Sheets v. Berryhill

Filing 20

ORDER re 3 SOCIAL SECURITY COMPLAINT filed by James Sheets. The decision of the Commissioner is affirmed. Signed on 12/13/2018 by Magistrate Judge Willie J. Epps, Jr. (Epps, Willie)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
JAMES SHEETS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 18-CV-3095-WJE

ORDER
James Sheets, plaintiff, seeks judicial review1 of a final administrative decision of the
Commissioner of Social Security (Commissioner) denying his claim for disability insurance
benefits under Title II of the Social Security Act (SSA), 42 U.S.C. §§ 401, et seq. Mr. Sheets
contends the administrative record (AR) does not contain substantial evidence to support the
Commissioner’s decision that he was not disabled during the relevant period. For the reasons that
follow, the Commissioner’s decision will be affirmed.

I.

BACKGROUND

Mr. Sheets was born on September 28, 1966. On April 12, 2016, Mr. Sheets filed an
application for disability insurance benefits. (AR 99). He originally alleged a disability onset date
of September 25, 2015, stemming from high blood pressure, left hip pain, sleep problems,
depression, short-term memory loss, anger issues, and bipolar disorder. (AR 194, 218). At the
administrative hearing on November 2, 2017, Mr. Sheets and his counsel amended his alleged
disability onset date to September 28, 2016, which was his 50th birthday. (AR 10, 28-29). The
claim was denied on November 17, 2017. (AR 7-23). Thereafter, Mr. Sheets filed a Request for
Review of Hearing Decision with the Appeals Council on January 4, 2018, which was denied on
January 23, 2018. (AR 1-6). Thus, the decision of the Administrative Law Judge (ALJ) stands as
the Commissioner’s final decision.
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With the consent of the parties, this case was assigned to the United States Magistrate Judge pursuant to the
provisions of 28 U.S.C. § 636(c).

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Disability Determination and the Burden of Proof
A claimant seeking disability insurance benefits has the burden of establishing he or she
suffers from a disability as defined by the SSA in 42 U.S.C. § 1382c(a)(3)(A). Roth v. Shalala, 45
F.3d 279, 282 (8th Cir. 1995); Gentry v. Astrue, No. 07-03168-CV-S-REL-SSA, 2008 U.S. Dist.
LEXIS 55511, at *4 (W.D. Mo. 2008) (citing Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir.
1998)). This requires demonstration of (1) a medically determinable impairment that has lasted or
will likely last for a period of at least one year that (2) has rendered claimant unable to engage in
any “substantial gainful activity” (3) because of the impairment. 42 U.S.C. § 1382c(a)(3)(A).
Based on these criteria, the Social Security Administration has established a five-step, sequential
evaluation process for appraising whether a claimant is disabled and benefit-eligible. 20 CFR §§
404.1520(a) and 416.920(a); see generally Stanton v. Comm’r, SSA, 899 F.3d 555, 557 (8th Cir.
2018); see also Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
The Commissioner must evaluate:
(1) whether the claimant is presently engaged in a substantial gainful activity;
(2) whether the claimant has a severe impairment that significantly limits the
claimant’s physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations;
(4) whether the claimant has the residual functional capacity to perform his or her
past relevant work; and
(5) if the claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that
the claimant can perform.
Frederick v. Berryhill, 247 F. Supp. 3d 1014, 1019–21 (E.D. Mo. 2017) (citing Dixon v. Barnhart,
353 F.3d 602, 605 (8th Cir. 2003); Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007)).
At step one, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity” (SGA). 20 CFR §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i).
“Substantial work activity” is work activity that involves doing significant physical or mental
activities. 20 CFR § 404.1572(a). “Gainful work activity” is work that is usually done for pay or
profit, whether or not a profit is realized. 20 CFR § 404.1572(b). If the claimant is engaged in

