Williams v. Astrue
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on February 27, 2014 by Magistrate Judge Robert E. Larsen. (Haydon, William)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
LATOYYA LEE WILLIAMS,
CAROLYN COLVIN, Acting Commissioner )
of Social Security,
Case No. 6-12-CV-03561-REL-SSA
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Latoyya Lee Williams seeks review of the final decision of the Commissioner of
Social Security denying plaintiff’s application for supplemental security income benefits under
Title XVI of the Social Security Act (“the Act”). Plaintiff argues that the Administrative Law
Judge (ALJ) (1) failed to properly assess plaintiff’s residual functional capacity (RFC) and (2)
failed to conduct a proper credibility analysis. I find that the substantial evidence in the record as
a whole supports the ALJ’s conclusion that plaintiff is not disabled. Therefore, plaintiff’s motion
for summary judgment will be denied and the decision of the Commissioner will be affirmed.
On September 29, 2009, plaintiff protectively applied for supplemental security income
benefits alleging that she had been disabled since August 1, 2003 (Tr. 128-34). When she filed
her claim, plaintiff alleged disability due to a seizure disorder and a birth defect in her lower
spine (Tr. 172). Plaintiff’s application was denied on May 11, 2010 (Tr. 58-64). On September 6,
2011, a hearing was held before the ALJ (Tr. 24-46). On October 17, 2011, the ALJ found that
plaintiff was not under a disability as defined in the Act. (Tr. 8-23). On November 1, 2012, the
Appeals Council denied plaintiff’s request for review (Tr. 1-7). Therefore, the decision of the
ALJ stands as the final decision of the Commissioner.
STANDARD FOR JUDICIAL REVIEW
Sections 205(g) and 1631(c)(3) of the Act, 42 U.S.C. §§ 405(g) and 1383(c)(3),
respectively, provide for judicial review of a “final decision” of the Commissioner. The standard
for judicial review by the federal district court is whether the decision of the Commissioner was
supported by substantial evidence. 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir. 2000);
Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392
(8th Cir. 1996). The determination of whether the Commissioner’s decision is supported by
substantial evidence requires review of the entire record, considering the evidence in support of
and in opposition to the Commissioner’s decision. Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). “The Court must also
take into consideration the weight of the evidence in the record and apply a balancing test to
evidence which is contradictory.” Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing
Steadman v. Securities & Exchange Commission, 450 U.S. 91, 99 (1981)).
Substantial evidence means “more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the
substantial evidence standard presupposes a zone of choice within which the decision makers can
go either way, without interference by the courts. “[A]n administrative decision is not subject to
reversal merely because substantial evidence would have supported an opposite decision.” Id.;
Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving she is unable to
return to past relevant work by reason of a medically-determinable physical or mental
impairment which has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). If the plaintiff establishes that
she is unable to return to past relevant work because of the disability, the burden of persuasion
shifts to the Commissioner to establish that there is some other type of substantial gainful
activity in the national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853,
857 (8th Cir. 2000); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting out a
sequential evaluation process to determine whether a claimant is disabled. These regulations are
codified at 20 C.F.R. §§ 404.1501, et seq. and 416.901, et seq. The five-step sequential
evaluation process used by the Commissioner is outlined in 20 C.F.R. §§ 404.1520 and 416.920
and is summarized as follows:
Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
Does the claimant have a severe impairment or a combination of impairments
which significantly limits her ability to do basic work activities?
No = not disabled.
Yes = go to next step.
Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.
The record consists of the testimony of plaintiff and a vocational expert at the September
6, 2011 hearing, in addition to documentary evidence admitted at the hearing.
The record includes the following report showing plaintiff’s earnings for the years 2002
SUMMARY OF MEDICAL RECORDS
As summarized by plaintiff and defendant, the medical evidence reveals clinical signs
and laboratory findings of both physical and mental impairments.
