McNish v. Colvin
Filing
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ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION. Signed on 9/26/16 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
JOSEPH MCNISH,
)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)
Case No. 15-3540-CV-S-ODS
ORDER AND OPINION AFFIRMING COMMISSIONER’S FINAL DECISION
Pending is Plaintiff’s appeal of the Commissioner of Social Security’s final
decision denying his applications for disability insurance benefits and supplemental
security income. The Commissioner’s decision is affirmed.
I. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is limited to a determination
whether the decision is “supported by substantial evidence on the record as a whole.
Substantial evidence is less than a preponderance but...enough that a reasonable mind
would find it adequate to support the conclusion.” Andrews v. Colvin, 791 F.3d 923, 928
(8th Cir. 2015) (citations omitted). “As long as substantial evidence in the record
supports the Commissioner's decision, we may not reverse it because substantial
evidence exists in the record that would have supported a contrary outcome, or
because we would have decided the case differently.” Cline v. Colvin, 771 F.3d 1098,
1102 (8th Cir. 2014) (citation omitted). Though advantageous to the Commissioner, this
standard also requires that the Court consider evidence that fairly detracts from the final
decision. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2015) (citation omitted).
Substantial evidence means “more than a mere scintilla” of evidence; rather, it is
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th Cir. 2010).
II. BACKGROUND
Plaintiff was born in 1981, has a high school education, and past work
experience as a truck driver, route driver, welder/ grinder, and order filler. R. at 38-46.
Plaintiff alleges a disability onset date of February 22, 2014, stating he became disabled
after slipping and falling on ice.1 R. at 14, 56. The ALJ determined Plaintiff had the
following severe impairments: fibromyalgia, degenerative disc disease of the spine,
facet arthropathy, mild right carpel tunnel syndrome, adjustment disorder, anxiety,
depression, and obesity. R. at 16. The ALJ determined Plaintiff was not disabled and
found Plaintiff had a residual functional capacity (“RFC”):
[T]o perform sedentary work as defined in 20 C.F.R. § 404.167(a)
and 416.967(a) except that he must avoid climbing ladders, ropes or
scaffolds; he can occasionally climb ramps and stairs; he can occasionally
balance, stoop, kneel, crouch, crawl; he can frequently handle and finger;
he must avoid concentrated exposure to vibrations and hazards; he must
be able to change positions from sitting to standing every 30 minutes; and
he can have occasional contact with supervisors, co-workers and the
general public.
R. at 19. Based on the testimony of a vocational expert, the ALJ determined Plaintiff
could work as a final assembler or table worker. R. at 26.
III. DISCUSSION
A.
Plaintiff argues the ALJ failed to include a limitation in the RFC regarding his
ability to maintain concentration. One’s RFC is the “most you can still do despite your
limitations.” 20 C.F.R. § 404.1545(a)(1). The ALJ must base the RFC on “all of the
relevant evidence, including the medical records, observations of treating physicians
and others, and an individual’s own description of his limitations.” McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000).
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Plaintiff previously filed an application for disability and supplemental security income
for injuries suffered in 2009. R. at 106. His application was denied and affirmed by this
Court. See McNish v. Colvin, No. 13-3096-DGK-SSA, 2014 WL 294182 (W.D. Mo. Jan.
27, 2014).
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The ALJ did not err in formulating Plaintiff’s RFC. Plaintiff’s RFC limited him to
“occasional contact with supervisors, co-workers and the general public.” R. at 19. The
ALJ determined no other limitation was necessary and such a determination is
supported by the record. In determining Plaintiff’s RFC, the ALJ gave great weight to
the opinion of examining psychologist Dr. Janice May. Dr. May found Plaintiff does not
display signs of suicidal ideations, being prone to physical violence, substance abuse,
or psychosis. R. at 355. Although Dr. May noted Plaintiff’s bland affect and an
indifferent attitude, she also noted Plaintiff’s “speech is logical, coherent, and goaldirected”, his recent and remote memory is unimpaired, judgment is fair, and his
“attention/concentration is characterized by an ability to attend and maintain focus.” Id.
