Booth v. Berryhill

Filing 21

ORDER entered by Judge Nanette K. Laughrey. The Commissioner's decision is affirmed. Signed on 1/17/19 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea)

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

)
)
)
)
)
)
)
)
)
)
)

Case No. 4:18-CV-00179-NKL

ORDER
Plaintiff Diana Booth appeals the Commissioner of Social Security’s final decision denying
her application for disability insurance benefits under Title II of the Social Security Act. For the
reasons set forth below, the decision is affirmed.
I.

Background
This appeal pertains to the Social Security Administration’s finding that Diana Booth was

not disabled between November 29, 2011 and December 23, 2013. Booth’s first application for
disability benefits, filed in February 2012, claimed an onset date of November 29, 2011. Tr. 170.
She alleged disability due to the following impairments: herniated and bulging discs due to a back
injury, injury to her left arm or shoulder, chronic fatigue syndrome and attention deficit disorder
due to her chronic fatigue syndrome, generalized anxiety disorder, depression, panic attacks,
fibromyalgia, chronic pain and chronic insomnia. Tr. 198. The ALJ issued an unfavorable
decision on December 23, 2013, which Booth appealed. Tr. 14–33. The Court reversed and
remanded the ALJ’s decision Tr. 692–709; see Booth v. Colvin, No. 15-410-NLK, 2016 WL
632621 (W.D. Mo. Feb. 17, 2016). While her appeal was pending before this Court, Booth filed

a new claim for benefits, relating to a later period, and a different ALJ found that Booth had a
disability as of December 24, 2013. Tr. 759–73.
When reversing the original ALJ’s decision, the Court directed the ALJ to reevaluate the
opinion evidence of Dr. Box, the treating physician, and if the ALJ still decided not to afford Dr.
Box’s opinion controlling or substantial weight, the ALJ had explain why. Tr. 707. The Court
also found that the ALJ erred by failing to consider Booth’s chronic fatigue. Tr. 708.
On remand, the ALJ concluded that during the closed period—between November 2011
and December 23, 2013—Booth had multiple severe impairments, including fibromyalgia,
degenerative disc disease, impingement of the left shoulder, and major depressive disorder, but
that Booth did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
Tr. 624–26. The ALJ found that Booth
had the residual functional capacity to perform sedentary work . . . . [Booth] could
sit for 6 hours out of 8 hours; and she could stand and walk in combination for 2
hours out of 8 hours. [Booth] had to have the ability to shift positions hourly
without leaving her duty station. She could lift, carry, push, or pull negligible
weights, such as files or documents, weighing up to 5 pounds frequently and up to
an including 10 pounds occasionally. However, [Booth] could never lift, carry,
push, pull, or reach above shoulder level with her left upper extremity. She could
never climb ladders, ropes, or scaffolding. [Booth] could occasionally climb stairs
or ramps; stoop; kneel; crouch; and crawl.
[Booth] had to have an indoor work environment. She could never be exposed to
extreme cold, extreme hear; wetness; humidity; or noxious fumes, odors, dust, or
airborne particulate. She could never be exposed to vibration or to hazards, such
as dangerous machinery and unprotected heights.
Mentally, [Booth] required duties that were simple, repetitive, and routine in nature.
She could never be expected to exercise independent judgment regarding the nature
of her job duties. These duties had to be consistently the same with little or no
change. Additionally, the duties had to be low stress in nature, defined as never
having duties that require piecework or commission sales. [Booth] could never
travel except to and from one primary job site.

2

Tr. 627. Based on testimony from a vocational expert, the ALJ concluded that Booth could
perform jobs existing in significant numbers in the national and Missouri economy, including work
as a food/beverage order clerk, document preparer, and semi-conductor bonder, and therefore is
not disabled. Tr. 633.
II.

Legal Standard
In reviewing the Commissioner’s denial of benefits, the Court considers whether

“substantial evidence in the record as a whole supports the ALJ’s decision.” Milam v. Colvin, 794
F.3d 978, 983 (8th Cir. 2015). “Substantial evidence” is less than a preponderance but enough that
a reasonable mind would find it adequate to support the ALJ’s conclusion. Id. The Court must
consider evidence that both supports and detracts from the ALJ’s decision. Id. “[A]s long as
substantial evidence in the record supports the Commissioner’s decision, [the Court] may not
reverse it.” Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015) (citation omitted). The Court
must “defer heavily to the findings and conclusions of the Social Security Administration.” Michel
v. Colvin, 640 F. App’x 585, 592 (8th Cir. 2016) (quotation marks and citations omitted).
III.