SUMMARY OF TESTIMONY
At the September 6, 2011 hearing, testimony was taken from plaintiff and Jennifer Ann
Maginnis, M.S., a vocational expert (Tr. 121-22).
Plaintiff testified that she was 26 years old, weighed 110 pounds, stood 5’5” tall, and
has a high school education with one year of college (Tr. 26-27).
When questioned as to why she is unable to work, plaintiff reported her major problem
is a seizure disorder (Tr. 29-32). Plaintiff stated that her last seizure with loss of consciousness
was in March of 2011; however, plaintiff related that she also has seizure-like events that
cause her to “stare off into space,” but not lose consciousness, three-to-five times a day; the
staring spells last five to seven minutes; and she can resume activity if someone interrupts her
(Tr. 30, 41).
When questioned as to any other medical problems, plaintiff described back pain,
depression, and anxiety (Tr. 32-34).
Plaintiff stated that her daily activities include preparing simple meals, washing
laundry, reading, watching television, shopping for groceries once a month, and occasionally
walking to the end of her street (Tr. 35-37).
Vocational expert testimony
Jennifer Ann Maginnis, a vocational expert, testified at the request of the ALJ.
Ms. Maginnis and the ALJ agreed that plaintiff has no past relevant work history (Tr. 43).
The ALJ posed a hypothetical question limited to light work. The hypothetical individual
was limited to simple and routine work that would allow the individual to be off-task eight per
cent of the time. The expert opined that such a hypothetical individual could perform light
unskilled occupations including information clerk, parking-lot attendant, and ticket seller.
Ms. Maginnis opined that the hypothetical individual could miss one-to-two days of work
a month before being disciplined or dismissed; could not experience three-to-five episodes of
staring off into space; and could not be restricted to only occasional contact with the public. The
expert opined the identified jobs typically require standing.
FINDINGS OF THE ALJ
On October 17, 2011, ALJ Richard Mueller entered his decision finding that plaintiff has
not engaged in substantial gainful activity since September 29, 2009, when she filed her claim
(Tr. 13). The ALJ found that plaintiff’s severe impairments included back and seizure disorders;
that plaintiff’s non-severe impairments include anxiety and personality disorders; and that
plaintiff’s impairments of questionable etiology include lower extremity and knee stiffness (Tr.
13-14). The ALJ found that no impairment meets or equals the severity requirements of a Listing
(Tr. 13-14). The ALJ found that plaintiff retains the ability to perform simple, routine light work
that would allow her to be off-task eight percent of the time (Tr. 14-17). Although the ALJ found
that plaintiff has no past relevant work (Tr. 17), the ALJ found that plaintiff could perform other
jobs that exist in significant numbers in the national economy (Tr. 17-18). Therefore, the ALJ
concluded that plaintiff is not disabled (Tr. 19).
Plaintiff first argues that the ALJ erred in assessing her RFC by failing to include any
limitations due to her seizure disorder despite her treating sources’ recommendations.
Specifically, plaintiff cites the recommendations that she observe safety precautions, e.g., no
work at high places or with dangerous machinery.
The ALJ correctly included only plaintiff’s credible limitations in his RFC determination.
See Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010); see also Gragg v. Astrue, 615 F.3d
932, 940 (8th Cir. 2010); Heino v. Astrue, 578 F.3d 873, 882 (8th Cir. 2009).
While the ALJ found that plaintiff’s seizures are severe, the judge found the allegations
only partially credible. The ALJ concluded that the seizures occur less frequently then alleged. I
agree. For example, during the period September 2009 (the date plaintiff filed her claim)
through October 2011 (the date when the ALJ issued his decision), plaintiff reported only three
grand mal seizures to her medical providers: March 2010 (Tr. 496-97), September 2010 (Tr.
537-39), and February 2011 (Tr. 523-26). Furthermore, plaintiff’s treating doctor opined that
the first seizure was likely caused by medical stress due to anxiety about teeth removal (Tr.
496-97), and treating sources suggested that the September 2010 seizure was caused by
noncompliance with medication treatment (Tr. 538).
