Truster v. Astrue

Filing 17

ORDER - The Commissioner's decision is affirmed. Signed on 9/27/11 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
GLADYS D. TRUSTER,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

No. 6:10-3204-DGK-SSA

ORDER AFFIRMING COMMISSIONER’S DECISION
Plaintiff Gladys D. Truster seeks judicial review of the Commissioner of Social
Security’s denial of her application for supplemental security income (“SSI”) benefits based on
disability under Title XVI of the Social Security Act (“the Act”), of the Act, 42 U.S.C. §§ 1381a1383. Plaintiff has exhausted all of her administrative remedies and judicial review is now
appropriate under 42 U.S.C. § 1383(c)(3).
After careful review of the record, the Court holds the administrative law judge’s (“ALJ”)
decision is supported by substantial evidence on the record, and 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.
Standard of Review
A federal court’s review of the Commissioner of Social Security’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. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.

2000). Substantial evidence is less than a preponderance, but enough evidence that a reasonable
mind would find it sufficient to support the Commissioner’s conclusion. 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 may not reverse the Commissioner’s decision as long
as substantial evidence in the records supports this decision, even if substantial evidence in the
record also supports a different result, or if the court might have decided the case differently
were it the initial finder of fact. Id.
Analysis
Generally a federal court’s review of the Commissioner’s decision to deny an application
for SSI benefits is restricted to determining whether the Commissioner’s decision is consistent
with the Social Security Act, the regulations, and applicable case law, and whether the findings
of fact are supported by substantial evidence on the record as a whole. In determining whether a
claimant is disabled, the Commissioner follows a five-step evaluation process.1
Plaintiff alleges her disability began on August 19, 2004, at age 34, due to kidney cancer
and back problems.

Plaintiff argues the ALJ (1) failed to consider the effects of certain

impairments in combination; (2) failed to properly develop the record with respect to her RFC;
(3) failed to properly weigh the collective impact of Plaintiff’s non-severe impairments on her

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The five-step process works as follows: First, the Commissioner determines if the applicant is currently engaged
in substantial gainful activity. If so, he is not disabled; if not, the inquiry continues. At step two the Commissioner
determines if the applicant has a “severe medically determinable physical or mental impairment” or a combination
of impairments. If so, and they meet the durational requirement of having lasted or being expected to last for a
continuous 12-month period, the inquiry continues; if not, the applicant is considered not disabled. At step three the
Commissioner considers whether the impairment is one of specific listing of impairments in Appendix 1 of 20
C.F.R. § 404.1520. If so, the applicant is considered disabled; if not, the inquiry continues. At step four the
Commissioner considers if the applicant’s residual functional capacity (“RFC”) allows the applicant to perform past
relevant work. If so, the applicant is not disabled; if not, the inquiry continues. At step five the Commissioner
considers whether, in light of the applicant’s age, education and work experience, the applicant can perform any
other kind of work. 20 C.F.R. § 404.1520(a)(4)(i)-(v) (2009); King v. Astrue, 564 F.3d 978, 979 n.2 (8th Cir. 2009).
Through step four of the analysis the claimant bears the 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, 564 F.3d at 979 n.2.

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residual functional capacity (“RFC”); (4) failed to properly credit her subjective complaints of
pain; and (5) failed to pose a hypothetical to the vocational expert (“VE”) that properly
accounted for her limitations. The Court finds these arguments are without merit.
A.

The ALJ considered Plaintiff’s headaches, depression, anxiety, fibromyalgia, and

panic attacks in combination.
Plaintiff first argues that the ALJ erred in failing to find that her non-severe impairments
in combination were a severe impairment. Pl.’s Br. at 5, 9, 12-13. It is clear from the record that
the ALJ considered Plaintiff’s impairments in combination but simply used different names to
discuss them in his decision.

