Decker

Filing 6

ORDER - The Commissioner's decision is affirmed. Signed on 11/30/11 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
TOMMY DWAYNE DECKER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No. 11-3115-CV-S-DGK-SSA

ORDER AFFIRMING COMMISSIONER’S DECISION
Plaintiff Tommy Dwayne Decker seeks judicial review of the Commissioner’s denial of
his application for disability insurance benefits under Title II of the Social Security Act (“the
Act”), 42. U.S.C. § 401, et seq., and his application for supplemental security income (“SSI”)
benefits under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. 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).
Decker alleges he became disabled as of May 23, 2006 and is therefore unable to engage
in substantial gainful employment as a matter of law. After independent review of the record,
carefully considering the arguments set forth by the parties, the Court finds the Commissioner’s
decision denying disability and SSI benefits 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.

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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 consistent
with the Social Security Act, the relevant case law, and the regulations, and whether they are
supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); McKinney v.
Apfel, 228 F.3d 860, 863 (8th Cir. 2000). Substantial evidence is less than a preponderance, but
it is “enough that a reasonable mind would find it adequate to support the ALJ’s decision.” Id.
In making this determination, the court considers evidence that detracts from the
Commissioner’s decision as well as evidence that supports it. Id. If substantial evidence in the
record supports the Commissioner’s decision, the court may not reverse because substantial
evidence in the records supports a contrary result or because the court may have decided the case
differently. Id.
Discussion
To establish entitlement to benefits, Plaintiff must show that he is unable to engage in any
substantial gainful activity by reason of a medically determinable impairment that has lasted or
can be expected to last for a continuous period of no less than 12 months. 42 U.S.C. §§ 423(d)
and 1382(a)(3)(A). To determine a claimant’s eligibility for SSI, the Commissioner employs a
five-step evaluation process.1 See 20 C.F.R. §§ 404.1520(a) and 416.920(a).

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There is a five-step process for determining eligibility. If the fact-finder determines at any step of the evaluation
process that the claimant is or is not disabled, the inquiry does not continue. The applicant bears the burden of
showing he is disabled from steps one through four of the process. King v. Astrue, 564 F.3d 978, 979 n.2 (8th Cir.
2009). At step five, the burden shifts to the Commissioner to show that there are other jobs in the economy that the
claimant can perform. Id. The steps proceed as follows: First, the Commissioner determines if the applicant is
currently engaged in substantial gainful activity. If so, the applicant 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 that has lasted or is expected to last for a continuous 12-month period.
If not, the applicant is not disabled; if so, the inquiry continues. At step three, the Commissioner considers whether
the impairment or combination of impairments meets the criteria of any impairment listed 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

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In the instant case, the administrative law judge (“ALJ”) determined that Plaintiff did not
meet or equal the criteria of Listing § 1.04 and was, therefore, not disabled. The issues for
review are whether the ALJ’s determination that Plaintiff does not meet the criteria of Listing §
1.04 is supported by substantial evidence on the record and whether the ALJ properly discounted
Plaintiff’s credibility in assessing his RFC based on an evaluation of the evidence as a whole.
A. Substantial evidence of record supports the commissioner’s determination that
Plaintiff does not meet Listing § 1.04.
Plaintiff argues that the ALJ improperly found that his spinal condition did not meet or
equal the requirements of Listing § 1.04. Plaintiff contends he meets listing § 1.04 which
requires a spinal disorder resulting in nerve root or spinal cord damage. The spinal disorder must
also be accompanied by evidence of nerve root compression, limitation of spinal motion, motor
loss with sensory or reflex loss and, if there is involvement of the lower back, positive straightleg raising test. 20 C.F.R. pt. 404, subpt. P, App. 1, § 1.04. Plaintiff maintains that his medical
records establish that he meets these requirements: a May 2005 MRI of the lumbar spine
revealed an extruded disc with a free fragment involving the nerve root, a bulging annulus, and
stenosis, and he tested positive to straight leg raising on his left side. R. at 143, 156.
The ALJ’s determination here must be upheld. The burden is on the Plaintiff to show,
through medical evidence, that his impairment “meet[s] all of the specified medical criteria.”
Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Although Plaintiff cites specific medical findings
as evidence that he meets the criteria for Listing § 1.04, there is substantial evidence on the
record as a whole supporting the ALJ’s finding that Plaintiff “does not have an impairment or

Commissioner considers if the applicant’s residual functional capacity 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 residual functional capacity, 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, 564 F.3d at 979 n.2.

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combination of impairments that meets or medically equals one of the listed impairments.” R. at
12.
First, Plaintiff alleges that a May 2005 MRI showed spinal cord and nerve root damage.
However, the radiologist’s specific findings were that Plaintiff had an extruded disc which
“should probably involve the left L2 nerve root, and possibly, the L3 root as well.” R. at 143.
These “probable” or “possible” findings, however, are not sufficient to establish compromise of
the nerve root or spinal cord as required by Listing § 1.04. See 20 C.F.R. pt 404, subpt. P, app.
1, § 1.04. In addition, Plaintiff maintains that the ALJ failed to properly consider the results of
his positive straight leg testing on the left in mid-May 2005. Prior to and since that time,
however, Plaintiff has undergone many other straight leg raising tests. For example, physical
examinations in April and early May 2005 and February and March of 2006 revealed negative
straight leg testing results. Plaintiff’s most recent straight leg test was negative in October 2008.
Thus, the record shows only two notations of positive straight leg testing on Plaintiff’s left side
only, as opposed to bilaterally as required by the Listing. Additionally, Plaintiff’s positive
results occurred prior to Plaintiff’s alleged date of onset; subsequent to the alleged date of onset,
there have been multiple negative findings. Accordingly, the evidence is insufficient to meet
Plaintiff’s burden of demonstrating that he meets the criteria of Listing § 1.04, and the Court
must affirm the ALJ’s decision.
Plaintiff also argues that the ALJ failed to properly discuss whether the evidence
warranted a finding that Plaintiff had the medical equivalence of a listed impairment. Where an
individual has a medically determinable impairment that is not listed or fails to meet the
requirements of a listing, an ALJ must sometimes consider whether Plaintiff has the medical
equivalence of a listed impairment. There are only three situations, however, in which the