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SGA, then the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If the
claimant is not engaging in SGA, the analysis proceeds to the second step.
Next, at step two, the Commissioner must determine whether the claimant has a severe
medically determinable impairment that significantly limits the claimant’s physical or mental
ability to perform basic work activities. Dixon, 353 F.3d at 605. An impairment or combination
of impairments is not severe when evidence—medical or otherwise—establishes one or more
slight abnormalities that would have only a minimal effect on an individual’s ability to work.
Kirby, 500 F.3d at 707; 20 CFR §§ 404.1521 and 416.921. If the claimant does not have one or
more severe, medically-determinable impairments, the claimant is not disabled under the SSA.
If the claimant is found to be severely impaired, the analysis proceeds to the third step
where the Commissioner must determine whether the claimant’s impairment(s) meet or medically
equal the severity criteria listed in 20 CFR Part 404, Subpart P, Appendix 1. 20 CFR §§
404.1520(d), 404.1525, 404.1526. If the impairment(s) meet the criteria and duration requirement,
the claimant is disabled. Otherwise, the analysis proceeds to the next step.
At step four, the Commissioner examines evidence provided by the claimant to assess the
claimant’s residual functional capacity (RFC). 20 CFR §§ 404.1520(a)(4)(iv), 404.1545(a)(4),
416.920(a)(4)(iv), 416.945(a)(4). RFC refers to a claimant’s ability to perform physical and
mental work activities on a sustained basis despite limitations from impairments. Id. At this stage
of the analysis, the Commissioner is responsible for developing the claimant’s complete medical
history, arranging for consultative examinations, and assisting claimant with gathering other
medical evidence. 20 CFR §§ 404.1545(a)(3) and 416.945(a)(3). If a claimant retains the RFC
for work performed in the fifteen years prior to the onset of the alleged disability (“past relevant
work”), then the claimant is not disabled. If the claimant is or does not have any past relevant
work, the analysis proceeds to final step, and the burden shifts, thereafter requiring the
Commissioner to disprove disability.
At step five, the Commissioner considers the claimant’s RFC, age, education, and work
experience to determine whether the claimant is able to do any other work. Though the claimant
continues to bear the burden of proving disability, once he or she adequately shows an inability to
do past work, the Commissioner has the burden of proving the claimant retains the RFC to do
other types of work. Frederick, 247 F. Supp. 3d at 1020. The Commissioner is then responsible
for providing evidence that other work the claimant can perform exists in significant numbers in
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the national economy. 20 CFR §§ 404.1512(g), 404.1560(c), 416.912(g) and 416.960(c). If the
claimant is able to do other work, the claimant is not disabled. If the claimant is not able to do
other work and meets the duration requirement, the claimant is disabled.
The ALJ’s Findings
The ALJ made the following findings:
1. Mr. Sheets meets the insured status requirements of the SSA through December 31, 2017.
2. Mr. Sheets has not engaged in substantial gainful activity since September 28, 2016, the
alleged onset date. (20 CFR § 404.1571 et seq.).
3. Mr. Sheets has the following severe impairments: degenerative disc disease, status post
ankle fracture, status post right wrist fracture, and status post plate removal of right
wrist/reconstruction. (20 CFR § 404.1520(c)).
4. Mr. Sheets does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1. (20 CFR §§ 404.1520(d), 404.1525, and 404.1526).
5. Mr. Sheets has the residual functional capacity to perform light work as defined in 20 CFR
§ 404.1567(b) except can lift and carry 20 pounds occasionally and 10 pounds frequently;
can stand or walk 6 hours a day, and sit 6 hours a day; can lift no more than 10 pounds with
the dominant, right hand, but can lift 20 pounds with both hands; occasionally climb,
balance, stoop, kneel, crouch, crawl; occasionally handle and finger with the upper right
extremity; no more than occasional exposure to extreme temperatures, such as cold, or
humidity, wetness or vibration; no exposure to hazardous conditions such as working
around heights or dangerous moving machinery; and cannot climb ropes, ladders or
scaffolds.
6. Mr. Sheets is unable to perform any past relevant work. (20 CFR § 404.1565).
7. Mr. Sheets was born on October 28, 1966 (sic) and was 49 years old (sic) on the alleged
onset date, which is defined as an individual closely approaching advanced age. (20 CFR
§ 404.1563).
8. Mr. Sheets has at least a high school education and is able to communicate in English. (20
CFR § 404.1564).

