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Sullivan v. Colvin

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

September 1, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERT E. LARSEN, Magistrate Judge.

Plaintiff Kelly Sullivan seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Title XVI of the Social Security Act ("the Act"). Plaintiff argues that the ALJ erred in (1) failing to give controlling weight to the opinion of her treating psychiatrist, Shahbaz Khan, M.D., (2) improperly assessing plaintiff's residual functional capacity, and (3) improperly finding plaintiff not credible. 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 July 7, 2010, plaintiff applied for disability benefits alleging that she had been disabled since January 1, 2006. In her application plaintiff alleges that her disability stems from hypertension, hyperlipidemia, obesity, diabetes, anxiety, sleep apnea, neuropathy[1] in her right leg, polycystic ovarian syndrome, [2] asthma, bronchitis, bipolar disorder, arthritis, and an enlarged inflamed larynx. Plaintiff's application was denied on November 5, 2010. On December 14, 2011, a hearing was held before an Administrative Law Judge. On January 19, 2012, the ALJ found that plaintiff was not under a "disability" as defined in the Act. On May 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?

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

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

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

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


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


The record contains the following administrative reports: Earnings Record

The record establishes that plaintiff earned the following income from 1980 through 2011:

Year Earnings Year Earnings 1980 $ 622.48 1996 $ 776.13 1981 5, 389.93 1997 3, 576.80 1982 5, 875.511998 4, 537.08 1983 0.00 1999 12, 413.08 1984 0.00 2000 6, 810.06

1985 210.97 2001 5, 336.77 1986 0.00 2002 0.00 1987 636.38 2003 0.00 1988 0.00 2004 576.311989 0.00 2005 0.00 1990 253.60 2006 0.00 1991 0.00 2007 0.00 1992 0.00 2008 0.00 1993 0.00 2009 0.00 1994 0.00 2010 0.00 1995 0.00 2011 0.00

(Tr. at 124-126).

Function Report

In a Function Report dated July 27, 2010, plaintiff indicated that her conditions do not affect her ability to use her hands, follow instructions or get along with others (Tr. at 156).


During the December 14, 2011, hearing, plaintiff testified; and Jennifer Teixeira, a vocational expert, testified at the request of the ALJ.

1. Plaintiff's testimony.

At the time of the hearing plaintiff was 47 years of age (Tr. at 33). She had been separated from her husband for the past two years (Tr. at 33). Since filing her application for disability benefits on July 7, 2010, plaintiff lived with her 28-year-old son until her husband moved out of their home, and then she moved back to her own home (Tr. at 34). In November 2010, she moved again but has been living alone since that time (Tr. at 34). Plaintiff lives in a bottom-floor two-bedroom apartment (Tr. at 36). She has to climb stairs to get to her apartment (Tr. at 36). She has no trouble getting around her apartment (Tr. at 36-37). Plaintiff has not supported herself financially since she filed her application for disability benefits - she gets a voucher for her apartment, she gets food stamps, and her rent and utilities are paid by the State (Tr. at 38). She is covered by Medicaid (Tr. at 38).

Plaintiff was 5'3" tall and at the time of the hearing weighed 366 pounds (Tr. at 34). Since she filed her application for disability benefits, the least she weighed was about 340 pounds and the most she weighed was 371 pounds (Tr. at 34). Plaintiff has weighed over 300 pounds at least since 2005 (Tr. at 35). Plaintiff has a valid driver's license and she owns a car (Tr. at 35-36). She does not drive much because she panics (Tr. at 36). She drives to the grocery store and to doctor appointments up to three times a week (Tr. at 46).

Plaintiff completed 9th grade but did not finish 10th grade (Tr. at 37). She did not get a GED (Tr. at 37). Plaintiff can read and write and she can do simple math (Tr. at 37).

Plaintiff last worked in 2004 for G&H Concessions preparing food at Casey Speedway (Tr. at 39-40). She left that job because she could not stand for 8 full hours (Tr. at 40). She worked for Burlington Coat Factory in 2001 as a sales associate (Tr. at 40). She left that job after two months because she moved from Kansas City to Blue Springs and the drive was too long (Tr. at 40). Also in 2001 she worked for Door Knock Medical Systems packaging medical supplies (Tr. at 40-41). She stood and walked most of the day at that job (Tr. at 41). She was fired for not working fast enough (Tr. at 41). Plaintiff worked for Red X, a grocery store, from 1997 until 2000 as a cashier (Tr. at 41). She left that job because it became hard for her to be around people - she would panic (Tr. at 41). Plaintiff had a hard time getting along with one of her managers who was "very, very intimidating" (Tr. at 50-51). She became anxious and panicky with the public (Tr. at 51).

Plaintiff was asked for the main reason why she has not been able to work since July 2010 (Tr. at 42). She said her mental problems are the most difficult (Tr. at 42). She sees a doctor once a month and she is in group therapy (Tr. at 42-43). In group therapy, the people discuss their challenges in life and give each other input (Tr. at 43). Plaintiff's transportation is provided (Tr. at 43).

Plaintiff has breathing problems - it is hard for her to walk form a car to her home, but she can do it (Tr. at 43). Plaintiff is not sure what causes her breathing problems - it could be her weight, it could be asthma or possible chronic obstructive pulmonary disease (Tr. at 44). Plaintiff has tried to reduce her weight by riding a stationary bike (Tr. at 44). She gets very winded and has to use an inhaler after five minutes (Tr. at 44). A friend put plaintiff in Weight Watchers and after a month she had only lost a pound (Tr. at 44). Plaintiff testified that she followed the diet, and she has been on a diabetic diet (Tr. at 44).

