Geer v. Berryhill

Filing 19

ORDER AFFIRMING THE COMMISSIONER'S DECISION. Signed on 3/27/18 by Chief District Judge Greg Kays. (Strodtman, Tracy)

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

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No. 4:17-CV-0196-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 Theresa Geer’s applications for Social Security
disability insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C.
§§ 401–434, and Supplemental Security Income under Title XVI of the Act, 42 U.S.C. §§ 1381–
1383f.

The Administrative Law Judge (“ALJ”) found Plaintiff had numerous severe

impairments, but if she stopped using methamphetamine she would retain the residual functional
capacity (“RFC”) to perform work as an office helper, routing clerk, or mail clerk.
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 applications on April 17, 2014, alleging a disability onset date of
October 5, 2011. The Commissioner denied the applications at the initial claim level, and

Plaintiff appealed the denial to an ALJ. The ALJ held a hearing, and on January 21, 2016, issued
a decision finding Plaintiff was not disabled. The Appeals Council denied Plaintiff’s request for
review on March 6, 2017, 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) and 42 U.S.C. § 1383(c)(3).
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 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. §§ 404.1520(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 argues the ALJ
erred at Step Three by (1) finding that her drug abuse was a material factor contributing to her
alleged disability and (2) finding that her impairments would not meet or equal a listed
impairment if she stopped using methamphetamine. Further, the ALJ erred at Step Four by (3)
discounting her credibility and (4) improperly assessing her physical and mental RFC.2 Finally,
the ALJ erred at Step Five by (5) finding the Commissioner had met her burden of showing that
Plaintiff could perform other work in the national economy.
All five arguments are without merit.
I.

The ALJ did not err in finding Plaintiff’s substance abuse was a contributing factor
material to any alleged disability.
In determining whether a claimant’s substance abuse is a contributing factor to a

determination of disability, the ALJ must first make a determination based on the five-step
approach without segregating out any effects that might be due to substance abuse.
Brueggemann v. Barnhart, 348 F.3d 689, 694 (8th Cir. 2003). If the claimant’s total limitations,
including those from the effects of substance abuse disorders, indicate he or she is disabled, then
the ALJ must determine which limitations remain after the effects of the substance abuse
disorders are removed. Id. at 694-95. The claimant carries the burden of proving her substance
abuse is not a contributing factor material to the claimed disability.

Id. at 693.

If after

conducting this analysis the ALJ cannot tell whether the claimant’s substance abuse is a material
factor, then the ALJ must award benefits. Id. at 695.  But the Eighth Circuit has cautioned that
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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Plaintiff argues the physical and mental claims in separate sections of her brief. The Court addresses both in
section IV of this decision.

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“when the claimant is actively abusing alcohol or drugs, this determination will necessarily be
hypothetical and therefore more difficult than the same task when the claimant has stopped.” Id.
The Court holds substantial evidence on the record supports the ALJ’s determination that
Plaintiff was capable of working absent any substance abuse. At the outset, the Court notes
Plaintiff testified she stopped using methamphetamine three months prior to the hearing, which
was held on November 18, 2015. R. at 57. This fact makes the analysis more difficult, and it is
Plaintiff’s burden to prove her substance abuse was not a contributing factor material to the
disability. The record indicates that when Plaintiff was using drugs, she was anxious, R. at 30607, 312-13, 319, 1190, 1192. But when she cut back or stopped using drugs, she had improved
mood and did better. R. at 309, 1207, 1221, 1237. She also had no anxiety, depression, or sleep
disturbance. R. at 575-76, 754-55, 764-65, 788-89. Additionally, Plaintiff testified that she
probably could hold a job while using methamphetamine, although she would not be performing
to the best of her ability. R. at 58. On this record, the ALJ made a reasonable inference that if
Plaintiff was incapable of working as she alleged, then her methamphetamine use was a material
contributing factor to her inability to work. Hence, the ALJ did not err in finding Plaintiff’s
substance abuse was a material factor contributing to any disability through May 31, 2015.
II.
The ALJ did not err in finding her impairments would not meet or equal a listed
impairment if she stopped using methamphetamine.
Related to the above, Plaintiff argues the ALJ erred at Step Three in finding that her
impairments would not meet or equal a listed impairment if she stopped using
methamphetamine. Plaintiff contends this determination is not supported by substantial evidence
on the record because the evidence the ALJ cited was from June of 2014, a period when Plaintiff
was using methamphetamine.

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Plaintiff’s argument appears to be that in determining whether her impairments would
meet or exceed a listing if she stopped using methamphetamine, the ALJ could only rely on
reports of her functioning during time periods when she was not using. If such evidence is scant
or unavailable, the ALJ cannot perform the analysis and should award benefits. Of course, this
means that in cases such as this one, where credible evidence of how the claimant functions
when not on drugs is scant or nonexistent because the claimant has consistently struggled with
drug abuse, the ALJ would always have to award benefits.
But this is not the law. It is the claimant’s burden to show her impairments would meet
or equal a listed impairment if she were not using drugs. Brueggemann, 348 F.3d at 693. The
law also recognizes that “when the claimant is actively abusing alcohol or drugs, this
determination will necessarily be hypothetical and therefore more difficult.” Id. at 695. Here the
ALJ’s analysis that Plaintiff’s impairments would not meet or equal a listed impairment if she
stopped using methamphetamine is admittedly hypothetical and difficult, but it is nonetheless
supported by substantial evidence on the record.
III.