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9. Transferability of job skills is not material to the determination of disability because using
the Medical-Vocational Rules as a framework supports a finding that Mr. Sheets is “not
disabled,” whether or not Mr. Sheets has transferable job skills. (See SSR 82-41 and 20
CFR Part 404, Subpart P, Appendix 2).
10. Considering Mr. Sheets’ age, education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the national economy that Mr. Sheets can
perform. (20 CFR §§ 404.1569 and 404.1569(a)).
11. Mr. Sheets has not been under a disability, as defined in the SSA, since September 28,
2016, the date the application was filed. (20 CFR § 416.920(g)).

II.

STANDARD OF REVIEW

The Eighth Circuit requires the reviewing court to “determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole.” Baker v. Barnhart, 457
F.3d 882, 892 (8th Cir. 2006). “Substantial evidence” is less than “a preponderance of the
evidence,” merely requiring that a reasonable person would find the evidence adequate to support
the Commissioner’s decision. Id.; Cox v. Barnhart, 345 F.3d 606, 608 (8th Cir. 2003). All
evidence, whether it supports or contradicts the Commissioner’s decision, should be examined to
determine whether the existing evidence is substantial. Baker, 457 F.3d at 892.
When reviewing the record to determine if there is substantial evidence to support the
administrative decision, the Court considers the educational background, work history, and present
age of the claimant; subjective complaints of pain or other impairments; claimant’s description of
physical activities and capabilities; the medical opinions given by treating and examining
physicians; the corroboration by third parties of claimant’s impairments; and the testimony of a
vocational expert when based upon proper hypothetical questions that fairly set forth the claimant’s
impairments. McMillian v. Schweiker, 697 F.2d 215, 221 (8th Cir. 1983).
“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.” Baker, 457 F.3d at 892;
Schouten v. Berryhill, 685 F. App’x 500, 501 (8th Cir. 2017); Wright v. Colvin, 789 F.3d 847, 852
(8th Cir. 2015); Wheeler v. Apfel, 224 F.3d 891, 893-94 (8th Cir. 2000); Nguyen v. Chater, 75 F.3d
429, 431 (8th Cir. 1996).
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III.

DISCUSSION

Mr. Sheets argues remand is proper because the ALJ erred by failing to support the RFC
with substantial evidence of record. Specifically, he contends the ALJ failed to point to some
medical evidence to support the conclusion that Mr. Sheets could perform light work and failed to
properly weigh Sheets’ testimony. As a result, Mr. Sheets alleges, the record lacks substantial
evidence to support the ALJ’s RFC determination. The Government has responded in opposition
asserting that substantial evidence supports the ALJ’s decision and therefore affirmance is proper.
After a full review of the administrative record and consideration of the parties’ pleadings and
arguments made during oral argument that was held on December 11, 2018, the Court finds the
ALJ’s decision is supported by substantial evidence on the record as a whole and must be
affirmed.2
An ALJ has the responsibility to develop an RFC based on all relevant evidence of record,
including the claimant’s subjective statements about his limitations and medical opinion evidence.
See Mabry v. Colvin, 815 F.3d 386, 390 (8th Cir. 2015); Cox v. Astrue, 495 F.3d 614, 619 (8th Cir.
2007) (“[I]n evaluating a claimant’s RFC, an ALJ is not limited to considering medical evidence
exclusively.”); see also 20 C.F.R. § 404.1545; SSR 96-8p, 1996 WL 374184 (July 2, 1996). An
ALJ should consider the claimant’s allegations to assess the claimant’s RFC and must give good
reasons if he or she questions the claimant’s allegations. See Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1983) (ALJ is “not free to accept or reject 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.”); 20 C.F.R. § 404.1529 (discussing the process for
evaluating symptoms); SSR 16-3p (discussing the evaluation of symptoms).
Here, the ALJ found that the objective medical evidence was not consistent with the
severity of pain, fatigue, and limitations that Mr. Sheets alleged. (AR 16). On June 3, 2016, before
Mr. Sheets’ onset date, he fractured his right fibula when he “rolled his foot off some brick pavers”
while getting out of his car. (AR 475, 545). He had surgery and one month later x-rays revealed
routine healing. (AR 16, 318-19). Mr. Sheets’ doctor described the x-rays as “quite good.” (AR
318). See SSR 16-3p (noting that “objective medical evidence is a useful indicator to help make

Plaintiff’s arguments in support of this appeal were carefully and fully considered. Any arguments that are not
specifically discussed in this order have been considered and determined to be without merit.
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reasonable conclusions about the intensity and persistence of symptoms, including the effects those
symptoms may have on the ability to perform work-related activities”).