Discussion
Booth challenges the sufficiency of the ALJ’s RFC determination based on the ALJ’s

failure to properly consider the opinion of Booth’s treating rheumatologist, Dr. Box. Dr. Box’s
Physical Capacities Evaluation advised that although Booth could use her hands and feet, she
should be limited to 30 minutes for repetitive foot controls and pushing or pulling more than
minimal weight. Tr. 71. Dr. Box thought that Booth could never lift or carry over 20 pounds, and
could never stoop, kneel, crouch or crawl, but could occasionally climb, balance and reach above
her shoulders. Tr. 572. According to Dr. Box, Booth also needed opportunities to alternate sitting
and standing, and that she could sit for no more than four hours and stand or walk for no more than

3

one hour in an eight-hour day. Tr. 571. Dr. Box also advised that the severity of Booth’s fatigue
and pain precluded even unskilled, work-related tasks. Tr. 572–76.
The ALJ afforded “partial weight” to Dr. Box’s opinion. In accordance with Dr. Box’s
opinion, the ALJ concluded that fibromyalgia was among Booth’s severe impairments. Tr. 624.
She also stated that Booth needed to be able to shift positions hourly. Tr. 627. The ALJ partially
incorporated Dr. Box’s opinion regarding Booth’s fatigue, finding that Booth could perform only
sedentary work with additional restrictions on physical exertion. Id. But the ALJ found that other
parts of Dr. Box’s opinion—that Booth was disabled and could not work a total of eight hours, and
that her pain and fatigue were so severe that they precluded full-time work—to be “generally
inconsistent with the record . . . inconsistent with the opinions of the medical expert at the hearing,
as well as the substantive evidence of the record, [and] simply not well supported by medically
acceptable clinical and laboratory diagnostic techniques.” Tr. 630–31. The ALJ also stated that
to the extent that Dr. Box’s opinion touched issues reserved to the Commissioner, Dr. Box’s
opinion was not entitled to controlling weight. Tr. 631.
A Residual functional capacity (RFC) is the most a claimant can still do despite her
limitations. 20 C.F.R. § 404.1545(a)(1). It must be supported by substantial evidence, and include
at least some medical evidence. Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000). However,
“[e]ven though the RFC assessment draws from medical sources for support, it is ultimately an
administrative determination reserved to the Commissioner.” Perkins v. Astrue, 687 F.3d 1086,
1092 (8th Cir. 2012)) (citation omitted); accord 20 C.F.R. § 416.927(d). “[T]he claimant bears
the burden of proving disability and providing medical evidence as to the existence and severity
of an impairment.” Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013).

4

With respect to the weight given medical source opinions, an ALJ must give controlling
weight to a treating medical source’s opinion regarding the nature and severity of an impairment
if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and
is not inconsistent with the other substantial evidence. Papesh v. Colvin, 786 F.3d 1126, 1132 (8th
Cir. 2015). However, a treating source’s opinion “does not automatically control or obviate the
need to evaluate the record as a whole.” Nowling v. Colvin, 813 F.3d 1110, 1122–23 (8th Cir.
2016) (quoting Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015)). A treating medical source
opinion may be given “limited weight if it provides conclusory statements only, or is inconsistent
with the record.” Papesh, 786 F.3d at 1132. For example, “a conclusory checkbox form has little
evidentiary value when it ‘cites no medical evidence, and provides little to no elaboration.’”
Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012) (citations omitted). Regardless of the ALJ’s
conclusion, the ALJ must “always give good reasons for the weight afforded to a treating
physician’s evaluation.” Nowling, 813 F.3d at 1123 (citation omitted).
The Physical Capacities Evaluation submitted by Dr. Box for this closed period was one
of the “checkbox” variety. Beyond modifying his affirmative checks regarding Booth’s ability to
push and pull or use her feet for repetitive movements with 30 minute time limits, Tr. 571, and
filling in his diagnoses, the only explanation Dr. Box provided was that Booth “[h]as fibromyalgia.
This condition is characterized by hypersensitivity and pain from simple activities and stimulus.”
Tr. 573. In answering whether her pain or fatigue “is disabling to the extent that it prevents the
patient from working full time, even in a sedentary position,” Dr. Box checked “yes.” Tr. 572–75.
Given the conclusory nature of the opinion and the lack of detail, the ALJ looked for support in
the medical records. See Anderson, 696 F.3d at 793–94 (finding ALJ properly examined treatment
notes when opinion was conclusory checkbox form).