The ALJ wrote in his decision that Plaintiff had a “severe

combination of impairments: low back pain status post fusion, adjustment disorder and pain
disorder.” R. at 17. It is clear that by “adjustment disorder” the ALJ meant depression, anxiety,
and panic attacks, borrowing this terminology from Dr. John Essman, Psy. D., who used this
language to describe Plaintiff’s impairments. R. at 259-262, 266. It is also clear that by “pain
disorder” the ALJ was referring to Plaintiff’s fibromyalgia and headaches; this understanding is
supported by the treatment records which discuss Plaintiff’s fibromyalgia and headaches as
components of her overall pain complaints. R. at 304, 335, 373, 381, 416, 432, 436, 444, 575,
591, 601. Consequently the ALJ did consider these impairments in combination and there is no
error here.
B.

The ALJ fairly developed the record with respect to Plaintiff’s RFC.
Plaintiff argues the ALJ did not fully and fairly develop the record because she “has had

limited medical care for her mental impairments, yet, the ALJ did not send her for an evaluation
which would be vital in assessing” her RFC. Pl.’s Br. at 11. The ALJ is required to order
medical examinations and tests only if there is insufficient evidence in the record to make a

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decision. See Barrett v. Shalala, 38 F.3d 1019, at 1023 (8th Cir. 1994); Halverson v. Astrue, 600
F.3d 922, 933 (8th Cir. 2010) (holding that ordering a consultative evaluation is not necessary
where the medical evidence, claimant’s statements, and other evidence provides substantial
evidence supporting a determination that the claimant was not disabled). In the present case,
there was simply no reason for the ALJ to order additional testing; the record supports the ALJ’s
finding that Plaintiff’s ability to work was only minimally impacted by her mental health
problems.

In February of 2007, Plaintiff reported to Dr. Legg that she was “having no

depression,” was “less irritable,” and was “not worrying as much.”

Plaintiff herself

acknowledged to the ALJ that she had not had any mental health treatment in about a “year and a
half/two years,” a fact which is relevant in determining a plaintiff’s mental condition. See
Williams v. Sullivan, 960 F.2d 86, 89 (8th Cir. 1992). Even if there were some reason for the
ALJ to order additional testing, reversal for failure to develop the record is warranted only when
such failure is unfair or prejudicial. Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993).
Plaintiff has not demonstrated she was prejudiced or treated unfairly here, therefore there is no
reason to reverse the Commissioner’s decision.
C.

Substantial evidence supports the ALJ’s findings with respect to Plaintiff’s RFC.
The Plaintiff also argues the ALJ failed to give proper weight to the collective impact of

Plaintiff’s non-severe impairments in determining her residual functional capacity (“RFC”).
Pl.’s Br. at 5-9. The Court finds substantial evidence on the record supports the ALJ’s RFC
determination. The ALJ found that Plaintiff had the RFC
to perform light work except she should not climb ladders, ropes,
or scaffolds; she can occasionally climb ramps or stairs and
occasionally kneel, crouch, or crawl, stoop and bend; she should
not work around unprotected heights; she should not perform
quota-type work; and she should have only superficial contact with
co-workers, supervisors, and the general public.

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R. at 18. Dr. Hershel Goren, a neurologist, testified that Plaintiff’s primary problem was back
pain, but that she could perform work consistent with the above limitations, R. at 650-652, and
his testimony is echoed in the RFC assessment completed by Dr. Van Kensey, D.O. R. at 28187. The record indicates that Plaintiff suffered from brief periods of mental problems that were
associated with situational stressors, thus the restrictions prohibiting Plaintiff from performing
quota-type work and limiting her to minimal contact with co-workers, supervisors and the public,
were ample and appropriate. R. at 329-330, 601, 587, 651, 630.
D.