The ALJ discussed and discounted various statements by plaintiff and her treatment
providers alleging nighttime seizures, a need to be shaken to come out of a staring spell, and
lengthy post-ictal symptoms such as a need to rest, lack of memory, and the like, because
plaintiff did not require frequent emergency-room visits or hospitalizations to treat her
seizures. I note that there are no doctor appointments, emergency-room visits, or
hospitalization to treat injuries caused by nighttime seizures.
Even when treating sources recommended safety precautions, these terminated after
plaintiff was seizure free for six months. In Barnhart v. Walton, 535 U.S. 212 (2002), the
Supreme Court upheld the Commissioner’s interpretation of the statutory definition requiring
that disability, not only the impairment, must have existed or be expected to exist for 12
months or longer.
I concur with the ALJ’s position that long-term safety precautions were not appropriate
here because the seizures were not as severe as alleged, did not result in injury, occurred
infrequently, were largely controlled on medication, and could have been prevented by
plaintiff taking anti-convulsive medication as directed and by her prophylactic use of
Plaintiff also argues that the limitations resulting from her seizure disorder include more
than the limits on working at unprotected heights or working around moving, dangerous
machinery; and cites a doctor who recommended “no bathtub bathing when unattended, no
swimming . . . and no childcare unattended” (Tr. 298). However, the three jobs identified by the
expert do not require bathtub bathing, swimming, or childcare.
Plaintiff cites another opinion by a treating nurse practitioner that includes limitations on
numerous exertional and non-exertional activities including lifting, carrying, standing, walking,
sitting, climbing, balancing, stooping, kneeling, crouching, crawling, reaching, handling,
fingering, feeling, seeing, speaking, hearing, resting, and concentrating (Tr. 543). The ALJ
discussed the opinion but gave it little weight because it came from a nurse practitioner, not from
an acceptable source such as a doctor or licensed psychologist. The ALJ also referenced other
medical examinations performed by the same nurse that repeatedly reported no abnormal clinical
Finally, plaintiff complains that the ALJ did not discuss how he arrived at off-task
restriction based on the record. Plaintiff argues that the ALJ’s RFC should have included
extensive non-exertional limitations and in support of the argument cites (1) statements by the
nurse practitioner describing post-ictal effects from the grand mall seizures requiring rest, and
also describing difficulty with concentration, and (2) recent statements by mental-health
providers describing substantial non-exertional limitations.
As discussed above, the nurse is not an acceptable medical source and the treatment
records here conflict with the nurse’s opinions. As for the mental health providers’ opinions, they
do not deal with plaintiff’s seizure disorder, but with restrictions after October 2011, triggered
when plaintiff’s youngest son visited his father and the father refused to allow the boy to return
Finally, plaintiff argues that the ALJ erred in not finding plaintiff credible.
The credibility of a plaintiff’s subjective testimony is primarily for the Commissioner to
decide, not the courts. Rautio v. Bowen, 862 F.2d 176, 178 (8th Cir. 1988); Benskin v. Bowen,
830 F.2d 878, 882 (8th Cir. 1987). If there are inconsistencies in the record as a whole, the ALJ
may discount subjective complaints. Gray v. Apfel, 192 F.3d 799, 803 (8th Cir. 1999); McClees
v. Shalala, 2 F.3d 301, 303 (8th Cir. 1993). The ALJ, however, must make express credibility
determinations and set forth the inconsistencies that led to his or her conclusions. Hall v. Chater,
62 F.3d 220, 223 (8th Cir. 1995); Robinson v. Sullivan, 956 F.2d 836, 839 (8th Cir. 1992). If an
ALJ explicitly discredits testimony and gives legally sufficient reasons for doing so, the court
will defer to the ALJ’s judgment unless it is not supported by substantial evidence on the record
as a whole. Robinson v. Sullivan, 956 F.2d at 841.
