Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bungart v. Colvin

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

May 29, 2015

PAULA BUNGART, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ROBERT E. LARSEN, Magistrate Judge.

Plaintiff Paula Bungart 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"). I find that the ALJ's opinion is not supported by substantial evidence in the record as a whole. Therefore, plaintiff's motion for summary judgment will be granted and the decision of the Commissioner will be reversed.

I. BACKGROUND

On March 28, 2012, plaintiff applied for disability benefits alleging that she had been disabled since January 1, 2009. Plaintiff's application was denied on May 3, 2012. On May 1, 2013, a hearing was held before an Administrative Law Judge. On May 30, 2013, the ALJ found that plaintiff was not under a "disability" as defined in the Act. On March 14, 2014, 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 Denise Weaver, in addition to documentary evidence admitted at the hearing.

A. EARNINGS RECORD

The record shows that plaintiff earned the following income from 1972 through 2013:

Year Earnings Year Earnings 1972 $ 358.00 1993 $ 3, 764.47 1973 144.98 1994 6, 732.50 1974 2, 235.58 1995 2, 833.08 1975 1, 226.45 1996 3, 002.68

1977 417.00 1998 4, 550.10 1978 687.43 1999 10, 053.09 1979 625.00 2000 11, 262.39 1980 0.00 200116, 232.30 1981 2, 233.60 2002 18, 066.011982 2, 115.51 2003 7, 912.44 1983 0.00 2004 7, 497.35 1984 0.00 2005 5, 040.911985 0.00 2006 0.00 1986 90.00 2007 1, 787.98 1987 0.00 2008 638.26 1988 0.00 2009 0.00 1989 310.40 2010 3, 274.211990 1, 590.36 20111, 491.56 1991 4, 299.70 2012 0.00 1992 448.00 2013 0.00

(Tr. at 244-245, 264).

B. SUMMARY OF MEDICAL RECORDS

Because the dispositive issue in this case is plaintiff's migraine headaches, I have limited my summary of the medical records to this area.

On October 2, 2008, plaintiff had a sonographic evaluation of the carotid systems due to complaints of headaches (Tr. at 342, 649, 655). She had stenosis (narrowing) in the mid left internal carotid artery. Plaintiff was notified by her treating physician, Dustin Warbritton, D.O., of this blockage on October 8, 2008 (Tr. at 441). Two days earlier he had refilled her Darvocet (narcotic), 60 pills with one refill (Tr. at 442).

On November 21, 2008, Dr. Warbritton refilled plaintiff's Darvocet (narcotic), 60 pills with one refill (Tr. at 436).

On December 1, 2008, Dr. Warbritton refilled plaintiff's Ativan, [1] 60 pills with one refill (Tr. at 435).

On December 10, 2008, plaintiff saw Dr. Warbritton complaining of daily headaches (Tr. at 433-434). Dr. Warbritton diagnosed migraine (Tr. at 433). He prescribed Imitrex.

On January 9, 2009, Dr. Warbritton refilled plaintiff's Imitrex, 9 treatments with one refill (Tr. at 432, 801).

On January 21, 2009, Dr. Warbritton refilled plaintiff's Darvocet (narcotic), 60 pills with one refill (Tr. at 431, 800).

On March 4, 2009, Dr. Warbritton refilled plaintiff's Ativan, 60 pills with one refill (Tr. at 430, 799).

On March 23, 2009, Dr. Warbritton refilled plaintiff's Darvocet (narcotic), 60 pills with one refill (Tr. at 429, 798).

On April 29, 2009, Dr. Warbritton prescribed Darvocet (narcotic), 60 pills with one refill (Tr. at 425, 794).

On May 12, 2009, Dr. Warbritton refilled plaintiff's Ativan, 60 pills with one refill (Tr. at 424, 793).

On May 27, 2009, plaintiff saw Dr. Warbritton and was found to have muscle spasm in the back of her neck (Tr. at 420-422, 789-791). She was experiencing nausea and vomiting. Plaintiff was prescribed Darvocet (narcotic) with one refill; Imitrex, 9 doses with one refill; Ativan, 60 pills with one refill, and was told to continue over-the-counter Excedrin as well.

On July 1, 2009, Dr. Warbritton refilled plaintiff's Imitrex, 9 doses with one refill (Tr. at 413, 782).

On July 10, 2009, Dr. Warbritton refilled plaintiff's Ativan, 60 pills with no refills (Tr. at 411, 780).

On September 15, 20090, Dr. Warbritton refilled plaintiff's Ativan, 60 pills with no refills (Tr. at 410, 779).

On October 19, 2009, Dr. Warbritton refilled plaintiff's Ativan with no refills (Tr. at 409, 777-778).

On October 29, 2009, Dr. Warbritton refilled plaintiff's Ativan, 60 pills with one refill (Tr. at 408).

On February 2, 2010, Dr. Warbritton refilled plaintiff's Ativan, 90 pills (Tr. at 401, 770).

On March 26, 2010, Dr. Warbritton refilled plaintiff's Ativan, 90 pills with two ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.