United States District Court, W.D. Missouri, Western Division
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
ROBERT E. LARSEN, Magistrate Judge.
Plaintiff Stephen Archer seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Titles II and XVI of the Social Security Act ("the Act"). Plaintiff argues that the ALJ erred in (1) finding that plaintiff's depression and anxiety are not severe impairments, (2) discrediting the opinion of Dr. Stillings, and (3) assessing plaintiff's residual functional capacity. 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 April 2, 2010, plaintiff applied for disability benefits alleging that he had been disabled since November 13, 2007, but later amended his alleged onset date to October 20, 2010. Plaintiff alleges disability due to cervical spondylosis; bulging discs; stress disorder; rotator cuff; torn ligaments; and problems with his back, neck, shoulders and lower spine. Plaintiff's application was denied on August 4, 2010. On June 18, 2012, a hearing was held before an Administrative Law Judge. On June 25, 2012, the ALJ found that plaintiff was not under a "disability" as defined in the Act. On April 11, 2013, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the final decision of the Commissioner.
II. STANDARD FOR JUDICIAL REVIEW
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).
III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
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?
IV. THE RECORD
The record consists of the testimony of plaintiff and vocational expert Kristine Skahan, in addition to documentary evidence admitted at the hearing.
A. ADMINISTRATIVE REPORTS
The record contains the following administrative reports:
The record shows that plaintiff earned the following income from 1974 through 2011:
Year Earnings Year Earnings 1974 $ 1, 092.20 1993 $24, 021.911975 0.00 1994 31, 603.76 1976 1, 315.82 1995 20, 105.40 1977 1, 671.70 1996 11, 068.77 1978 3, 993.95 1997 0.00 1979 3, 570.02 1998 15, 084.39 1980 960.00 1999 33, 661.93 1981 9, 747.09 2000 39, 057.47 1982 8, 140.01 2001 42, 382.29 1983 6, 231.88 2002 47, 853.12 1984 9, 937.14 2003 43, 715.94 1985 8, 007.58 2004 44, 003.84 1986 20, 666.40 2005 46, 346.67 1987 22, 772.28 2006 49, 502.04
1988 16, 865.41 2007 0.00 1989 3, 325.20 2008 0.00 1990 15, 021.47 2009 0.00 199118, 436.10 2010 0.00 1992 19, 835.04 2011 0.00
(Tr. at 135-136).
In a Function Report dated June 20, 2010, plaintiff reported that his condition does not affect his ability to remember, concentrate, understand, complete tasks, follow instructions or use his hands (Tr. at 172). He can pay attention for a "long time, " he can follow written and spoken instructions "very well, " he handles stress and changes in routine "very well, " and he has "no problem" getting along with authority figures (Tr. at 172-173).
Missouri Supplemental Questionnaire
In this document, dated June 20, 2010, plaintiff reported that he is able to drive and he was receiving Medicaid benefits (Tr. at 176).
Function Report - Third Party
On June 23, 2010, Mary Pemberton, a friend, completed this form and reported that plaintiff is able to drive a car, pay his bills, count change, handle bank accounts, watch movies, read the Bible, go to church and his kids' sporting events, and go out alone (Tr. at 181-188). His conditions do not affect his ability to sit, climb stairs, squat, kneel or use his hands. His conditions do not affect his ability to understand, follow instructions, complete tasks, remember, concentrate or get along with others. He can pay attention for a long time, he follows written and spoken instructions very well, he is "a very happy man" and gets along with everyone, he handles stress "in a very calm manner, " and he handles changes in routine very well.
B. SUMMARY OF TESTIMONY
During the June 18, 2012, hearing, plaintiff testified; and Kristine Skahan, a vocational expert, testified at the request of the ALJ.
1. Plaintiff's testimony.
Plaintiff was 52 years of age at the time of the administrative hearing (Tr. at 32). Plaintiff was living in a four-plex with his two sons and one nephew, ages 17, 19 and 21 (Tr. at 33). He was 5'9" tall and weighed 225 pounds (Tr. at 33). He has a high school education (Tr. at 33). Plaintiff also has a 28-year-old daughter and he has a 14-year-old son who lives with the child's mother (Tr. at 35).
Plaintiff has a driver's license with no restrictions, but he drives very little (Tr. at 34). During a typical week, he may drive to the store and back once and to QuikTrip and back twice to buy soda (Tr. at 34, 43). Plaintiff was living off his nephew's SSI income of $722 per month (Tr. at 34). Plaintiff was also receiving food stamps (Tr. at 35).
Plaintiff was using a cane on the day of his administrative hearing; however, no doctor has ever prescribed it (Tr. at 35). Plaintiff uses the cane because of problems balancing (Tr at 46). He had ...