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Cloud v. Colvin

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

February 25, 2015

SANDRA CLOUD, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ORTRIE D. SMITH, Senior District Judge.

Pending is Plaintiff's appeal of the Commissioner of Social Security's final decision denying her application for Supplemental Security Income benefits under Title XVI. The Commissioner's decision is affirmed.


"[R]eview of the Secretary's decision [is limited] to a determination whether the decision is supported by substantial evidence on the record as a whole. Substantial evidence is evidence which reasonable minds would accept as adequate to support the Secretary's conclusion. [The Court] will not reverse a decision simply because some evidence may support the opposite conclusion." Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994) (citations omitted). Though advantageous to the Commissioner, this standard also requires that the Court consider evidence that fairly detracts from the final decision. Forsythe v. Sullivan, 926 F.2d 774, 775 (8th Cir. 1991) (citing Hutsell v. Sullivan, 892 F.2d 747, 749 (8th Cir. 1989)). Substantial evidence means "more than a mere scintilla" of evidence; rather, it is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th Cir. 2010).


Plaintiff alleged a disability onset date of January 14, 2005 which was later amended because she filed her claim in March 2011. Her claimed disability involves a combination of degenerative disc disease, asthma, migraine headaches, depression and high cholesterol. Plaintiff did not submit a medical opinion from her treating physician. Plaintiff underwent two consultative examinations: one performed by Dr. Charles Ash, and one performed by Dr. Thomas Corsolini. Plaintiff's primary arguments revolve around the ALJ's decision to credit Dr. Corsolini's consulting opinion over Dr. Ash's consulting opinion.

Dr. Ash examined Plaintiff in August 2011 and noted that she could stand and move satisfactorily without a limp or list and walk on toes and heels satisfactorily. While Plaintiff had "moderate difficulty arising from the exam table" she had "no difficulty arising from the chair, dressing or undressing." He noted limited motion in Plaintiff's cervical spine accompanied by tenderness in the mid and lower cervical region but no muscle spasms or deformities. R. at 363. Plaintiff exhibited normal range of motion in her upper extremities without weakness, deformity or atrophy, and strong grip/pinch strength in both hands. Plaintiff also exhibited normal motion in her hips, knees and ankles with no deformities. Dr. Ash diagnosed Plaintiff as suffering from "[p]robable degenerative arthritis cervical spine" and "[p]robable degenerative lumbar spine with sciatica and slight sensory deficit." Based on his findings he concluded Plaintiff could "stand and walk two hours in a workday. She can sit eight hours in a workday. She can lift 20 pounds occasionally and 10 pounds frequently. She has slight sensory deficit using the hands." R. at 364. Dr. Ash did not indicate that he had access to or reviewed Plaintiff's medical records.

A hearing was held in October 2012 - more than a year after Dr. Ash's examination. Plaintiff continued receiving treatment in the interim, including undergoing an MRI in October 2011. At the end of the hearing, the ALJ stated: "I think I need more information. I'm going to ask the state agency to schedule a consultative exam with a doctor of physical medicine and rehab so we can get an assessment of functional... capacity so we'll leave the record open for that...." R. at 66-67.

Dr. Corsolini saw Plaintiff in November 2012, and he reviewed Plaintiff's medical records as part of his evaluation. The MRI revealed the status of her 2004 discectomy and fusion at C5-6, a "minimal disc bulge at the C67 level, [and] no evidence of neural foraminal stenosis." A bone density test from June 2011 revealed "changes consistent with osteoporosis." An x-ray from February 2011 "discuss[ed] some anterior degenerative spurring from T4 through T 12, [and] mild degenerative changes L34 and L45." R. at 403.

Plaintiff had a "relatively low willingness to demonstrate any movements during the physical examination" and Dr. Corsolini assessed her effort as "Poor." Nonetheless, he determined her reflexes were intact in all four extremities and that there was no muscle atrophy in any of her extremities. Plaintiff demonstrated limited range of motion in her cervical rotation, however. The straight leg raising test indicated "low back discomfort, but no leg pain reported." Dr. Corsolini concluded that despite Plaintiff's "limited levels of apparent effort... her diagnostic studies are not significantly abnormal, and her physical examination shows no evidence of specific neurological injury or abnormality." R. at 403-05. His narrative also recites that Plaintiff's upper extremity range of motion was within normal limits. R. at 403.

Dr. Corsolini's medical source statement ("MSS") indicates Plaintiff can lift and carry up to ten pounds frequently and up to twenty pounds occasionally, sit for two hours at a time and eight hours per day, and stand and walk for one hour at a time and four hours per day. R. at 397-98. The MSS also indicates Plaintiff can occasionally reach overhead and reach in other directions. R. at 399.

The hearing commenced in April 2013. In posing questions to the VE, an inconsistency was observed between Dr. Corsolini's assessments that (1) Plaintiff's upper extremity use was within normal limits and (2) Plaintiff could only occasionally reach overhead and in all other directions. R. at 34-35. Counsel also observed ambiguity as to whether Dr. Corsolini's MSS meant to indicate that (1) Plaintiff could stand or walk a total of four hours per day combined or (2) Plaintiff could stand or walk for four hours each per day, for a total of eight hours combined. R. at 40. Questions designed to clarify these issues were submitted in writing to Dr. Corsolini after the hearing. He responded that "the combined total standing and walking in an 8 hour work day" that Plaintiff could perform was eight hours. He answered "no" when asked whether, "[a]part form her ability to reach overhead, is Ms. Cloud unable to frequently extend her arms in front of her body in all other directions?" R. at 413-14.[1]

The ALJ found Plaintiff could lift ten pounds frequently and twenty pounds occasionally, stand for one hour at a time, walk for one hour at a time, stand or walk a total of eight hours per day, and sit two hours at a time and eight hours per day. He also found Plaintiff could occasionally reach overhead but had no other restrictions on her ability to reach or use her upper extremities. R. at 19. Based on these findings, other factors included in the residual functional capacity, and the vocational expert's testimony, the ALJ found Plaintiff could not perform her past relevant work but could perform work as a light unskilled production assembler or a light unskilled small products assembler.

In comparing the consultants' reports, the ALJ noted that unlike Dr. Corsolini, Dr. Ash did not consider Plaintiff's medical records and (also unlike Dr. Corsolini) Dr. Ash did not have access to "medical evidence that was not available at the time of his examination" - a reference, minimally, to the October 2011 MRI. The ALJ also noted that Dr. Ash's opinion regarding Plaintiff's limited ability to stand ...

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