Titus v. Berryhill
Filing
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ORDER affirming the decision of the Commissioner. Signed on July 9, 2019, by District Judge Greg Kays. (Law Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LORIE TITUS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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No. 4:18-cv-03188-DGK-SSA
ORDER AFFIRMING THE COMMISSIONER’S DECISION
Plaintiff Lorie Titus petitions for review of an adverse decision by Defendant, the Acting
Commissioner of Social Security. Plaintiff applied for disability insurance benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 401-34. The Administrative Law Judge (“ALJ”) found
that Plaintiff had severe impairments through her date last insured, including degenerative disc
disease, osteopenia, depressive disorder, and an adjustment disorder. But the ALJ also found that
Plaintiff retained the residual functional capacity (“RFC”) to perform light work and denied her
claim for benefits. After carefully reviewing the parties’ arguments and the record as a whole, the
Court finds that substantial evidence supports the ALJ’s opinion. The Commissioner’s decision
is therefore AFFIRMED.
Procedural Background
The complete facts and arguments are presented in the parties’ briefs and are repeated here
only to the extent necessary. Plaintiff filed her application on July 27, 2015, alleging a disability
onset date of March 15, 2007. The Commissioner denied the application at the initial-claim level,
and Plaintiff appealed the denial to an ALJ. The ALJ issued an unfavorable decision, and the
Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s ruling as the
Commissioner’s final decision. Plaintiff has exhausted all administrative remedies. Judicial
review is now appropriate. See 42 U.S.C. § 1383(c)(3).
Standard of Review
A federal court’s review of the Commissioner’s decision to deny disability benefits is
limited to determining whether the Commissioner’s findings are supported by substantial evidence
on the record as a whole. Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016). Substantial
evidence is less than a preponderance but enough that a reasonable mind would find it sufficient
to support the Commissioner’s decision. Id. In making this assessment, a court considers evidence
that supports and detracts from the Commissioner’s decision. Id. A court must “defer heavily” to
the Commissioner’s findings and conclusions, Wright v. Colvin, 789 F.3d 847, 852 (8th Cir. 2015),
and may reverse the Commissioner’s decision only if it falls outside of the available zone of choice.
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011). A decision is not outside this zone simply
because the evidence also points to an alternate outcome. Id.
Discussion
The Commissioner follows a five-step sequential evaluation process1 to determine whether
a claimant is disabled, that 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 at least twelve months. 42 U.S.C. § 423(d)(1)(A). The claimant bears the burden of
proving not only that she suffers from a disability, but also that she was disabled prior to the date
“The five-step sequence involves determining whether (1) a claimant’s work activity, if any, amounts to substantial
gainful activity; (2) his impairments, alone or combined, are medically severe; (3) his severe impairments meet or
medically equal a listed impairment; (4) his residual functional capacity precludes his past relevant work; and (5) his
residual functional capacity permits an adjustment to any other work. The evaluation process ends if a determination
of disabled or not disabled can be made at any step.” Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 632 n.1 (8th Cir.
2014); see 20 C.F.R. § 416.920(a)–(g). Through Step Four of the analysis the claimant bears the burden of showing
that he is disabled. After the analysis reaches Step Five, the burden shifts to the Commissioner to show that there are
other jobs in the economy that the claimant can perform. King v. Astrue, 564 F.3d 978, 979 n.2 (8th Cir. 2009).
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she last met the Act’s insured-status requirements. 42 U.S.C. § 423(c)(1)(B)(i); 20 C.F.R.
§ 404.130; see also Moore v. Astrue, 572 F.3d 520, 522 (2009).
The ALJ concluded that Plaintiff’s insured status expired on September 30, 2012, and that
even though her condition deteriorated afterward, she retained the RFC to perform light exertional
work through this date. Plaintiff regards this ruling as unsupported by the record. She argues that
the ALJ lacked sufficient medical evidence to adequately assess her mental functioning prior to
when she was last insured. She further claims that the ALJ improperly discounted evidence
supporting a finding that she was disabled, including the opinion of her counselor and her own
subjective statements. Plaintiff urges the Court to remand the case for further development of the
record.
The Court finds, however, that substantial evidence supports the Commissioner’s decision.
The ALJ relied heavily upon Plaintiff’s medical records from the period between her alleged onset
date and date last insured. And, as the ALJ observed, these records show “routine and conservative
treatment that was nonetheless effective.” R. at 22. For example, a July 2008 primary care note
states that Plaintiff was not taking medication and screened negative for depression. R. at 498.