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agency will find a medical equivalence: 1) where an individual has a listed impairment but does
not exhibit one or more of the findings in the particular listing; 2) where an individual has an
impairment that is not described but is closely analogous to a listed impairment; and 3) where an
individual has a combination of impairments, no one of which meets a listing, but is closely
analogous to a listed impairment. 20 C.F.R. §§ 404.1526(b), 416.926(b). To satisfy its burden,
however, Plaintiff must do more than simply allege that his condition was medically equivalent
to the Listing § 1.04 criteria.

Here, Plaintiff fails to cite medical findings sufficient to

demonstrate that his impairment equals the criteria of any listed impairment. Accordingly, the
Court finds that the ALJ properly determined that Plaintiff did not have an impairment or
combination of impairments that met or equaled the requirements of any listed impairment.
B. The ALJ properly assessed Plaintiff’s credibility.
Plaintiff also asserts that the ALJ did not properly assess his credibility, fully considering
the Polaski factors, particularly with regard to Plaintiff’s subjective complaints of pain. Polaski
v. Heckler, 739 F.2d 1320 (8th Cir. 1984). When assessing a claimant’s credibility, “the ALJ
must look to the claimant’s daily activities; the duration, frequency, and intensity of pain;
precipitating and aggravating factors; dosage, effectiveness, and side effects of medication; and
functional restrictions.” Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008) (citing Polaski, 739
F.2d at 1322). Credibility determinations are generally the province of the ALJ, and courts will
defer to an ALJ’s explicit credibility determination when it is supported by “a good reason.”
Finch, 547 F.3d at 935. The primary question is whether a Plaintiff’s subjective complaints of
pain are credible to the extent that they prevent the Plaintiff from performing substantial gainful
activity. Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001).

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Here, the ALJ properly articulated inconsistencies in the record upon which he relied in
discrediting Plaintiff’s subjective complaints of pain. For example, the ALJ found that medical
evidence showed the Plaintiff suffered from severe impairments of lumbar spine degenerative
disc disease and cervical spine degenerative disc disease. R. at 12-19. However, the ALJ did not
find that Plaintiff had severe symptoms that rendered him unable to work. Id. Dr. Koprivica, for
instance, noted that Plaintiff’s history of self-limitation was greater than what was appropriate
based on the structural findings of his two MRI scans. R. at 367. Dr. Corsolini found that
Plaintiff’s lumbar disc abnormalities “[w]ere not severe enough to call for surgical treatment.”
R. at 328.

In addition, the record shows that Plaintiff sought medical treatment only

sporadically, and rarely after 2006. Between March 2006 and August 2008, in fact, Plaintiff
visited a doctor only a handful of times. R. at 245-64, 326-40.

Appropriately, no medical

provider imposed restrictions on Plaintiff’s ability to work that are inconsistent with the ALJ’s
assigned RFC.
Additionally, Plaintiff did not take strong pain medication to control his symptoms and
reported improvement at various times with physical therapy and lumbar steroid injections. R. at
180, 194, 235-36, 250. See Goodale v. Halter, 257 F.3d 771, 774 (8th Cir. 2001) (noting that an
ALJ may reasonably discredit a claimant’s testimony about disabling pain when the claimant
takes nothing stronger than over-the-counter medicine); see also Davidson v. Astrue, 578 F.3d
838, 846 (8th Cir. 2009) (“Impairments that are controllable or amenable to treatment do not
support a finding of disability.”).
The ALJ also considered Plaintiff’s daily living activities, finding that they were not as
limited as one might expect with such severe complaints of disabling pain.

Plaintiff, for

example, reported that he was able to grocery shop, prepare dinner, drive a car, and occasionally

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help with laundry. R. at 30, 35. Dr. Volarich indicated that Plaintiff could perform self-care
activities. R. at 15, 352. Davis v. Apfel, 239 F.3d 962, 967 (8th Cir. 2001) (“Allegations of pain
may be discredited by evidence of daily activities inconsistent with such allegations.”). The ALJ
also properly took into consideration Dr. Kopriva’s statement that Plaintiff’s complaints were a
“significant exaggeration of the underlying physical impairment.” R. at 16, 364.
Finally, the ALJ properly noted Plaintiff’s history of applying for work, suggesting an
ability to perform work, and receipt of unemployment compensation, suggesting that Plaintiff
held himself as available, willing, and able to work. R. at 15-16, 28, 366. Accordingly, based on
Plaintiff’s inconsistencies, lack of medical support, relatively conservative treatment history,
daily living activities, and employment history, the Court defers to the ALJ’s credibility
assessment.
Conclusion
After careful examination of the record as a whole, the Court finds the Commissioner’s
determination is supported by substantial evidence on the record.

Accordingly, the

Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
Date: November 30, 2011

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

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