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Talbert v. Colvin

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

September 17, 2014

CRYSTAL TALBERT, Plaintiff,
v.
CAROLYN V. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER

NANETTE K. LAUGHREY, District Judge.

Before the Court is Plaintiff Crystal Talbert's appeal of the Commissioner of Social Security's final decision denying her application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Doc. 8. For the following reasons, the Commissioner's decision is affirmed.

I. Background

Plaintiff was born in December 1978, completed high school, and worked as a sewing machine operator from 2000 to March 2010, when she was laid off. TR-50, 179, 203. Plaintiff alleges she became disabled on August 19, 2010, due to degenerative disc disease of the lumbar and thoracic spine, hypertension, obesity, depression, dysthymic disorder, social phobia, tension headaches, and memory problems.

Before a discussion of Plaintiff's alleged points of error, a brief summary of her medical history is necessary. On August 20, 2010, Plaintiff reported to Dr. Steven Newbold - her primary care physician - and complained of pain in her lower back and numbness in her legs. TR-278. After an MRI, Plaintiff was referred to a specialist and underwent surgery in October 2010 due to severe thoracic stenosis caused by disc herniation at T9-10 and T10-11 and lumbar degenerative disease. TR-308, 327. In December 2010, Plaintiff reported improved symptoms with more exercise tolerance and less pain. TR-361. In March 2011, Plaintiff reported to Dr. Newbold and complained of back pressure requiring intermittent medication. TR-411. She was advised to take Tylenol, Flexeril and Tramadol for times when she experienced mild pain and to "save the Hydrocodone" for more severe pain. Id.

One year later, in April 2012, Plaintiff presented to Dr. Ted Lennerd for the purpose of a disability determination examination. She reported back pain, numbness in her leg, fatigue, and limited range of motion. TR-440. In a Medical Source Statement - Physical, Dr. Lennerd opined that Plaintiff could frequently lift and carry up to twenty pounds, could sit for one hour at a time, stand for fifteen minutes at a time, walk for thirty minutes at a time, could sit for six hours in a day, and could stand and walk one hour in a day. TR-433-34. Plaintiff could occasionally reach, frequently reach and push and pull, and could continuously handle, finger, and feel. Dr. Lennerd also assessed limitations related to exposure and heights. He also stated Plaintiff could never climb ladders, stoop, kneel, crouch, or crawl due to back pain. TR-436.

In July 2012, Dr. Newbold, completed a Physician Questionnaire. Dr. Newbold opined that Plaintiff's back impairments affected her ability to lift and carry objects, stand and walk, sit, and push and pull objects. TR-468. He stated that Plaintiff would need to alternate sitting and standing to relieve pain and would need to lie down more than one time in an eight hour period. Id. He opined Plaintiff could not be able to repeatedly bend, brace, clamp, clinch, crease, crimp, grade, hammer, hang, pack, pick, shove, slip, stretch, tear, jam, twist, or wedge. TR-468-69. Plaintiff had no limitations related to exposure. Plaintiff would likely miss more than four days per month as a result of her back pain. TR-469.

Though not initially so in her disability application, Plaintiff also complained of depression and other mental impairments such as social phobia and impaired memory. Dr. Kenneth Burstin provided a non-examining consultative report in February 2011. Dr. Burstin stated that Plaintiff suffered from depression but that her activities of daily living, social functioning, and concentration, persistence, and pace were not limited. TR-397. Dr. Burstin stated that the evidence he reviewed "does not establish clearly severe, much less disabling, mental impairment." TR-399.

Dr. Eva Wilson assessed Plaintiff in May 2012 at the request of Plaintiff's attorney. Plaintiff reported memory problems, depression, crying spells, and fatigue, and reported being withdrawn. TR-457. Dr. Wilson observed that Plaintiff "appeared to be in a somewhat anxious and depressed mood, " was pleasant and cooperative "but quite withdrawn" and shy, and had discouraged thought content. TR-458. Dr. Wilson performed a "Modified Mental Status Evaluation" and determined that Plaintiff scored "two points short of average intellectual and memory functioning." Id. Dr. Wilson determined that Plaintiff suffered from dysthymic disorder, social phobia, mood disorder due to chronic pain, and personality disorder with anxious features. Id. She assessed a global assessment functioning score of 60 to 50. Id. Dr. Wilson completed a Medical Source Statement-Mental and opined that Plaintiff had marked limitations in the ability to maintain concentration, persistence, and pace, the ability to work in coordination with or proximity to others, and the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms. TR-452-53. Plaintiff was not limited or only mildly to moderately limited in all other areas assessed.

After a hearing, the Administrative Law Judge (ALJ) found that Plaintiff suffered from the following severe impairments: degenerative disc disease of the lumbar and thoracic spine (S/P surgery), hypertension, and obesity. TR-20. The ALJ determined Plaintiff had the residual functional capacity (RFC) to perform sedentary work as defined in 20 C.F.R. ยงยง 404.1567(a) and 416.967(a) with further limitations. Plaintiff can stand only fifteen minutes at a time, up to a total of one hour in an eight-hour workday, and she can sit for one hour at a time up to a total of six hours in an eight-hour workday. She can occasionally and frequently lift or carry up to twenty pounds. She can frequently reach in any direction and occasionally reach overhead. She can push and pull frequently but not constantly and she can operate a motor vehicle no more than frequently. She is limited to no more than occasional balancing or climbing of stairs. She is limited to no more than occasional exposure to moving mechanical parts, humidity, wetness, dust, odors, fumes, pulmonary irritants, temperature extremes, and vibrations. She should avoid climbing ladders and scaffolds, unprotected heights, stooping, kneeling, crouching, crawling, and very loud noises. TR-24.

In making this conclusion, the ALJ gave "great weight" to the opinions of one-time examining consultant Dr. Lennerd because his opinion was consistent with the evidence in the record. TR-27. The ALJ acknowledged that the opinions of Dr. Newbold, Plaintiff's treating physician, were consistent in many ways with the evidence in the record, including Dr. Lennerd's opinion. TR-27. The ALJ gave "little weight" to the portion of Dr. Newbold's opinion which stated Plaintiff would need to lie down during an eight-hour workday and would miss more than four days of work each month. TR-28.

As to Plaintiff's mental impairments, the ALJ concluded that they were non-severe at Step 2. In doing so, the ALJ considered Plaintiff's activities of daily living, evidence of social functioning, her ability to attend and excel in full-time college courses and her lack of significant mental health treatment. The ALJ discounted the opinion of one-time examining psychologist Dr. Eva Wilson, because Dr. Wilson's opinions relied entirely on Plaintiff's subjective complaints and were inconsistent with her own findings that Plaintiff had a GAF score of 50-60 and scored just below average on an intellectual and memory functioning test. TR-21. The ALJ gave non-examining consultant Dr. Burstin "significant weight" because his opinion was supported by other evidence in the record including Plaintiff's activities, her test scores, and her limited mental health treatment.

II. Discussion

Plaintiff alleges three points of error related to the ALJ's formation of Plaintiff's RFC. Plaintiff argues the ALJ erred by dismissing portions of the opinion of her treating physician, improperly considering her mental impairments at Step 2 of the disability evaluation, and improperly assessing her ...


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