She continued to screen negative for depression in the succeeding months. See, e.g., R. at 489-90,
482. Plaintiff did obtain treatment for mental impairments in July 2009, when she reported being
unable to work due to the severity of her symptoms. R. at 468-69. But she felt “a lot better” the
following month, stating that she had improved “100% on her current medications.” R. at 453.
Plaintiff’s symptoms varied and intermittently worsened over the next few years, but
adjustments to her medications proved effective. R. at 441, 435, 429-30, 404-05, 389, 362, 36061. She continued meeting with a psychiatrist every few months and, at her final appointment
before her date last insured, reported feeling well, albeit “slightly sad.” R. at 360. She denied
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feeling restless or anxious and did not present acute symptoms of major depression. Id. She made
friends, tended to her garden, performed household chores, and cared for her husband. R. at 42930, 360, 58, 46-47. She stopped taking medication for her mental impairments in March 2011 and
did not resume doing so until well after the expiration of her insured status. R. at 360, 1195, 127274. Taken together, this evidence permits a finding that Plaintiff could perform light work. See
Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004) (“If an impairment can be controlled by
treatment or medication, it cannot be considered disabling.”); Krogmeier v. Barnhart, 294 F.3d
1019, 1024 (8th Cir. 2002) (affirming the denial of benefits based on contemporaneous treatment
notes regarding the efficacy of medication and the claimant’s testimony about his daily activities).
Moreover, the ALJ permissibly accorded little weight to the testimony and opinion of
Plaintiff’s counselor, Ms. Deborah McCart, who first began treating Plaintiff more than three years
after the expiration of her insured status. Per the Commissioner’s regulations, a counselor is not
an acceptable medical source. 40 C.F.R. § 404.1513(a); see also Tindell v. Barnhart, 444 F.3d
1002, 1005 (8th Cir. 2006). The ALJ therefore had considerable discretion to discredit Ms.
McCart’s opinions to the extent they were inconsistent with other record evidence. See Lawson v.
Colvin, 807 F.3d 962, 967 (8th Cir. 2015); Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005).
Ms. McCart opined that Plaintiff could not work since at least September 30, 2012, and
that she would have missed fifteen to twenty days of work per month due to her ailments. R. at
1500-01. The ALJ properly found such conclusions to be contrary to Plaintiff’s contemporaneous
medical records, which indicated infrequent, conservative, and effective treatment. R. at 26-27.
The ALJ was similarly justified in discrediting Plaintiff’s subjective statements. Plaintiff testified
that she stopped looking for work in September 2012 because she “got tired” and “mentally quit
trying.” R. at 49. She added that she could not remember her mental health in 2012, other than
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that she was “really tired and stressed out.” R. at 56. She stated that she cared for her husband
and parents during this time. R. at 58. Although the ALJ did not discuss Plaintiff’s statements in
great detail, his decision makes clear that he found them undercut by Plaintiff’s treatment records
and daily activities. See R. at 21.
Finally, Plaintiff is mistaken in arguing that Social Security Ruling 83-20 (“SSR 83-20”)2
required the ALJ to further develop the record by obtaining the testimony of a neutral medical
advisor. SSR 83-20 sets forth guidelines for determining the onset date of an alleged disability. It
necessitates the services of a medical advisor only if “the medical evidence is ambiguous and a
retroactive inference is necessary.” Grebenick v. Chater, 121 F.3d 1193, 1201 (8th Cir. 1997)
(refusing the claimant a medical advisor where contemporaneous records showed that her ailment
had not reached a “disabling level of severity” by the date last insured); see also Rodriguez v.
Berryhill, 763 Fed. Appx. 585, 585-87 (8th Cir. 2019) (holding that past records obviated the need
for a medical advisor). Here, the ALJ had sufficient contemporaneous evidence to determine that
Plaintiff was not disabled prior to her date last insured. See Grebenick, 121 F.3d at 1199-2001.
Hence, he did not err in denying Plaintiff’s request for a medical expert.
Conclusion
Substantial evidence supports the ALJ’s determination that Plaintiff was not disabled
between her alleged onset date and date last insured. Accordingly, the Commissioner’s decision
denying benefits is hereby AFFIRMED.
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The Social Security Administration has since replaced SSR 83-20 with SSR 18-01p, 2018 WL 4945639 (S.S.A. Oct.
2, 2018). But SSR 18-01p did not become effective until October 2, 2018, and courts are to apply the agency rulings
in effect at the time the ALJ issued his or her decision. Id. at *7.
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IT IS SO ORDERED.
Date: July 9, 2019
/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT
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