5

Dr. Box’s notes reflect that he consistently recommended exercise in response to Booth’s
complaints of pain and fatigue through 2012 and 2013. Tr. 509 (“I encouraged her to try to increase
her level of exercise [in March 2012].”); Tr. 550 (“I have encouraged her to try to keep up with
regular exercise [in October 2012]”); Tr. 590 (“She does need to keep up with regular activity. . .
. I have encouraged her to try to keep up with regular stretching and gentle exercise [in May
2013].”); Tr. 601 (“I have encouraged her to try to keep up with regular exercise and work on
stress control [in July 2013].”). Other doctors made similar recommendations with respect to
Booth’s back pain. Tr. 424 (“Continue Home Exercise Program.”); Tr. 405 (“My advice to her
was to get more physically active”). The ALJ concluded that Booth’s non-compliance with Dr.
Box’s treatment advice “weighs against her complaints.” Tr. 628. “A claimant's noncompliance
can constitute evidence that is inconsistent with a treating physician's medical opinion and,
therefore, can be considered in determining whether to give that opinion controlling weight.”
Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (citation omitted).
The ALJ also found that the Workers’ Compensation records did not support the severity
of pain alleged.1 Tr. 629. After a fall at work in February 2011, Booth was released to work, first
with some restrictions, and then to regular duty a week later. Tr. 287, 290. Multiple examinations
and MRIs during and following that injury showed only mild or minimal injury in her lower back
and a full range of motion. Tr. 317, 368, 433, 437, 602–05, 625. A March 2012 functional capacity
evaluation further revealed that Booth could lift over 60 pounds despite indications that she made
an “invalid effort.” Tr. 422.

1

Recognizing that the standards differ from those used by the Social Security Administration,
the ALJ afforded this evidence partial weight. Tr. 631.
6

Given that the “symptoms [of fibromyalgia] are entirely subjective,” Tilley v. Astrue, 580
F.3d 675, 681 (8th Cir. 2009), the ALJ continued to assess Booth’s credibility regarding the
intensity and persistence of her symptoms. In finding that Booth was more “physically and
mentally capable than alleged,” the ALJ highlighted that Booth had enrolled in online college
courses in 2012 and that she applied and interviewed for jobs during the period under
consideration. Tr. 630. Booth’s “job search undermines [her] claim that [s]he was unable to
work.” Melton v. Apfel, 181 F.3d 939, 942 (8th Cir. 1999). The fact that Booth also claimed
unemployment benefits, beginning in November 2011 and continuing for about one year,
corroborates the ALJ’s suspicion that Booth even believed that she was not disabled for at least
some of the closed period. Tr. 41. “In order to be eligible for unemployment benefits, [Booth]
was required to sign documents stating that [she] was capable of working and seeking work[, a]
statement . . . clearly inconsistent with [her] claim of disability during the same period. Barrett v.
Shalala, 38 F.3d 1019, 1024 (8th Cir. 1994); accord Grable v. Colvin, 770 F.3d 1196, 1202 (8th
Cir. 2014) (finding that collection of unemployment benefits undermines the credibility of
claimant).
Finally, the ALJ also noted that some of the symptoms or complaints discussed at the
hearing after the case was remanded were not originally claimed or present during the closed
period. Specifically, the ALJ noted that Booth did not seek treatment for headaches and sore
throats prior to 2014, and that her home health care did not start until May 2014. Tr. 628.
In sum, there was substantial evidence to support the ALJ’s conclusion that Dr. Box’s
opinion was only entitled to partial weight. Although the record as a whole could have supported
a different finding, the district court’s role is to determine whether substantial evidence supports
the ALJ’s decision, not whether the district court itself would have come to the same conclusion.

7

See Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000) (“We may not reverse the Commissioner's
decision merely because substantial evidence supports a contrary outcome.”). Having found that
the ALJ both adequately explained her decision and arrived at a conclusion that is supported by
the record, the Court must defer to the Commissioner and affirm the ALJ’s decision.
IV.

Conclusion
For the reasons stated above, the ALJ’s determination is affirmed.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: January 17, 2019
Jefferson City, Missouri

8