The ALJ’s credibility determination is supported by substantial evidence.
Plaintiff also contends the ALJ’s credibility determination is not supported by substantial

evidence. The ALJ based his credibility determination on a wide variety of factors, including
her: activities of daily living (which include taking care of herself and her mentally disabled
son), conservative treatment, non-compliance with treatment, improvement with treatment, and
sporadic work history Plaintiff argues the ALJ’s findings are not supported by the record and so
cannot justify discounting her credibility.
Credibility questions are “primarily for the ALJ to decide, not the courts.” Baldwin v.
Barnhart, 349 F.3d 549, 558 (8th Cir. 2003). “If an ALJ explicitly discredits the claimant’s
testimony and gives good reasons for doing so, the Court should defer to the ALJ’s credibility
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determination.” Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir. 2003). Here the record supports
the ALJ’s findings. For example, the ALJ’s conclusion that Plaintiff’s work history undercuts her
credibility is supported by the record: Plaintiff had no earnings in 1999 or 2010 and only minimal
earnings in 1998, 2000, 2007, 2009, and 2011. R. at 38, 213. And it is well-settled that an ALJ may
consider a history of low earnings and inconsistent employment when discounting the claimant’s
credibility. See, e.g., Wright v. Colvin, 789 F.3d 847, 854 (8th Cir. 2015). The Court also notes the
record contains other inconsistencies which detract from Plaintiff’s credibility. For instance, during
her hearing on November 18, 2015, Plaintiff testified that she had not used methamphetamines for
three months. R. at 38, 57. In fact, treatment notes with her counselor from November 2015 indicate
she had used methamphetamine that month. R. at 1237.
Since the ALJ gave good reasons for discrediting Plaintiff’s testimony, the Court will not

disturb this finding. See Gregg, 354 F.3d at 713.
IV.

Substantial evidence supports the physical and mental RFC.
Plaintiff also contends the ALJ’s RFC determination regarding her physical and mental

abilities is unsupported by the record. Plaintiff contends that because the ALJ acknowledged
that there were no medical opinions in the record discussing her physical limitations, the Court
should reverse the ALJ’s decision. Similarly, Plaintiff contends the fact the ALJ gave the state
agency psychological consultant’s opinion only “partial” weight means the ALJ failed to obtain
some medical opinion evidence regarding her mental limitations.
These claims are based on the mistaken, but frequently argued, theory that the RFC
determination must be based on “some medical evidence.”

This argument is grounded in

caselaw from the early 2000s. See, e.g., Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir.
2004) (“Some medical evidence must support the determination of the claimant’s RFC, and the
ALJ should obtain medical evidence that addresses the claimant’s ability to function in the

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workplace.”); Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001) (“[S]ome medical
evidence must support the determination of the claimant’s [residual functional capacity]”). The
Eighth Circuit has recently clarified that this language does not mean the ALJ is required to base
the RFC determination on a medical opinion. Lockwood v. Colvin, 627 F. App’x 575, 577 (8th
Cir. 2015). The Eighth Circuit noted this argument regarding “some medical evidence” was an
“incomplete statement of the RFC inquiry established by a host of our prior Social Security
disability cases.” Id. The ALJ is “not limited to considering medical evidence exclusively,”
because “[e]ven though the RFC draws from medical sources for support, it is ultimately an
administrative determination reserved to the Commissioner.” Id.
Hence, Plaintiff’s claims are without merit.3
V.

Substantial evidence supports the finding that Plaintiff can perform other work.
Finally, Plaintiff argues the ALJ erred by finding the Commissioner sustained her burden

at Step Five to show Plaintiff retained the RFC to perform other kinds of work existing in
significant numbers in the national economy. Plaintiff contends that she cannot perform these
jobs, and that the vocational expert’s (“VE”) testimony is inconsistent with the Dictionary of
Occupational Titles (“DOT”).
Although Plaintiff may not agree with the VE’s opinion, the VE’s opinion is substantial
evidence nonetheless. The ALJ asked the VE a properly phrased hypothetical question which
incorporated the eventual RFC finding. R. at 80. The VE answered that Plaintiff could perform
jobs that are available in the local and national economy such as office helper, routing clerk, and
mail clerk. R. at 81. The VE also stated that her testimony was consistent with the DOT. R. at
81. Consequently, the ALJ did not err in basing his finding on the VE’s answer, because the
VE’s testimony constituted substantial evidence. See Milam v. Colvin, 794 F.3d 978, 985-86
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The Court encourages Plaintiff’s counsel in the future to review—and cite—more recent Eighth Circuit caselaw.

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(8th Cir. 2015) (“Testimony from a VE based on a properly-phrased hypothetical question
constitutes substantial evidence.”).
Conclusion
For the reasons discussed above, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
Date:

March 27, 2018

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

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