In meeting with Dr. May, Plaintiff described “good success” with medication prescribed
for his anxiety. Id. Significantly, Dr. May noted Plaintiff’s mental impairments “are likely
to impact concentration however would not prevent him from establishing gainful
employment.” Id. (emphasis added).
In his Function Report, Plaintiff indicated he can handle finances, follow
instructions, has no problems with authority figures, and has no unusual behaviors or
fears. R. at 239, 241-42. Furthermore, the ALJ found Plaintiff to be alert and attentive
at the administrative hearing held in this matter. R. at 19. Plaintiff’s RFC properly
reflects his mild limitation regarding concentration, and the evidence in the record does
not support requiring more in the RFC regarding Plaintiff’s concentration. The Court
finds the ALJ did not err in formulating Plaintiff’s RFC.
B.
Plaintiff argues the ALJ did not properly analyze Plaintiff’s credibility. The familiar
standard for analyzing a claimant’s subjective complaints is set forth in Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984):
While the claimant has the burden of proving that the disability results
from a medically determinable physical or mental impairment, direct
medical evidence of the cause and effect relationship between the
impairment and the degree of claimant’s subjective complaints need not
be produced. The adjudicator may not disregard a claimant’s subjective
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complaints solely because the objective medical evidence does not fully
support them.
The absence of an objective medical basis which supports the degree of
severity of subjective complaints alleged is just one factor to be
considered in evaluating the credibility of the testimony and complaints.
The adjudicator must give full consideration to all of the evidence
presented relating to subjective complaints, including the claimant’s prior
work record, and observations by third parties and treating and examining
physicians relating to such matters as:
1. The claimant’s daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant’s subjective
complaints solely on the basis of personal observations. Subjective
complaints may be discounted if there are inconsistencies in the evidence
as a whole.
Id. at 1322. The ALJ may also consider the the absence of objective medical evidence
to support the claimant’s complaints. Moore v. Astrue, 572 F.3d 520, 524 (8th Cir.
2009) (citations omitted). The ALJ “need not explicitly discuss each Polaski factor...[t]he
ALJ need only acknowledge and consider those factors before discounting a claimant’s
subjective complaints.” Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)
(citations omitted); see also Samons v. Apfel, 497 F.3d 813, 820 (8th Cir. 2007).
The ALJ properly analyzed Plaintiff’s credibility. The ALJ found the objective
medical evidence did not support Plaintiff’s subjective complaints. R. at 21-23. The
ALJ noted medication for Plaintiff’s mental impairments was effective. R. at 355.
Functionally, the ALJ determined medical evidence showed Plaintiff was not as limited
as his testimony suggested. R. at 265-67, 311, 338, 355, 361, 365, 390-91. Plaintiff
could button and unbutton his shirt, grasp objects with his hand, grasp a pen and write
with his right hand, and lift, handle, and carry objects. R. at 390. Although Plaintiff
testified he did few, if any, chores around the house, the ALJ properly noted only mild
limitation in Plaintiff’s activities of daily living. R. at 17. Plaintiff can attend to personal
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grooming, hygiene, and other personal needs, drive, get outside daily, handle personal
finances, attend church, and visit with family and friends. R. at 236-40.
The ALJ acknowledged and considered the Polaski factors. R. at 20. The ALJ is
not required to discuss each factor in turn, but must merely consider the Polaski factors.
See Eichelberger, 390 F.3d at 590. To the extent Plaintiff argues the medical evidence
could support a decision contrary to the ALJ’s, the Court will not substitute its judgment
for that of the ALJ. See Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir. 2003) (stating
“[t]he credibility of a claimant’s subjective testimony is primarily for the ALJ to decide,
not the courts.”). The ALJ did not err in analyzing Plaintiff’s credibility.
IV. CONCLUSION
For the reasons set forth above, the Court affirms the Commissioner’s decision.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: September 26, 2016
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