Pliler v. Colvin

Filing 14

ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION DENYING BENEFITS. Signed on 9/20/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

MARIA J. PLILER,

)
)
Plaintiff,
)
)
vs.
)
)
)
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 17-03010-CV-S-ODS

ORDER AND OPINION AFFIRMING
COMMISSIONER’S FINAL DECISION DENYING BENEFITS
Pending is Plaintiff’s appeal of the Commissioner of Social Security’s final
decision denying her applications for disability insurance benefits and supplemental
security income. For the following reasons, 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 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
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Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for
former Acting Commissioner Carolyn A. Colvin as the Defendant in this suit.

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 1967, and is a high school graduate. R. at 54, 57. She
previously worked as an appliance assembler, sewing machine operator, and cloth
folder. R. at 27, 60-61. Plaintiff applied for disability and disability insurance benefits as
well as supplemental security income, alleging a disability onset date of July 5, 2008.
R. at 18. Plaintiff’s applications were denied, and she requested a hearing before an
administrative law judge (“ALJ”). R. at 171-84. A hearing was held in September 2015.
R. at 49-93. During the hearing, Plaintiff’s counsel indicated an intent to amend
Plaintiff’s alleged onset date to December 12, 2012, but a form amending Plaintiff’s
onset was not submitted. R. at 18, 55-56. In December 2015, ALJ Victor Horton issued
his decision, finding Plaintiff was not disabled. R. at 18-28.
In rendering his decision, the ALJ found Plaintiff had the following severe
impairments: migraines, Raynaud’s disease, peripheral vascular disease, degenerative
disc disease, degenerative joint disease, radiculopathy, and a seizure disorder. R. at
21. The ALJ determined Plaintiff has the residual functional capacity (“RFC”) to:
[P]erform sedentary work as defined in 20 C.F.R. 404.1567(a) and
416.967(a) except that she must have a sit/stand option with the ability to
change positions frequently, further defined as every hour for one minute
and then can return to the same or different position; can never climb
ladders or scaffolds; occasionally climb stairs and ramps, stoop, kneel,
crouch, and crawl; frequently push and pull with the arms and legs;
frequently reach in all directions; never lift overhead; frequently perform
handling/gross and fingering/fine manipulation; must avoid concentrated
exposure to extreme cold and vibrations, further defined as operating
jackhammers or heavy equipment that vibrates the operator; must avoid
concentrated exposure to level five noise; and must avoid all exposure to
hazards and heights and machinery.
R. at 23. Based upon the RFC and the vocational expert’s (“VE”) testimony, the ALJ
concluded Plaintiff could work as a charge account clerk and document preparer. R. at
28. Plaintiff appealed the ALJ’s decision to the Appeals Council, which denied her
appeal. R. at 1-4. Plaintiff now appeals to this Court.

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III. DISCUSSION
Plaintiff argues the ALJ’s decision must be reversed because (1) Plaintiff’s RFC
is not supported by substantial evidence because it does not include Plaintiff’s use of a
cane; and (2) the ALJ failed to properly evaluate Plaintiff’s credibility.