Subjective complaints may not be evaluated solely on the basis of objective medical
evidence or personal observations by the ALJ. In determining credibility, consideration must be
given to all relevant factors, including plaintiff’s prior work record and observations by third
parties and treating and examining physicians relating to such matters as plaintiff’s daily
activities; the duration, frequency, and intensity of the symptoms; precipitating and aggravating
factors; dosage, effectiveness, and side effects of medication; and functional restrictions.
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Social Security Ruling 96-7p
encompasses the same factors as those enumerated in the Polaski opinion, and additionally states
that the following factors should be considered: (1) treatment, other than medication, the
individual receives or has received for relief of pain or other symptoms, and (2) any measures
other than treatment the individual uses or used to relieve pain or other symptoms (e.g., lying flat
on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board).
In his decision, the ALJ discussed the medical evidence that included laboratory testing
that was inconsistent with plaintiff’s complaints, e.g., a December 2008 MRI (Tr. 428) and
October 2009 electroencephalogram (EEG) (Tr. 408). I note that plaintiff cites an August 2011,
24-hour EEG as supporting her allegations of frequent staring spells, however the treating doctor
found that the reported symptoms did not correlate with epileptiform discharges on the EEG and
that the generalized epileptiform discharges present on the EEG did not correlate with any
reported seizure symptoms. Furthermore, plaintiff cross-examined the EEG technicians about
whether "they thought that [the EEG] would help her get disability" (Tr. 571).
The ALJ cited (1) a March 8, 2011 report by plaintiff that she was doing good, that her
most recent seizure was three weeks prior to the visit, and that she had not experienced any
seizures (Tr. 523), and (2) a June 8, 2011 report by plaintiff when she denied having any seizures
(Tr. 550). 1 Additionally, defendant identifies other occasions when plaintiff reported
less-frequent seizure activity than alleged at the hearing: on January 6, 2009, plaintiff reported
that her seizures had improved and she had several seizure-free days during the previous month
(Tr. 382-85); on February 17, 2009, plaintiff said she was doing a lot better and had no recent
seizures (Tr. 335, 378, 470); on September 29, 2009, plaintiff reported that she experienced a
staring amnestic seizure six week prior to that date (Tr. 466); on November 16, 2009, plaintiff
reported that she had not had a seizure in at least four months (Tr. 461); on March 19, 2010,
plaintiff reported a then-recent seizure, but her doctor opined that it was likely the result of
medical stress caused by the removal of teeth (Tr. 496-97); 2 on September 16, 2010, plaintiff
reported that she had a seizure, however her treating nurse noted that the symptoms were
probably triggered by noncompliance with plaintiff’s prescribed medication regimen (Tr. 538);
and on December 7, 2010, plaintiff did not report any then-recent seizure activity (Tr. 527).
The ALJ questioned plaintiff’s treatment compliance, citing the September 2010
statement by a treating source that plaintiff’s seizure probably was caused by noncompliance
with her prescribed medication regimen (Tr. 538). 3 In response to plaintiff’s assertion that
nowhere else does the record reflect noncompliance, defendant points to an observation by
In his decision, the ALJ cited the March 8, 2011 visit as having occurred on May 10, 2011 and the June
8, 2011 visit as having occurred on August 12, 2011; however, the May and August 2011 dates are the
dates that the reports about the visits were printed, not the dates that the visits occurred.
The doctor instructed plaintiff to take anti-anxiety medication prior to any future medical procedures to
prevent a reoccurrence of the medical-stress seizure (Tr. 497).
Although plaintiff argues on appeal that her September 2010 noncompliance was due to adverse
side-effects, if does not negate the fact that one of the three September 2009-October 2011 grand mall
seizures occurred due to noncompliance. This is significant since the earlier 2010 seizure was triggered
by medical stress and the 2011 seizure was due to noncompliance. In summary, all three grand mall
seizures between September 2009 and October 2011 were due to extenuating circumstances.
plaintiff’s treating nurse in March 2011, reporting that plaintiff was not taking her medication
and that her case was complicated by a history of noncompliance (Tr. 525).