Plaintiff was 27 years of age when she started using methamphetamine (Tr. at 45). She last used it "six to eight years ago" (Tr. at 45). Although plaintiff's records indicate that in July 2010 she reported, "I am separating from my husband and I used meth about one time a month, " she did not actually use methamphetamine then, she was only afraid she would (Tr. at 45). "I may have, I don't know for sure, I may have... but no, I was not using meth one time a month." Plaintiff used other drugs when she was in high school, but not as an adult (Tr. at 45).

Plaintiff shops for groceries but it wears her out (Tr. at 46). She does not prepare full meals because she is only preparing food for one person and heating things up is easier and less time consuming (Tr. at 46). She is able to do dishes, she is able to do laundry, she is able to make her bed (Tr. at 46). Plaintiff had planned to meet with someone the day after the hearing from "Home Healthcare" who was going to provide housekeeping services for her (Tr. at 46). Plaintiff gets winded when she does housework (Tr. at 47).

Plaintiff can stand for about 20 minutes at a time twice out of an 8-hour day (Tr. at 51). Plaintiff thinks she has carpal tunnel syndrome but she has never been diagnosed with it (Tr. at 51). In any event, in her function report she said she has no trouble using her hands (Tr. at 156).

Plaintiff has two adult sons (Tr. at 47). She sees one son frequently; he lives in Kansas City (Tr. at 48). The other son she sees less frequently because it takes a lot of gas to go visit him (Tr. at 48). Plaintiff talks to her father on the telephone (Tr. at 48). She has a few friends from church (Tr. at 48). She attends church services on Sundays from 9:30 in the morning until 12:30 (Tr. at 48). She had been to a movie once that summer with a friend (Tr. at 48). It was a three-hour movie and she was "kind of" able to sit through it (Tr. at 48). Plaintiff eats in restaurants if people from church take her (Tr. at 49).

On an average day, plaintiff will get up at 7:30 a.m., although some days she does not get up at all (Tr. at 49). She goes to TAT, her group therapy, then comes home and has lunch, does whatever chores she needs to do, runs errands outside the house if she has any, and watches television (Tr. at 49). Three or four days a week plaintiff does not feel like getting out of bed (Tr. at 50).

Plaintiff's medications cause her to lose concentration and to feel tired (Tr. at 50).

2. Vocational expert testimony.

Vocational expert Jennifer Teixeira testified at the request of the Administrative Law Judge. Plaintiff's past relevant work includes medical supplies packager, DOT 920.587-018, medium, unskilled with an SVP of 2; and grocery store cashier, DOT 211.462-014, light with an SVP of 3 (Tr. at 42).

The first hypothetical involved a person limited to sedentary work who could only occasionally climb ramps and stairs, balance, stoop, crouch, or crawl; never climb ladders, ropes or scaffolds; should avoid concentrated exposure to fumes, odors, dusts and gases; is limited to tasks that can be learned in 30 days or less involving no more than simple work-related decisions with few workplace changes (Tr. at 52). The vocational expert testified that such a person could work as a document preparer, DOT 249.587-018, sedentary unskilled with an SVP of 2. There are 4, 802 jobs in Missouri and 204, 449 in the country (Tr. at 52). The person could also work as a stem mounter, DOT 725.684-018, sedentary unskilled, with 2, 740 in Missouri and 180, 440 in the country (Tr. at 52). The person could work as a lens inserter, DOT 713.687-026, sedentary unskilled with 6, 890 in Missouri and 229, 240 in the country (Tr. at 52). The maximum number of unscheduled absences per month permitted would be one (Tr. at 53).


Administrative Law Judge Deborah Van Vleck entered her opinion on January 19, 2012 (Tr. at 11-24).

Step one. Plaintiff has not engaged in substantial gainful activity since her application date, July 7, 2010 (Tr. at 13).

Step two. Plaintiff has the following severe impairments: extreme obesity, class III, with a weight range of 346 to 370 pounds on a 5'3" frame for a body mass index range of 61.3 to 65.5, with related hypertension, hyperlipidemia, diabetes mellitus type II, obstructive sleep apnea, possible right lower extremity neuropathy, and polycystic ovarian disease; asthma; and a mental impairment variously diagnosed to include depression, bipolar disorder, and premenstrual dysphoric disorder (Tr. at 13). Plaintiff's adrenal adenoma is a nonsevere impairment; her inflamed larynx is a nonsevere impairment (Tr. at 13). Plaintiff's cervical radiculopathy is a nonsevere impairment because there is no indication that it causes more than minimal limitations in her functional abilities (Tr. at 14). Arthritis is not a medically determinable impairment as there is no indication in the record that plaintiff has been diagnosed with arthritis, and plaintiff's physical examinations do not reflect any problems with her joints (Tr. at 13).

Step three. Plaintiff's impairments do not meet or equal a listed impairment (Tr. at 13-16). Although the former listing for obesity has been rendered obsolete, the ALJ considered plaintiff's obesity in determining whether plaintiff's impairments meet or equal any listing (Tr. at 14).

Step four. Plaintiff retains the residual functional capacity to perform sedentary work except she can only occasionally climb ramps and stairs; never climb ladders, ropes or scaffolds; occasionally balance, stoop, crouch, kneel or crawl; must avoid concentrated exposure to pulmonary irritants such as fumes, odors, gases and dusts; and is limited to tasks that can be learned in less than 30 days and involving no more than simple work-related decisions and few workplace changes (Tr. at 16). With this residual functional capacity, plaintiff cannot perform her past relevant work as a hand packager or a cashier (Tr. at 22).

Step five. Plaintiff is capable of working as a document preparer, a stem mounter, or a lens inserter, all jobs available in significant numbers (Tr. at 23). ...

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