Mr. Sheets was

“ambulating full weight bearing with no crutches.” (AR 318). He reported no pain. (AR 318).
Similarly, on October 12, 2016, Mr. Sheets fractured his right wrist when he fell while
walking into a pawn shop, and he later had reconstructive surgery. (AR 449-50, 463-68). More
than one month later, Mr. Sheets reported no wrist pain and was progressing as expected. (AR 60203). Within two months, Mr. Sheets was “doing well.” (AR 356). He was healing appropriately,
and the bridge plate was removed. (AR 356, 358, 376). He rated his wrist pain as a “one” on a tenpoint scale. (AR 600). As the ALJ noted, by February 6, 2017, Mr. Sheets’ grip strength was thirty
pounds in the right hand and fifty-five pounds in the left hand. (AR 16, 597). Mr. Sheets said he
was “highly satisfied” with his progress following wrist surgery. (AR 597). Although he lacked
full range of motion in his wrists, his flexion and extension were still seventy-five and seventy
degrees respectively. (AR 597). He had full strength in his hands, wrists, and forearms. (AR 597).
His doctor even noted that he would not need therapy and could strengthen his hand and increase
his range of motion on his own. (AR 597). The doctor also noted that Mr. Sheets could resume
light activities and could decide on his own when to return to vigorous activities such as sports.
(AR 597). “Impairments that are controllable or amenable to treatment do not support a finding of
disability.” See Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009) (citation omitted).
Regarding Mr. Sheets’ back pain, the ALJ noted that July 2016 x-rays of the lumbar spine
were unremarkable. (AR 16, 326). Mr. Sheets described his back pain as “moderate.” (AR 551,
557). Examinations revealed slightly diminished range of motion of the lumbar spine and slow
and stiff gait when first standing up from a chair. (AR 16, 290, 297, 429). However, Mr. Sheets
generally had normal gait. (AR 16, 555). He did not have muscle atrophy, muscle spasms,
significant motor loss, reflex abnormalities, or serious gait disturbance. (AR 16, 290, 297, 305,
329, 342, 555, 560, 573).
The ALJ also noted that aside from Mr. Sheets’ successful ankle and wrist surgeries, his
treatment was generally conservative and consisted mostly of routine follow-up visits for pain
management and general primary care. (AR 16, 289-315, 327-352, 551-595). Mr. Sheets needed
no further surgery on his wrist or ankle, and he never had back surgery. (AR 16). He did not
permanently use an assistive device for ambulation and used no other pain modalities. (AR 16).
Mr. Sheets argues that the ALJ never specified what treatment Mr. Sheets would have been
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expected to attend. (Doc. 8 at 14). But, as shown above, the ALJ did cite examples of the type of
treatment one would expect for someone with disabling impairments. Moreover, the ALJ’s main
point was that the mostly routine treatment Mr. Sheets did have was not reflective of disabling
impairments (AR 17). See 20 CFR § 404.1529(c)(3)(v) (noting that one of the factors the
Commissioner considers is the “treatment . . . you receive or have received for relief of your pain
or other symptoms”).
The ALJ also considered Mr. Sheets’ testimony that he took only over-the-counter
medication. (AR 16, 40-41). In assessing a claimant’s subjective complaints, an ALJ considers
“[t]he type, dosage, effectiveness, and side effects of any medication.” See 20 CFR §
404.1529(c)(3)(iv). Mr. Sheets testified that he no longer took prescription pain medication
because of financial problems and a lack of health insurance. (AR 16, 41). Mr. Sheets argues that,
at the hearing, the ALJ should have asked him about his attempts to obtain low-cost or free
treatment. (Doc. 8 at 14). Here, however, there is no evidence in the treatment notes that Mr.
Sheets ever sought prescription drug assistance or similar resources. (AR 16). In fact, there is no
evidence that Mr. Sheets sought any treatment whatsoever after February 2017. Under these facts,
it was reasonable for the ALJ to conclude that Mr. Sheets no longer took prescription pain
medication because his symptoms did not warrant it, not because he could not afford it.
In addition to the medical evidence, the ALJ also considered Mr. Sheets’ activities, which
were more extensive than one would expect for someone with disabling impairments. (AR 16-17).
Pain management treatment notes repeatedly stated that Mr. Sheets lived by himself and was
“independent.” (AR 554, 559, 572, 585). He had no problems driving and testified that he drove
himself to the hearing. (AR 16, 30-31, 240). He also testified that he did chores around the house
by loading and unloading the dishwasher and folding towels. (AR 16, 41). He would go to the
grocery store with his sister-in-law and push the shopping cart. (AR 16-17, 41-42). In his Function
Report, Mr. Sheets said that he mowed the yard for about two hours once a week. (AR 239). He
also said that he did the dishes and the laundry and went to church from time to time. (AR 17, 239,
241).
Mr. Sheets states that he need not be bedridden to prove disability, but the ALJ did not
impose such an evidentiary standard on him. (Doc. 8 at 10). Mr. Sheets also claims that the fact
that he performed some activities does not necessarily mean that he could work full-time. Id. at
10-11. But that is not what the ALJ found. The ALJ simply concluded that Mr. Sheets’ activities
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were inconsistent with his allegations of disabling symptoms. (AR 16). The ALJ was entitled to
make such a finding. See Clevenger v. Soc. Sec. Admin., 567 F.3d 971, 976 (8th Cir. 2009) (“Our
cases admittedly send mixed signals about the significance of a claimant’s daily activities in
evaluating claims of disabling pain, but Clevenger did report that she engaged in an array of such
activities . . . and it was not unreasonable . . . for the ALJ to rely on this evidence to infer that
Clevenger’s assertion of disabling pain was not entirely credible.”).
Mr. Sheets’ main argument is that the ALJ “failed to point to some medical evidence” to
support the RFC finding. (Doc. 8 at 6). An ALJ is not required to list each limitation of the RFC
followed by the specific evidence that supports it. See generally SSR 96-8p, 1996 WL 374184
(July 2, 1996). Instead, the ALJ is required to determine the RFC “based on all of the relevant
evidence.” See McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000).

