSD interfered with his ability to perform gainful
activities. Plaintiff suggests that since the Court cannot determine whether the ALJ ignored,
improperly weighed, or overlooked Dr. Karr’s opinion, the case must be remanded.
Plaintiff’s argument is based on a two sentences in the “Remarks” section of a disability
benefits questionnaire Dr. Karr completed on October 16, 2014. Dr. Karr wrote in it:
The following symptoms and behaviors exhibited and reported by
the veteran interfere with maintenance of gainful activities
(including both sedentary and physical tasks): sleep issues,
depression, irritability, some trouble getting along with others,
social isolation, hypervigilance, avoidance of trauma-related
stimuli and triggers, and heightened arousal. These symptoms
constitute functional limitations to starting and completing both
sedentary and physical tasks.
R. at 274, 476. The questionnaire appears in its entirety in two parts of the record, exhibits 1F
and 4F. R. at 264-74; 467-76. In each exhibit, the questionnaire is contained within a larger
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).
group, 129 pages and 107 pages respectively, of Veterans Administration records. R. at 246374, 397-504. Plaintiff’s argument is, in essence, that because the ALJ’s opinion cited only the
exhibit numbers, and not Dr. Karr’s specific remark, remand is required.
This argument is without merit. “[A]n ALJ is not required to discuss every piece of
evidence submitted.” Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010). “An ALJ’s failure
to cite specific evidence does not indicate that such evidence was not considered.” Id. While it
may be a deficiency in opinion-writing technique, remand is required only if the ALJ’s decision
is not otherwise supported, or if the ALJ’s decision contains other errors and uncertainties.
Nowling v. Colvin, 813 F.3d 1110, 1121 (8th Cir. 2016).
In the present case, the record
demonstrates the ALJ was aware of and considered Dr. Karr’s opinion. The ALJ specifically
cited exhibits 1F and 4F twice while discussing Plaintiff’s mental RFC, and he noted that the
evidence documented a history of depression and anxiety-related symptomology. R. at 21-22.
He also noted that the majority of the medical evidence showed Plaintiff’s mental health was
well-controlled and stable, and that the majority of the evidence from the Veterans
Administration consisted of checklists and not the results of mental status examinations. R. at
22. Given that he discussed the contents of the questionnaire generally, that the questionnaire
appears twice in the record, and that the ALJ cited both exhibits containing it, the Court is
convinced he considered it.
Further, although it would have been better if the ALJ had specifically discussed Dr.
Karr’s opinion, the ALJ’s decision nonetheless reflects he found it was not persuasive. And
there is a good reason supporting the decision to not give Dr. Karr’s opinion significant weight:
The ALJ may properly discount a physician’s opinion when it is inconsistent with her own
examination notes. See Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015). Here, Dr. Karr noted
Plaintiff was “generally functioning satisfactorily, with normal routine behavior,” and he was
pleasant with a stable affect and cooperative. R. at 265, 273, 468, 476. But Dr. Karr nonetheless
concluded Plaintiff’s symptoms, including trouble getting along with others, interfered with his
ability for any kind of gainful employment. R. at 274, 476. Thus, Dr. Karr’s opinion is not
entitled to significant weight because it is inconsistent with her examination notes. The ALJ’s
decision is also well-supported because his RFC determination properly accounted for Plaintiff
having some trouble getting along with others by limiting him to having only occasional,
superficial contact with co-workers and supervisors and no contact with the public. R. at 19.
Thus, even though there is arguably a deficiency in opinion writing technique here, remand is not
required because the ALJ’s decision is well-supported.
The ALJ did not err in finding Plaintiff could work as an industrial cleaner, order
filler, or machine finisher.
The Commissioner does not contest that the ALJ erred in finding that Plaintiff’s past
work as a car porter for UPS qualifies as past relevant work. Rather, the Commissioner contends
that assuming he erred, the ALJ’s alternate finding that Plaintiff could still work as an industrial
cleaner, order filler, or machine finisher is supported by substantial evidence, so the Court must
The ALJ asked the vocational expert (“VE”) a hypothetical question assuming a person
of Plaintiff’s age with the same education and work experience and no physical limitations, but
who was limited to repetitive, unskilled, simple work that did not involve complex instructions.
R. at 41.
The individual could have no interaction with the public, and only occasional
superficial interaction with co-workers and supervisors. R. at 42. The VE answered that the
individual could work as an industrial cleaner, order filler, and machine finisher, and that her
answer was consistent with the Dictionary of Occupational Titles (“DOT”). R. at 42. She also
noted that some of the limitations addressed in the hypothetical question were not addressed by
the DOT, but she based her answer on her professional experience with the jobs in the labor
market. R. at 43. The VE testified that the jobs she cited would be learned through on-the-job
training, observation, and hands-on learning, and that an individual might need to closely shadow
another employee for a day or two to learn the job, but that it could be as little as an hour. R. at
Plaintiff argues that the VE’s testimony conflicts with the DOT because he could not
perform the jobs she identified since they have a specific vocational preparation (“SVP”) of two
and require the ability to follow detailed instructions. The jobs also have a reasoning level of
two, which requires carrying out detailed, but uninvolved, instructions.
This argument is without merit. A finding that a claimant can perform simple, routine,
repetitive work is not inconsistent with the ability to perform reasoning level two work. See
Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010). The ALJ found Plaintiff could perform
“repetitive, unskilled, simple tasks with no complex instructions.” R. at 19. Hence, the ALJ did
not err in finding Plaintiff could perform reasoning level two jobs.
Plaintiff’s claim that he could not perform the jobs identified by the VE because learning
them would require interaction with co-workers or supervisors is also unavailing. The VE cited
jobs that have an SVP of two, which requires anything from slightly more than a short
demonstration to up to one month to learn. See DOT App’x C (4th ed., Rev. 1991). Plaintiff
assumes that he would have to work side-by-side with a co-worker for that entire time to learn
the job. However, vocational preparation includes a number of factors including past schooling,
past job experience, as well as on-the-job demonstrations. See id. Thus, Plaintiff’s limitation to
occasional, superficial interaction with co-workers and supervisors would not preclude him from
learning these jobs. Because the ALJ’s hypothetical to the VE incorporated all of Plaintiff’s
limitations and the VE’s testimony was not inconsistent with the DOT, the ALJ properly relied
on the VE’s testimony to find Plaintiff could perform other work available in the national
economy. See Gragg v. Astrue, 615 F.3d 932, 941 (8th Cir. 2010). Thus, the ALJ did not err in
finding Plaintiff was not disabled.
For the reasons discussed above, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
August 30, 2017
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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