Pierce v. Saul

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

ALAN DELANE PIERCE, )

)

Plaintiff, )

)

v. ) Case No. 1:19CV233 HEA

)

ANDREW M. SAUL, )

Commissioner of Social Security, )

)

Defendant. )

OPINION, MEMORANDUM AND ORDER

This matter is before the Court for judicial review of the final decision of the

Commissioner of Social Security denying the application of Plaintiff for denial of

supplemental security income benefits under Title XVI, 42 U.S.C. §§ 1381, et seq.

The Court has reviewed the filings and the administrative record as a whole which

includes the hearing transcript and medical evidence. The decision of the

Commissioner will be affirmed.

Background

Plaintiff protectively filed for Supplemental Security Income on March 24,

2017, alleging disability beginning February 27, 2017. He received an initial denial

and subsequently filed a timely Request for Hearing. He attended a hearing before

an Administrative Law Judge (“ALJ”) on April 18, 2019. The ALJ rendered an

unfavorable decision dated May 22, 2019. In the decision, the ALJ found Plaintiff

had the severe impairments of degenerative disc disease of the lumbar spine and

lumbar radiculopathy. While the ALJ found neither of Plaintiff’s impairments met

or equaled a listed impairment, he did find some limitations. Specifically, the ALJ

found Plaintiff retained the residual functional capacity (“RFC”) to perform:

Light work as defined in 20 CFR 416.967(b) except the claimant should

never climb ladders, ropes, or scaffolds and should no more than

occasionally climb ramps and stairs. He can occasionally balance, stoop,

kneel, crouch, and crawl.

Based on vocational expert testimony, the ALJ found Plaintiff could perform

work such as hand packer, cleaner, and production worker.

Plaintiff filed a timely Request for Review of Hearing Decision. The

Appeals Council, on November 19, 2019, denied the request. Plaintiff has

exhausted all administrative remedies. Thus, the decision of the ALJ stands as the

final decision of the Commissioner.

Hearing Testimony

On April 18, 2019, Plaintiff appeared and testified at a hearing before the

ALJ. Plaintiff testified that eighth grade was the highest grade he completed; he

did not get a GED. The last time Plaintiff worked was in 2017 operating a forklift.

He was fired from that job because he was taking pain medication while at work.

Plaintiff testified that he has problems with his lower back. Plaintiff testified

that his back pain radiates down his legs. If he performs any work, the pain will be

intensified the next day. He testified that he can only stand for about an hour to an

hour and a half at a time. He will then have to sit down. To cope with the pain,

Plaintiff takes narcotic pain medication and will lie down.

Plaintiff is able to perform his own hygiene and shares housework with his

brother, with whom he resides. He is able to share cooking responsibilities.

A vocational expert also testified at the hearing and provided vocational

interrogatory responses after the hearing.

Legal Standard

To be eligible for DBI under the Social Security Act, Plaintiff must prove

that he is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001);

Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).

The Social Security Act defines disability as the inability “to engage in any

substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than twelve months.” 42

U.S.C. § 1382c(a)(3)(A). An individual will be declared disabled “only if his

physical or mental impairment or impairments are of such severity that he is not

only unable to do his previous work but cannot, considering his age, education, and

work experience, engage in any other kind of substantial gainful work which exists

in the national economy.” 42 U.S.C. § 1382c(a)(3)(B).

The Commissioner engages in a five-step evaluation process to determine

whether a claimant is disabled. See 20 C.F.R. § 416.920; Bowen v. Yuckert, 482

U.S. 137, 140-42 (1987). At Step One, the ALJ determines whether the claimant is

currently engaged in substantial gainful activity. At Step Two, the ALJ considers

whether the claimant has a “severe” impairment or combination of impairments. At

Step Three, the ALJ determines whether the severe impairment(s) meets or

medically equals the severity of a listed impairment; if so, the claimant is

determined to be disabled, and if not, the ALJ's analysis proceeds to Step Four.

At Step Four of the process, the ALJ must assess the claimant's residual functional

capacity (RFC) – that is, the most the claimant is able to do despite her physical

and mental limitations, Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) – and

determine whether the claimant is able to perform any past relevant work. Goff v.

Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (RFC assessment occurs at fourth step

of process).

The claimant bears the burden through Step Four of the analysis. If he meets

this burden and shows that he is unable to perform his past relevant work, the

burden shifts to the Commissioner at Step Five to produce evidence demonstrating

that the claimant has the RFC to perform other jobs in the national economy that

exist in significant numbers and are consistent with his impairments and vocational

factors such as age, education, and work experience. Phillips v. Astrue, 671 F.3d

699, 702 (8th Cir. 2012).

The Court must affirm the Commissioner's decision if it is supported by

substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.

Perales, 402 U.S. 389, 401 (1971); Jones v. Astrue, 619 F.3d 963, 968 (8th Cir.

2010). Substantial evidence is less than a preponderance but enough that a

reasonable person would find it adequate to support the conclusion. Jones, 619

Additionally, the Court must consider evidence that supports the Commissioner's

decision as well as any evidence that fairly detracts from the decision. Boyd v.

Colvin, 831 F.3d 1015, 1020 (8th Cir. 2016). If, after reviewing the entire record, it

is possible to draw two inconsistent positions and the Commissioner has adopted

one of those positions, the Court must affirm the Commissioner's decision; the

Court may not reverse the Commissioner's decision merely because substantial

evidence could also support a contrary outcome. Id; see also Fentress v. Berryhill,

854 F.3d 1016, 1021 (8th Cir. 2017).

RFC

A claimant's residual functional capacity (RFC) is the most an individual can

do despite the combined effects of all of his or her credible limitations. See 20

C.F.R. § 404.1545. An ALJ's RFC finding is based on all of the record evidence,

including the claimant's testimony regarding symptoms and limitations, the

claimant's medical treatment records, and the medical opinion evidence. See

Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir.2010); see also 20 C.F.R. §

404.1545; Social Security Ruling (SSR) 96–8p.

