Aborn v. Colvin

Filing 9

ORDER AFFIRMING Commissioner's decision denying benefits. Signed on 9/19/16 by District Judge M. Douglas Harpool. (View, Pat)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
SHAUNA ABORN,
Plaintiff,
vs.
CAROLYN W. COLVIN
Acting Commissioner of Social Security,
Defendant.

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Case No. 15-06057-MDH

ORDER
Before the Court is Plaintiff’s appeal of the Commissioner’s denial of her application for
Disability Insurance Benefits and Supplemental Security Income. The Administrative Law Judge
denied Plaintiff’s claims and the Appeals Counsel subsequently denied Plaintiff’s request for
review of the ALJ’s determination. Therefore, Plaintiff has exhausted her administrative
remedies and the matter is now ripe for judicial review. The Court reviews the Commissioner’s
final decision pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g).
STANDARD OF REVIEW
The Court’s role in reviewing an ALJ’s decision is to determine whether the “findings are
supported by substantial evidence in the record as a whole.” Page v. Astrue, 484 F.3d 1040,
1042-43 (8th Cir. 2007) (citing Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir.1999)).
“Substantial evidence is relevant evidence which a reasonable mind would accept as adequate to
support the Commissioner’s conclusion.” Id. “The fact that some evidence may support a
conclusion opposite from that reached by the Commissioner does not alone permit our reversal
of the Commissioner’s decision.” Id. (citing Kelley v. Barnhart, 372 F.3d 958, 961 (8th Cir.
2004)); Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007). If the record contains substantial

evidence to support the Commissioner’s decision, the Court may not reverse the decision simply
because substantial evidence exists in the record that would have supported a contrary outcome.
Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). In other words, the Court cannot
reverse simply because it would have decided the case differently. Id. (citing Woolf v. Shalala, 3
F.3d 1210, 1213 (8th Cir. 1993)). Courts “defer heavily to the findings and conclusions of the
Social Security Administration” and will disturb the Commissioner’s decision only if it falls
outside the “zone of choice.” Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (internal
citations omitted). Further, the Court defers to the ALJ’s determinations of the credibility of
witness testimony, as long as the ALJ’s determinations are supported by good reasons and
substantial evidence. Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006).
ANALYSIS
The essence of Plaintiff’s assertion of error is that the ALJ improperly relied on the
opinions of non-examining, state agency physicians whose review of the medical records did not
include Plaintiff’s most recent medical records. Plaintiff had multiple visits to clinics and a visit
to the hospital in the period following the evaluations performed by the state agency physicians.
Although the ALJ examined and considered these records, finding them to be consistent with the
findings of the earlier examinations, Plaintiff claims that these later records demonstrate Plaintiff
was more limited than the Residual Functional Capacity found by the ALJ. Thus, Plaintiff claims
the ALJ’s RFC is not supported by substantial evidence in the record.
The Court has thoroughly reviewed the administrative record on appeal, including the
medical records, hearing testimony, and the ALJ’s opinion. The Court concludes that the ALJ’s
determination is supported by substantial evidence in the record as a whole and was within the
available “zone of choice.” Buckner, 646 F.3d at 556.

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The ALJ concluded that Plaintiff suffered from the severe impairments of degenerative
disc disease and obesity. (Tr. 15). The ALJ found the following Residual Functional Capacity for
Plaintiff:
[Plaintiff] has the residual functional capacity to lift and carry twenty pounds
occasionally and ten pounds frequently. She can stand or walk for up two hours
and sit for up to six hours in an eight-hour workday. She cannot climb ladders,,
ropes and scaffolds but can occasionally climb ramps and stairs. She can
occasionally balance, stoop, kneel, crouch or crawl. She must avoid all
unprotected heights and hazardous machinery.
(Tr. 18).
An ALJ must base the RFC on all of the relevant evidence in the record. Hutsell v.
Massanari, 259 F.3d 707, 711 (8th Cir. 2001). “[S]ome medical evidence” must support the RFC
finding. Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001).
Plaintiff claims the RFC is not supported by substantial evidence because the ALJ gave
great weight to the opinions of two non-examining physicians, and the opinions of those
physicians “failed to address the severity of the findings in the lumbar MRI and also did not have
access to substantial evidence submitted after the opinion concerning another year and a half of
treatment.” (Pl.’s Br. 13). Plaintiff had an MRI on April 6, 2012, which showed:
L5 bilateral spondylysis with grade 1 anterolistheses L5 on S1 and moderate to
severe secondary degenerative disc disease with mild lateral recess and moderate
to severe bilateral neural foraminal narrowing which may have been impinging
upon either of the exiting L5 nerve roots. Otherwise moderate to severe multilevel
degenerative disc disease with levels of mild central canal and moderate to severe
neural foraminal narrowing as described with possible impingement of any of the
exiting nerve roots at L2-L3 and below.
(Tr. 435). Plaintiff claims the non-examining physician “ignored the severe findings in the
lumbar MRI as a contributing factor to [Plaintiff’s] severe limitations.” (Pl.’s Br. 13). This is not
accurate. Dr. Trowbridge, the initial physician, noted that there were “reported results of [an]
MRI from 4/6/2012 with multilevel disc desiccation with anterolisthesis of L5 on S1 resulting in
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some bilateral neural foraminal narrowing causing nerve root impingement; also, central canal
stenosis multiple levels.” (Tr. 63). Dr. Rees reviewed the same evidence and noted, “MRI of
lumbar spine reveals disc desiccation L5-S1. [Range of motion] in the lumbar spine decreased.
On 5/1/12 during the [physical exam] there was tenderness to palpation in the lower back with
decreased [range of motion].” (Tr. 406). Dr. Trowbridge concluded that Plaintiff could
occasionally lift/carry twenty pounds, frequently lift/carry ten pounds, stand/walk for up to two
hours with normal breaks, and sit for about six hours with normal breaks. (Tr. 65-66). Dr.
Trowbridge took into consideration the fact that Plaintiff “is exertionally limited by back and
rectal pain.” (Tr. 66). Dr. Rees concluded that “the medical evidence in file does not support a
more limiting RFC than the one [recommended by Dr. Trowbridge].” (Tr. 407). Thus, it cannot
be said that the physicians failed to take the results of Plaintiff’s MRI into account.
Plaintiff also claims error on the basis that the opinions of Drs. Trowbridge and Rees did
not include an examination of later medical records. Dr. Trowbridge’s opinion was provided in
July of 2012. Dr. Rees examined the same records as Dr. Trowbridge in her October 2012
analysis. Plaintiff provided medical records through August 2013. Plaintiff claims these
additional records demonstrate she was more limited than the RFC recommended by the doctors
and ultimately found by the ALJ. Plaintiff argues that the ALJ erred in not having a consultative
examination performed in light of these records.
While the ALJ has a duty to fully and fairly develop the record, it is the Plaintiff’s burden
to prove the RFC. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). “The ALJ is required
to order medical examinations and tests only if the medical records presented to him do not give
sufficient medical evidence to determine whether the claimant is disabled.” McCoy v. Astrue,
648 F.3d 605, 612 (8th Cir. 2011).