The ALJ did that here,

fully discussing the medical evidence in determining Mr. Sheets’ RFC. (AR 16-17).
As Mr. Sheets concedes (Doc. 8 at 8), a medical opinion is not required to support an RFC
finding, and the ALJ may instead rely on the treatment records. See Hensley v. Colvin, 829 F.3d
926, 932 (8th Cir. 2016) (“In the absence of medical opinion evidence, ‘medical records prepared
by the most relevant treating physicians [can] provide affirmative medical evidence supporting
the ALJ’s [RFC] findings.’”) (quoting Johnson v. Astrue, 628 F.3d 991, 995 (8th Cir. 2011)). Mr.
Sheets argues that there were no treatment notes or objective findings on which the ALJ could
rely, but that is not the case. (Doc. 8 at 8-9). Mr. Sheets’ objective testing and examination
findings, his routine treatment, and his successful ankle and wrist surgeries are ample medical
evidence in support of the RFC of a reduced range of light work. The ALJ properly found that
Mr. Sheets could perform work existing in significant numbers in the national economy and,
therefore, was not disabled. (AR 18-19). That determination is supported by substantial evidence
and should be affirmed.

IV.

CONCLUSION

For the reasons as set forth herein, the Court finds the Commissioner’s determination that
Mr. Sheets is not disabled to be supported by substantial evidence on the record as a whole, and is
affirmed. Judgment shall be entered in favor of Defendant and against Plaintiff.

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Accordingly, IT IS, THEREFORE, ORDERED that the decision of the Commissioner is
affirmed as set forth herein.
Dated this 13th day of December, 2018, at Jefferson City, Missouri.

WILLIE J. EPPS, JR.
United States Magistrate Judge

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