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Cypret v. Colvin

United States District Court, W.D. Missouri, Western Division

July 28, 2014

PENNY CYPRET, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERT E. LARSEN, Magistrate Judge.

Plaintiff Penny Cypret seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Title II of the Social Security Act ("the Act"). After reviewing plaintiff's arguments in light of the evidence, I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not disabled. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.


On October 7, 2009, plaintiff applied for disability benefits alleging that she had been disabled since May 1, 2008, amended to February 1, 2009 (Tr. at 31). Plaintiff's application was denied on January 28, 2010. On July 6, 2011, and December 9, 2011, hearings were held before an Administrative Law Judge. On December 20, 2011, the ALJ found that plaintiff was not under a "disability" as defined in the Act. On February 20, 2013, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the final decision of the Commissioner.


Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a "final decision" of the Commissioner. The standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales , 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel , 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater , 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater , 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner's decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Commissioner's decision. Universal Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951); Thomas v. Sullivan , 876 F.2d 666, 669 (8th Cir. 1989). "The Court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Wilcutts v. Apfel , 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission , 450 U.S. 91, 99 (1981)).

Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. at 401; Jernigan v. Sullivan , 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the substantial evidence standard presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. "[A]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision." Id .; Clarke v. Bowen , 843 F.2d 271, 272-73 (8th Cir. 1988).


An individual claiming disability benefits has the burden of proving he is unable to return to past relevant work by reason of a medically-determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. Nevland v. Apfel , 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel , 118 F.Supp.2d 974 (W.D. Mo. 2000).

The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. These regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:

1. Is the claimant performing substantial gainful activity?

Yes = not disabled.
No = go to next step.

2. Does the claimant have a severe impairment or a combination of impairments which significantly limits his ability to do basic work activities?

No = not disabled.
Yes = go to next step.

3. Does the impairment meet or equal a listed impairment in Appendix 1?

Yes = disabled.
No = go to next step.

4. Does the impairment prevent the claimant from doing past relevant work?

No = not disabled.
Yes = go to next step where burden shifts to Commissioner.

5. Does the impairment prevent the claimant from doing any other work?

Yes = disabled.
No = not disabled.


The record consists of the testimony of plaintiff and vocational expert Stella Doering, in addition to documentary evidence admitted at the hearing.


The record contains the following administrative reports:

Stipulation for Compromise Settlement

On March 11, 2005, plaintiff settled a worker's compensation claim for $12, 750.00 (Tr. at 163).

Earnings Record

The record established that plaintiff earned the following income from 1978 through 2010:

Year Earnings Year Earnings 1978 $ 630.88 1995 $ 4, 312.16 1979 2, 458.24 1996 8, 393.78 1980 226.40 1997 5, 721.73 1981 417.69 1998 4, 367.37 1982 735.99 1999 5, 744.06 1983 647.91 2000 12, 115.68 1984 0.00 200119, 742.68 1985 718.57 2002 21, 352.10 1986 51.72 2003 24, 755.74 1987 1, 771.60 2004 9, 680.12 1988 334.16 2005 0.00 1989 1, 914.96 2006 828.611990 5, 941.62 2007 0.00 1991 3, 568.84 2008 4, 752.00 1992 2, 523.57 2009 2, 194.211993 836.66 2010 0.00 1994 6, 813.13

(Tr. at 182).

Daily Activities Questionnaire - Interested Third Party

On October 25, 2009, Georgina Phillips, plaintiff's friend of 18 years, completed a Daily Activities Questionnaire (Tr. at 204-207). When asked how frequently she sees plaintiff, Ms. Phillips wrote, "a couple weeks every other month." Plaintiff spends a typical day watching television and playing on the computer (Tr. at 204). Plaintiff naps off and on all day. Plaintiff cooks a little bit but her husband makes supper because plaintiff cannot pick up a pot or pan that has anything in it. Plaintiff vacuums a couple times a week and helps her husband do the dishes. Plaintiff is able to drive to appointments. Plaintiff has problems concentrating every day: "forgetting to eat, what day of the week it is." Plaintiff starts to cry for no reason sometimes.

Daily Activities Questionnaire - Interested Third Party

On December 4, 2009, plaintiff's friend of 10 years, Tonya Bryan-Long, completed a Daily Activities Questionnaire (Tr. at 235-238). Ms. Bryan-Long indicated that she sees plaintiff once a month. She indicated that plaintiff is "up and down" at night and that she does not have normal sleep, that she has a hard time getting out of the tub, that plaintiff's husband does all of the cooking or they eat out, that plaintiff is able to drive, that plaintiff's hobbies include reading a lot and watching television, and that plaintiff has a hard time getting along with co-workers because she "hurts too much." Ms. Bryan-Long said, "now we hardly see each other. Talk on the phone some.... I miss her."