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Plaintiff submitted numerous additional medical records, but provided no opinions from
her doctors regarding her exertional capabilities. While the ALJ has a duty to develop the record
if there is insufficient information to make a determination, a Plaintiff is not relieved of their
burden to prove disability. The failure to provide a medical opinion is not a basis for rejecting
Plaintiff’s argument. However, the Court will not find error in the ALJ’s RFC merely because
the later medical records might be open to multiple interpretations.
In this case, it does not appear that the records are open to multiple interpretations. The
ALJ concluded the later-received medical records “support [the] doctors’ findings. In fact, the
additional evidence includes examination findings which show improvement” in Plaintiff’s
condition. (Tr. 21). Following its own examination of these records, the Court agrees with the
ALJ’s characterization of the medical records relating to the period after April 2012.
First, it is worth noting that the ALJ methodically and thoroughly discredited Plaintiff’s
subjective claims of limitation. The Court will not disturb those findings, as they are supported
by valid, clearly articulated reasons. Karlix v. Barnhart, 457 F.3d 742, 748 (8th Cir. 2006).
Plaintiff claims her back condition causes her pain when she sits for more than 15-20 minutes or
stands for more than 15 minutes, and that she must spend 20 hours of each day in bed to relieve
her pain. Notably, two doctors indicated that Plaintiff presented with Waddell’s signs. (Tr. 36364). Additionally, during the period where Plaintiff claims her condition worsened, Plaintiff had
gone mushroom hunting and also jumped off the back of a pickup truck. (Tr. 415, 447). Plaintiff
was fired from the pain clinic due to positive urine test for methamphetamine. (Tr. 413). Finally,
according to the notes of one of her treatment providers, Plaintiff indicated that “she would like
to achieve disability and move in permanently with her mother/grandmother where she can assist
them.” (Tr. 431).

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Second, the Court agrees with the ALJ’s conclusion that Plaintiff’s medical records are
generally consistent with the opinions of Drs. Trowbridge and Rees, and that there are
indications her condition improved during that time. (Tr. 21). As of March 2013, her straight leg
raises were negative and she had full range of motion in her hips and knees. (Tr. 419). In May
2013, she went mushroom hunting. (Tr. 415). As of July 2013, her straight leg raises remained
negative, and Dr. Stuber indicated that he “was unable to give pain meds under the
circumstances,” even though Plaintiff “really wanted pain relief.” (Tr. 414). On July 23, 2013,
Plaintiff went to the emergency room after an apparent fall – the doctor’s note indicates she
jumped off the back of her pickup truck – but she had painless range of motion in her back,
normal range of motion in her extremities, and was not in distress. (Tr. 447-48). On August 3,
2013, Plaintiff went to another emergency room after she said she fell six days earlier, but she
was found to not be in acute distress. (Tr. 441).
The ALJ provided a thorough examination of the medical records and Plaintiff’s
credibility. While an argument can be made that the most prudent course of action would be to
order a consultative examination in light of a large quantity of additional medical records, the
Court does not believe the ALJ failed to uphold her duty in this case. No consultative
examination was necessary to allow the ALJ to make a finding. The additional medical records
show a brief period during which Plaintiff’s condition slightly worsened in August and
November 2012, but her condition consistently improved thereafter. Additionally, Plaintiff’s
credibility was severely hindered by her statements to her treatment providers and by her
activities, some of which demonstrate that the ALJ was well within her zone of choice to
conclude that Plaintiff’s condition improved when Plaintiff claims it worsened. Thus, the Court

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concludes that the ALJ’s determination was within her zone of choice, and the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
CONCLUSION
For the reasons set forth herein, the Court finds there is substantial evidence on the record
as a whole to support the ALJ’s determination. Accordingly, the Commissioner’s decision
denying benefits is AFFIRMED.
IT IS SO ORDERED:
Date: September 19, 2016
/s/ Douglas Harpool_____________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE

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