Winkler v. Colvin
ORDER AND OPINION AFFIRMING COMMISSIONERS FINAL DECISION DENYING BENEFITS. Signed on 4/3/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security, )
Case No. 16-00673-CV-W-ODS
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 disability and disability insurance benefits. For the
following reasons, the Commissioner’s decision is affirmed.
I. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is limited to a determination
whether the decision is “supported by substantial evidence on the record as a whole.
Substantial evidence is less than a preponderance but…enough that a reasonable mind
would find it adequate to support the conclusion.” Andrews v. Colvin, 791 F.3d 923, 928
(8th Cir. 2015) (citations omitted). “As long as substantial evidence in the record
supports the Commissioner's decision, we may not reverse it because substantial
evidence exists in the record that would have supported a contrary outcome, or
because we would have decided the case differently.” Cline v. Colvin, 771 F.3d 1098,
1102 (8th Cir. 2014) (citation omitted). Though advantageous to the Commissioner, this
standard also requires that the Court consider evidence that fairly detracts from the final
decision. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2015) (citation omitted).
Substantial evidence means “more than a mere scintilla” of evidence; rather, it is
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for
former Acting Commissioner Carolyn A. Colvin as the defendant in this suit.
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th Cir. 2010).
Plaintiff was born in 1950, and completed two years of college. R. at 94, 131.
His prior work experience includes truck driving and process serving. R. at 146.
Plaintiff applied for disability and disability insurance benefits in November 2012,
alleging he became disabled on December 31, 2005. R. at 12, 94-100. Plaintiff’s
application was denied, and he requested a hearing. On August 7, 2014, a video
hearing was held before an administrative law judge (“ALJ”). R. at 22-30. On March 2,
2015, the ALJ issued her decision, finding Plaintiff was not disabled. R. at 12-17.2
In reaching her decision, the ALJ found Plaintiff had chronic liver disease and
affective disorders, but concluded Plaintiff’s impairments did not “significantly limited the
ability to perform basic work-related activities for 12 consecutive months.” Id. at 14-17.
Because these impairments were not severe, Plaintiff was not disabled. Id. Plaintiff
appealed the ALJ’s decision to the Appeals Council, which dismissed his appeal in April
2016. R. at 1-3.
Plaintiff contends the Commissioner’s decision should be reversed because (a)
the ALJ did not apply the Polaski factors to explain why Plaintiff was not “entirely
credible,” and (b) the ALJ failed to fully develop the record.
A. Plaintiff’s Credibility
Plaintiff argues the ALJ did not apply the Polaski factors when she analyzed
Plaintiff’s credibility. The familiar standard for analyzing a claimant’s subjective
complaints is set forth in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984):
The ALJ noted Plaintiff was previously awarded supplemental security income on
February 1, 2013. R. at 12. The only issue pending for the ALJ was the potential award
of disability benefits, and the “alleged disability must be established prior” to December
31, 2005, the last date insured for disability benefits. Id.
While the claimant has the burden of proving that the disability results
from a medically determinable physical or mental impairment, direct
medical evidence of the cause and effect relationship between the
impairment and the degree of claimant’s subjective complaints need not
be produced. The adjudicator may not disregard a claimant’s subjective
complaints solely because the objective medical evidence does not fully
The absence of an objective medical basis which supports the degree of
severity of subjective complaints alleged is just one factor to be
considered in evaluating the credibility of the testimony and complaints.
The adjudicator must give full consideration to all of the evidence
presented relating to subjective complaints, including the claimant’s prior
work record, and observations by third parties and treating and examining
physicians relating to such matters as:
1. The claimant’s daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant’s subjective
complaints solely on the basis of personal observations. Subjective
complaints may be discounted if there are inconsistencies in the evidence
as a whole.
Id. at 1322. The ALJ may also consider the absence of objective medical evidence to
support the claimant’s complaints. Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009)
(citations omitted). The ALJ “need not explicitly discuss each Polaski factor...[t]he ALJ
need only acknowledge and consider those factors before discounting a claimant’s
subjective complaints.” Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)
(citations omitted); see also Samons v. Apfel, 497 F.3d 813, 820 (8th Cir. 2007).
During the hearing before the ALJ, Plaintiff testified that, prior to the date last
insured, he experienced diarrhea, fatigue, and ascites.3 R. at 15, 27. He complained
his energy level was “very low” and was incapable of participating in any full-day
activities. Id. at 27-15, 28. His typical day consisted of getting up and not moving
“Ascites” is defined as the “accumulation of serous fluid in the peritoneal cavity.”
Stedman’s Medical Dictionary 165 (28th ed. 2006).
around until the afternoon. Id. at 15, 28. He would help with some laundry and some
grocery shopping. Id.
The ALJ considered Plaintiff’s testimony and the evidence of the record, and in
doing so, properly analyzed Plaintiff’s credibility. The ALJ found Plaintiff’s “statements
concerning the intensity, persistence and limiting effects” of his symptoms associated
with chronic liver disease and affective disorders were “not entirely credible.” R. at 15.
The ALJ’s determination was based upon the “scant” medical evidence prior to
Plaintiff’s date last insured, which did not support Plaintiff’s allegations that he was
unable to perform and sustain any full-time work. Id. at 16.