Function Report

In a Function Report dated December 4, 2009, plaintiff reported that she watches television for about four hours after she gets up in the morning (Tr. at 218-226). She then goes back to bed. Plaintiff "can't sleep at night" because she is restless and her back hurts. She needs help washing her hair. She needs a lift to get up from the toilet. Plaintiff eats fast food, pizza and TV dinners. She cannot lift heavy pans or milk, and she cannot open jars. Plaintiff drives, but sometimes she is unable to step on the brakes due to knee pain and her knee "coming out of joint." Plaintiff visits with others on the phone. Her symptoms affect her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, see, remember, complete tasks, concentrate, use her hands and get along with others. Her symptoms do not affect her ability to talk, hear, understand, or follow instructions. Getting along with others is hard when she is in pain. Plaintiff is left-handed. She can walk for 15 minutes before needing to rest for an hour or two. She can pay attention for about an hour.

Function Report

In a second Function Report dated both December 29, 2009, and January 2, 2010 (about a month after the previous one), plaintiff described her day as doing nothing more than sitting and watching television or lying down, and rubbing her legs to help relieve her pain (Tr. at 257-264). Plaintiff eats only one meal a day and her husband prepares that. The only household chore she can perform is wiping off the table. She is able to drive a car and can go out alone. Plaintiff does not like to be around people because when she stands in line she starts hurting and she gets restless.

Disability Report

In an undated Disability Report, plaintiff indicated that she can speak, read and write in English (Tr. at 268-278). She was working at the time for a staffing company doing cleaning for 6 hours per day one day a week. She completed 9th grade, was not in special education classes, and has no additional type of specialized job training. She worked as a child care provider 8 hours a day 5 days a week from August 2008 through November 2009 earning $9.25 per hour. I note that (1) plaintiff's alleged onset date is February 1, 2009, which would mean that she worked full time for almost a year after her alleged onset date, and (2) annual earnings at this rate would equal $19, 240; however, during all of 2008 and 2009, plaintiff's earnings records show a total of $6, 946.21 which indicates that if she did work as much as alleged in this Disability Report, she did not report all of her earnings.

Work History Report

In an undated Work History Report plaintiff indicated she worked as a child care provider until November 2009 (Tr. at 279-296). Again, this is nearly a year after her alleged onset date. The Work History Report states that in 2009 she starting doing cleaning for a staffing company and she was still employed at the time she completed this form. She did not complete any of the questions about her job duties (Tr. at 282); however, in another form when asked to describe her duties at Labor Ready she wrote, "everything" (Tr. at 317, 326).


On January 20, 2006, plaintiff was evaluated by Anna Maria Bellatin, Ph.D., in connection with a previous disability case (Tr. at 388-390). This was several years before her most recent alleged onset date; however, I note a few things from this record that are relevant. Plaintiff testified at her administrative hearing that she does not have a GED (Tr. At 30), but she told Dr. Bellatin during this psychological evaluation that she earned a GED at age 18 after dropping out of school in 9th grade (Tr. At 388). Dr. Bellatin observed no impairments in walking or standing (Tr. At 389). Dr Bellatin, at that time, found that plaintiff would have some impairment in remembering more complex instructions and may have some impairment in sustaining concentration and persistence in tasks; however, she noted no other mental impairment.

On August 23, 2007, plaintiff saw Mohammed Pourakbar, D.O., with complaints of chest pain (Tr. at 412). Plaintiff had an EKG and chest x-ray which showed early chronic obstructive pulmonary disease ("COPD") changes. She was sent to St. Mary's Medical Center by Dr. Pourakbar for further evaluation of complaints of chest pain (Tr. at 398-399). Plaintiff was smoking a pack or more of cigarettes per day. After evaluating her chest CT and EKG, Robert Henley, M.D., determined that plaintiff's chest pain was not cardiac in nature or caused by pulmonary embolus. He assessed chest wall pain.

On February 19, 2008, plaintiff saw Dr. Herbert Lindsley, a rheumatologist, at KU Medical Center for a follow-up on fibromyalgia and generalized pain (Tr. at 443-447). Plaintiff reported that she "sleeps 8 hours at night with cyclobenzaprine [Flexeril, a muscle relaxer]." She reported moderate fatigue and joint pain. She weighed 166 pounds. She was alert, oriented and cooperative with normal mood, affect, memory, judgment and insight. She was diagnosed with polyarthralgias of the hips, feet and hands; generalized pain; fibromyalgia; low back pain; and neck pain. She ...

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