The ALJ also observed that there is no evidence of frequent emergency room visits or
hospitalizations for treatment of the seizures. Indeed, plaintiff’s treating medical providers
repeatedly opined that plaintiff’s grand mal seizures were controlled by medication (Tr. 528,
546, 551, 561, 571).
The ALJ also recognized that plaintiff has a back condition requiring a limited level of
treatment. There have been no hospitalizations or surgeries to address the problem. While
evidence accompanying the request for review included an October2011 lumbar-spine CT scan,
plaintiff was being treated for the then-recent low-back pain, but the scan was inconclusive as to
whether there was disc budging or disc herniation (Tr. 638). Although an MRI was
recommended, none was performed or, at least, is in the record. Plaintiff does not use an assistive
device for ambulation, does not wear a back brace, and does not employ a TENS unit; she does
not receive epidural steroid injections, acupuncture, chiropractic adjustments, or osteopathic
manipulations; and she does not attend a pain clinic or a work-hardening program.
As to mental-health concerns, during the period between the filing of the current claim in
September 2009, and the issuance of the ALJ’s decision in October 2011, plaintiff was not
treated by a mental health professional for any emotional impairment. 4 As noted by the ALJ, the
only evidence as to a mental impairment is a 2005 evaluation when plaintiff described insomnia,
panic attacks, and depressed mood. The diagnosis was a depressive disorder.
In summary, the ALJ found that neither the medical evidence nor the level of treatment
supported the plaintiff's allegations. From my review, there is substantial evidence to support
After the ALJ issued his decision in October 2011, plaintiff was treated by mental health professionals
for both affective and anxiety disorders triggered by her son’s father’s refusal to allow him to return to
The plaintiff also challenges the ALJ’s findings as to her daily activities.
The ALJ discussed plaintiff’s daily activities and found them inconsistent with her
allegations. See Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir. 2009) (acts such as cooking,
vacuuming, washing dishes, doing laundry, shopping, driving, and walking, are inconsistent
with subjective complaints of disabling impairments); Young v. Apfel, 221 F.3d 1065, 1069
(8th Cir. 2000); see also 20 C.F.R. § 416.929(c)(3)(i).
As to plaintiff’s hearing testimony about her daily activities, plaintiff interpreted the
testimony one way and the ALJ interpreted it another way.
Evidence that both supports and detracts from the Commissioner’s decision should be
considered, and an administrative decision is not subject to reversal simply because some
evidence may support the opposite conclusion. See Finch v Astrue, 547 F.3d 933, 935 (8th Cir.
2008). A court should disturb the ALJ’s decision only if it falls outside the available “zone of
choice” and a decision is not outside that zone of choice simply because the court may have
reached a different conclusion had the court been the fact finder in the first instance. Buckner
v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011); see McNamara v. Astrue, 590 F.3d 607, 610
(8th Cir. 2010) (if substantial evidence supports the Commissioner’s decision, the court “may
not reverse, even if inconsistent conclusions may be drawn from the evidence, and [the court]
may have reached a different outcome”). The Eighth Circuit has repeatedly held that a court
should “defer heavily to the findings and conclusions” of the Social Security Administration.
Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255 F.3d 577, 581
(8th Cir. 2001).
I find the ALJ’s interpretation is reasonable, especially considering the December 2009
Function Report-Adult that is consistent with the ALJ’s interpretation of plaintiff’s testimony
plaintiff’s custody (Tr.581-98, 599-609, 610-20, 621-38).
Based on all of the above, I find that the substantial evidence in the record as a whole
supports the ALJ’s decision finding plaintiff not disabled. Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is denied. It is further
ORDERED that the decision of the Commissioner is affirmed.
/s/ Robert E. Larsen
ROBERT E. LARSEN
United States Magistrate Judge
February 27, 2014
Kansas City, Missouri
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