With regard to symptoms associated with chronic liver disease, the ALJ found
Plaintiff reported episodes of abdominal cramps and diarrhea in February 2005, and
was told he had to stop consuming alcohol “for six months in case of need for
treatment.” R. at 16, 497-501.4 Plaintiff refused to discontinue consuming alcohol until
several months later. Id. at 16, 499. The ALJ noted a colonoscopy in March 2005
demonstrated “three non-bleeding rectal varices” but “was otherwise normal.” Id. at 16,
494.5 The ALJ also relied on a progress note from January 2006, one month after
Plaintiff was last insured, that indicated he had “[n]o stigmata of ch[ronic] liver disease.”
Id. at 16, 484. One month later, another progress note stated there was “[n]o evidence
of decompensated liver” disease. Id.
With regard to symptoms associated with affective disorders, the ALJ found
Plaintiff denied any mood disorder in December 2004, and refused a referral to the
mental health clinic. R. at 16, 504. In March 2005, Plaintiff’s depression screen was
“negative.” Id. at 16, 492. In November 2005, Plaintiff complained of insomnia but was
Plaintiff did not experience diarrhea again until October 2005, and it stopped by
November 2005. R. at 487, 491. Additionally, Plaintiff reported he began working as a
process server in 2005 (the year he allegedly became disabled) and continued to
perform such work through at least December 2012. R. at 36, 107, 131, 146, 218, 811,
1156, 1175, 1200, 1269, 1296. These facts further call into question Plaintiff’s
allegations that his symptoms were severe and prevented him from working.
In March 2005, a doctor recommended Plaintiff follow up with the gastrointestinal
clinic, but Plaintiff missed his appointment and did not ask to have it rescheduled until
October 2005. R. at 490-91, 495. He did not begin participation in the clinic until
December 1, 2005. R. at 485.
“[n]ot willing” to go to the mental health clinic. Id. at 16, 487.6 A state agency medical
consultant also reviewed Plaintiff’s medical records and opined there was insufficient
evidence at the time of the alleged onset date and the date last insured to complete a
psychiatric review technique. Id. at 16, 40-45. The ALJ also noted that in February
2006, two months after Plaintiff was last insured, there were no active mental health
issues. Id. at 17.
The ALJ also remarked that Plaintiff had not offered, and the record did not
contain, any functional capacity opinions from Plaintiff’s physicians analyzing Plaintiff’s
functional capacity during the relevant timeframe. R. at 16. In fact, there were no
opinions from any source establishing Plaintiff was functionally impaired during the
relevant timeframe. Id.
The ALJ considered the Polaski factors. R. at 15-17. The ALJ is not required to
discuss each factor in turn, but must merely consider the Polaski factors. See
Eichelberger, 390 F.3d at 590. To the extent Plaintiff argues the medical evidence
could support a decision contrary to the ALJ’s, the Court will not substitute its judgment
for that of the ALJ. See Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir. 2003) (stating
“[t]he credibility of a claimant’s subjective testimony is primarily for the ALJ to decide,
not the courts.”). The Court finds the ALJ did not err in analyzing Plaintiff’s credibility.
B. Failure to Develop the Record
Plaintiff also contends the ALJ failed to develop the record. Specifically, Plaintiff
argues “no medical doctor ever reviewed the file,” the ALJ either ignored or concluded
several laboratory findings did not provide evidence of an impairment that impacted the
ability to work, and “[n]othing in the record clearly establishes” Plaintiff’s impairments
were not severe. Doc. #6, at 10.
First, Plaintiff cites no authority for his argument that the ALJ’s decision should
be reversed because a medical doctor did not review Plaintiff’s file. The Court has not
found such authority.
Plaintiff also complained of insomnia in October 2005, but refused a referral to the
mental health clinic. R. at 491.
Second, Plaintiff does not point to any particular laboratory findings in the record
that the ALJ allegedly ignored or concluded were not evidence of an impairment that
affected Plaintiff’s ability to work. Without knowing which records, particularly in a
record that exceeds 1,400 pages, were purportedly overlooked, the Court cannot
ascertain which particular records should have been considered. Furthermore, based
upon its review of the ALJ’s decision, it is evident that the ALJ considered the relevant
laboratory findings. R. at 14-17.
Finally, Plaintiff’s argument that nothing in the record “clearly establishes” his
impairments were not severe misrepresents the applicable burden of proof. “It is the
claimant’s burden to establish that his impairment or combination of impairments are
severe.” Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007) (citation omitted). Plaintiff
must “submit all evidence…that relates to whether or not you are…disabled.” 20 C.F.R.
§ 404.1512(a). The Social Security Administration only considers impairments for which
it has received evidence. Id. Here, Plaintiff had the burden of establishing his
impairments were severe, and ultimately, disabling. And, contrary to Plaintiff’s
argument, an impairment is not presumed severe until found otherwise. Here, Plaintiff
failed to establish his impairments were severe. The Court finds the record was
properly developed and provided sufficient information on which the ALJ based her
The Court concludes there is substantial evidence in the record as a whole to
support the ALJ’s decision. The Commissioner’s decision denying benefits is affirmed.
IT IS SO ORDERED.
DATE: April 3, 2017
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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