Substantial evidence supports the ALJ’s evaluation of Plaintiff’s subjective

allegations.
Plaintiff also contends that the ALJ erred by failing to consider the medical records after
her back surgery and finding that she had no significant limitations in her daily activities. Pl.’s
Br. at 7, 10. She argues the record as a whole supports her testimony, which the ALJ discredited.
Pl.’s Br. at 11.
There is no merit to the assertions that the ALJ failed to consider Plaintiff’s medical
records after her back surgery or failed to consider that she still experienced pain after her back
surgery. The ALJ included low back pain and pain disorder in the list of the severe combination
of impairments, discussed Plaintiff’s continued pain, and relied on Dr. Goren’s opinion (who
noted Plaintiff experienced pain) in determining Plaintiff’s RFC. R. at 17-21. Far from ignoring
Plaintiff’s medical records in the wake of her back surgery, the ALJ relied on them.
Substantial evidence on the record also supports the ALJ’s credibility determination,
specifically her assessment of Plaintiff’s ability to perform normal daily activities. Questions
concerning a Plaintiff’s testimony are “primarily for the ALJ to decide, not the courts.” Baldwin
v. Barnhart, 349 F.3d 549, 558 (8th Cir. 2003). In analyzing a claimant’s subjective complaints

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of pain, the ALJ must consider the entire record, including the medical records, statements from
the plaintiff and third-parties, and the Polaski factors: (1) the claimant’s daily activities, (2) the
duration, frequency, and intensity of pain, (3) dosage, effectiveness, and side effects of
medication, (4) precipitating and aggravating factors, and (5) functional restrictions. 20 C.F.R.
§§ 404.1529, 416.929; Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When the ALJ
explicitly finds that the plaintiff’s testimony is not credible and gives good reasons for this
finding, courts should defer to the ALJ’s finding. Casey v. Astrue, 503 F.3d 687, 696 (8th Cir.
2007). Here the ALJ noted that Plaintiff testified she cared for her four daughters and exercised.
R. at 21. A physical therapist also observed Plaintiff could perform “many activities . . . without
increasing her pain,” and a doctor observed she could easily move around. R. at 364, 373, 62425.

The ALJ properly relied on these daily activities as a factor that detracted from the

credibility of Plaintiff’s allegations. See 20 C.F.R. § 416.929(c)(3). Because the ALJ gave good
reasons for finding Plaintiff’s statements not fully credible, and substantial evidence supports
this decision, there is no error here.
E.

The hypothetical question posed to the vocational expert properly accounted for

Plaintiff’s limitations.
Finally, Plaintiff argues that the hypothetical question posed to the vocational expert
(“VE”) by the ALJ did not precisely describe her impairments because it excluded limitations
due to headaches, anxiety/panic attacks, and pain.

As discussed above, the ALJ’s RFC

determinations are supported by substantial evidence on the record. An RFC assessment must
identify a claimant’s functional limitations and assess her work-related abilities on a function-by
function basis, which the ALJ’s determination did. Contrary to Plaintiff’s intimation, there is no

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requirement that the ALJ follow each limitation with a list of specific evidence or citation to the
record supporting that finding. See SSR 96-8p.
Here the ALJ found Plaintiff should not climb ladders, ropes, or scaffolds; she could
climb ramps or stairs and occasionally kneel, stoop and bend; she could not work around
unprotected heights; she could perform quota-type work; and she could have superficial contact
with co-workers, supervisors, and the general public. As discussed above, these limitations are
supported by substantial evidence on the record.

The RFC findings were included in the

hypothetical question posed to the VE, and the VE answered that Plaintiff could perform the
light, unskilled jobs of cashier, photocopy machine operator, and courier. R. at 660-61. Because
the question was properly formulated, the VE’s answer constitutes substantial evidence
supporting the Commissioner’s decision. See Gragg v. Astrue, 615 F.3d 932, 941 (8th Cir.
2010).
Conclusion
After careful examination of the record as a whole, the Court finds the ALJ’s
determination is supported by substantial evidence on the record, and the Commissioner’s
decision is AFFIRMED.
IT IS SO ORDERED.
Date: September 27, 2011

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

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