A. Assistive Device
Plaintiff argues the ALJ’s RFC determination is not supported by substantial
evidence because the RFC does not include Plaintiff’s use of a cane. 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). Because
Plaintiff’s RFC is a medical question, “an ALJ’s assessment of it must be supported by
some medical evidence of [Plaintiff’s] ability to function in the workplace.” Hensley v.
Colvin, 829 f.3d 926, 932 (8th Cir. 2016) (citation omitted). “However, there is no
requirement that an RFC finding be supported by a specific medical opinion.” Id.
(citations omitted).
Plaintiff was treated by family nurse practitioner David McVicker, who completed
a medical source statement – physical (“MSS”) in August 2015. R. at 755-57. McVicker
opined Plaintiff would be able to occasionally carry less than ten pounds; could never or
rarely twist, stoop, balance, crouch, crawl, or climb; could occasionally reach, frequently
handle, and constantly finger and feel; would need to shift positions between standing
and sitting; would need unscheduled breaks every twenty minutes lasting thirty minutes
on average; would be off-task twenty-five percent of the day; and was incapable of “low
stress” work. R. at 756-57. McVicker also checked a box indicating Plaintiff would need
to use a cane to address her imbalance, pain, weakness, and dizziness. R. at 757.
The ALJ gave McVicker’s MSS little weight. R. at 26. The ALJ noted McVicker
was not an acceptable medical source according to Social Security Ruling 06-3p, and
found McVicker’s opinions were not supported by his own treatment notes or the record
as a whole. R. at 26. Specifically regarding Plaintiff’s use of a cane, the ALJ found
Plaintiff not credible in asserting her need of a cane. R. at 25. The ALJ noted Plaintiff
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did not have treatment notes for the frequent falls she alleged occurred two to three
times a week even with a cane, the record did not contain ongoing medical observations
of fall-related injuries, and Plaintiff denied falling at times in the record. R. at 25.
Finally, the ALJ noted Plaintiff’s use of a cane was not based on a medical
recommendation or prescription found in the record. R. at 26.
The ALJ did not err in formulating an RFC for sedentary work that did not include
Plaintiff’s use of a cane. Although McVicker was a treating source, the ALJ may
discount his opinion when it is a conclusory statement unsupported by the record. See
Stormo v. Barnhart, 377 F.3d 801, 805-806 (8th Cir. 2004). Plaintiff identifies several
references to her use of a cane in the record (R. at 358, 370, 459, 464, 473), but a cane
is not prescribed or recommended by a medical source in the record. Use of a cane
was recommended following Plaintiff’s August 2014 lumbar fusion surgery, but the
record does not indicate a permanent need to use a cane. During the hearing before
the ALJ, Plaintiff’s counsel posed a hypothetical to the VE that included the need for a
cane, and the VE indicated the individual would be unable to perform light work but did
not indicate Plaintiff would be unable to perform sedentary work. R. at 92. Plaintiff’s
RFC indicates she is able to perform sedentary work, not light work as discussed in the
VE’s response during the hearing.
The ALJ developed an RFC supported by substantial evidence in the record in
that it contained functional limitations consistent with Plaintiff’s severe impairments.
Having identified inconsistencies in the record regarding Plaintiff’s use of a cane, the
ALJ did not err in failing to formulate an RFC for sedentary work that did not include the
use of a cane. Accordingly, the Court affirms the decision in this respect.

B. Plaintiff’s Credibility
Plaintiff argues the ALJ erred in evaluating her 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
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impairment and the degree of claimant’s subjective complaints need not
be produced. The adjudicator may not disregard a claimant’s subjective
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 “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 gave Plaintiff “the benefit of the doubt in assessing her functional
limitations,” but found Plaintiff’s “descriptions of her symptoms and limitations are
generally inconsistent and unpersuasive.” R. at 24. The ALJ identified Plaintiff’s history
of migraines, but noted Plaintiff could control the symptoms with treatment. R. at 24-25.
The ALJ found Plaintiff had a seizure disorder, but noted Plaintiff had not been treated
for a seizure since 2008, and Plaintiff reported her seizures were stable. R. at 25, 462.
Due to Plaintiff’s migraines and seizure disorder, the ALJ included limitations in the RFC
regarding noise and hazards. R. at 25.
The ALJ considered Plaintiff’s subjective statements regarding reports of pain
and numbness, but found the severity alleged inconsistent with the medical evidence.
R. at 25. Plaintiff reported a need to elevate her legs seventy percent of the time, but
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nothing in the record indicates this is required. R. at 26. As discussed above, Plaintiff
alleges she fell two to three times per week even with a cane, but the record does not
contain treatment for falls or injuries sustained in falls. R. at 25. While Plaintiff alleged
difficulty gripping and dropping items, Plaintiff’s examinations showed no significant
sensory or motor deficits. R. at 370, 386, 450, 627, 714.
Finally, the ALJ noted Plaintiff’s daily activities were inconsistent with allegations
of disability. Plaintiff’s function report indicates she is able to care for her personal
needs and grooming, prepare meals, do light household chores, drive a car, go out
alone, go grocery shopping, handle her finances, and read, watch television, and sew.
R. at 270-275. The ALJ noted Plaintiff continued to smoke despite being advised of its
negative effects, and identified Plaintiff’s poor compliance with providers as additional
reasons to question Plaintiff’s credibility. R. at 25.
The ALJ acknowledged and considered the Polaski factors. R. at 21-27. 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.”). Plaintiff’s RFC
included limitations consistent with credible allegations, but the ALJ identified several
reasons based on the record to find Plaintiff was not credible. The Court finds the ALJ
did not err in analyzing Plaintiff’s credibility.

IV. CONCLUSION
The Court concludes there is substantial evidence in the record as a whole to
support the ALJ’s decision. The Commissioner’s decision denying benefits is affirmed.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: September 20, 2017

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