Decision of the ALJ

At Step One of the decision from May 22, 2019, the ALJ found that Plaintiff

had not engaged in substantial gainful activity since March 24, 2017, the alleged

onset date. At Step Two, the ALJ found that Plaintiff had the severe impairments

of degenerative disc disease of the lumbar spine and lumbar radiculopathy. The

ALJ found Plaintiff did not have an impairment or combination of impairments

listed in or medically equal to one contained in the Listings, 20 C.F.R. part 404,

subpart P, appendix 1, (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d),

416.925 and 416.926).

The ALJ determined that Plaintiff retained the residual functional capacity to

perform light work subject to the following limitations: Plaintiff should never

climb ladders, ropes, or scaffolds and should no more than occasionally climb

ramps and stairs. He can occasionally balance, stoop, kneel, crouch, and crawl.

At Step Four, the ALJ found Plaintiff unable to perform his past relevant

work as a forklift operator. At Step Five, the ALJ found that there are jobs that

exist in significant number in the national economy that Plaintiff could perform,

such as hand packer, cleaner, and production worker. Therefore, the ALJ found

Plaintiff not disabled.

Statement of the Issues

Generally, the issues in a Social Security case are whether the final decision

of the Commissioner is consistent with the Social Security Act, regulations, and

applicable case law, and whether the findings of fact are supported by substantial

evidence on the record as a whole. The issue here is (1) whether the ALJ’s RFC

finding is supported by substantial evidence on the record as a whole.

Discussion

Plaintiff argues the ALJ improperly discredited the opinion of Dr.

McPherson, Plaintiff’s treating physician. In considering Plaintiff’s medical

treatment notes, the ALJ noted that for the first six months of treatment, Plaintiff

ambulated normally for the first six months of primary care treatment. In Dr.

McPherson’s clinic, Plaintiff’s providers describe his ambulation as limited, and

also note his gait was normal. He had normal strength and intact sensation.

Plaintiff’s treatment remained conservative, despite a neurosurgical

recommendation for a lumbar brace, facet blocks, and changes to Plaintiff’s

medication regimen, which consisted primarily of narcotic pain medication.

The ALJ noted inconsistent findings regarding Plaintiff’s straight leg raise

testing. Plaintiff’s straight leg testing was positive while in the supine position, but

negative in the sitting position. The ALJ, however, did not simply rely on these

tests. He considered the February 2017 MRI and CT scans when making his

assessment of Plaintiff’s ability to perform light work based on his severe

impairments.

Additionally, the ALJ cited other inconsistencies in Plaintiff’s treatment

notes. The Plaintiff was noted to have limited ambulation and a normal gait. As

the Commissioner rightly argues, Plaintiff cites no authority obligating the ALJ to

contact Dr. McPherson for clarification of these inconsistencies. The agency

regulations provide that the agency will determine whether the claimant is disabled

based on the evidence it has. 20 C.F.R. § 416.920b(b)(1).

The ALJ also noted the conservative treatment. The ALJ noted the

neurosurgical consultation did not recommend surgery, rather, the consulting

neurosurgeon recommended a lumbar brace, facet blocks and medication changes.

“[C]onservative treatment, management with medication, and lack of required

surgical intervention all support the ALJ's RFC determination. See Wildman v.

Astrue, 596 F.3d 959, 965 (8th Cir. 2010) (‘If an impairment can be controlled by

treatment or medication, it cannot be considered disabling.’ (quoting Brown v.

Barnhart, 390 F.3d 535, 540 (8th Cir. 2004))).” Buford v. Colvin, 824 F.3d 793,

797 (8th Cir. 2016). Throughout the entire record, Plaintiff’s treatment remained

conservative, continuously being treated with pain medication alone.

Dr. McPherson’s determination that Plaintiff was 100% disabled is not a

proper conclusion for a treating physician, in that the determination is an issue left

to the Commissioner. 20 C.F.R. 416.927(d). The ALJ properly discredited this

conclusion.

The ALJ considered Dr. McPherson’s treatment notes as well as the opinion

of the state agency medial consultant, Dr. McGraw. In assessing all of the

evidence before him, the ALJ observed Dr. McGraw’s review was consistent with

the medical evidence. This fact, however, did not result in a carte blanche

acceptance of Dr. McGraw’s opinion. The ALJ did not rely entirely on the

conclusions reached by Dr. McGraw. Based on the medical evidence in the record,

the ALJ concluded, contrary to Dr. McGraw, that Plaintiff was not capable of

medium work, but rather he is limited to light work. The ALJ assessed Plaintiff’s

impairments and limited Plaintiff to light rather than medium work.

While Plaintiff may have an alternative belief that the evidence supports a

finding of disability, the evidence before the ALJ supports the conclusion that

Plaintiff is capable, with limitations, of performing light work. There is substantial

evidence in the record as a whole to support the ALJ’s conclusion that Plaintiff is

not disabled.

Conclusion

After careful review, the Court finds the ALJ’s decision is supported by

substantial evidence on the record as a whole. Perkins vy. Astrue, 648 F.3d 892, 900

(8th Cir. 2011). The ALJ’s opinion is supported by substantial evidence in the

record, and therefore is affirmed.

Accordingly,

IT IS HEREBY ORDERED that the decision of the Commissioner is

AFFIRMED.

A separate judgment shall be entered incorporating this Memorandum and

Order.

Dated this □□ day of February, 2021.

UNITED STATES DISTRICT JUDGE

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