United States District Court, E.D. Missouri, Eastern Division
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[Copyrighted Material Omitted]
Dale Frank, Plaintiff: Kathleen E. Overton, LEAD ATTORNEY,
PARMELE LAW FIRM, P.C., Springfield, MO.
Carolyn W. Colvin, Acting Commissioner of SSA, Defendant:
Jane Rund, LEAD ATTORNEY, OFFICE OF U.S. ATTORNEY, St. Louis,
C. Collins, UNITED STATES MAGISTRATE JUDGE.
an action under Title 42 U.S.C. 405(g) for judicial review of
the final decision of the Commissioner denying the
application of Dale Frank (Plaintiff) for Disability
Insurance Benefits (DIB) under Title II of the Social
Security Act (the Act), 42 U.S.C. § § 401 et seq.,
and for Supplemental Security Income (SSI), under Title XVI
of the Social Security Act, 42 U.S.C. § § 1381 et
seq. Plaintiff has filed a brief in support of the Complaint.
(Doc. 12). Defendant has filed a brief in support of the
Answer. (Doc. 17). The parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge pursuant to Title 28 U.S.C. § 636(c). (Doc. 8).
January 25, 2011, Plaintiff filed his applications for DIB
and SSI. (Tr. 152-67). Plaintiff alleged a disability onset
date of March 1, 2009. Plaintiff's applications
were denied, and he requested a hearing before an
Administrative Law Judge (ALJ). (Tr. 100-104, 107-108). After
a hearing, by decision, dated November 30, 2012, the ALJ
found Plaintiff not disabled. (Tr. 11-23). On February 3,
2014, the Appeals Council denied Plaintiff's request for
review. (Tr. 1-7). As such, the ALJ's decision stands as
the final decision of the Commissioner.
the Social Security Act, the Commissioner has established a
five-step process for determining whether a person is
disabled. 20 C.F.R. § § 416.920, 404.1529. "
'If a claimant fails to meet the criteria at any step in
the evaluation of disability, the process ends and the
claimant is determined to be not disabled.'"
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)
(quoting Eichelberger v. Barnhart, 390 F.3d 584,
590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in " substantial
gainful activity" to qualify for disability benefits. 20
C.F.R. § § 416.920(b), 404.1520(b). Second, the
claimant must have a severe impairment. 20 C.F.R. §
§ 416.920(c), 404.1520(c). The Social Security Act
defines " severe impairment" as " any
impairment or combination of impairments which significantly
limits [claimant's] physical or mental ability to do
basic work activities." Id. " The
sequential evaluation process may be terminated at step two
only when the claimant's impairment or combination of
impairments would have no more than a minimal impact on [his
or] her ability to work." Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v.
Massanari, 250 F.3d 603, 605 (8th Cir. 2001) (citing
Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir.
the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the
Regulations. 20 C.F.R. § § 416.920(d), 404.1520(d);
pt. 404, subpt. P, app. 1. If the claimant has one of, or the
medical equivalent of, these impairments, then the claimant
is per se disabled without consideration of the
claimant's age, education, or work history. See
the impairment must prevent the claimant from doing past
relevant work. 20 C.F.R. § § 416.920(f),
404.1520(f). The burden rests with the claimant at this
fourth step to establish his or her Residual Functional
Capacity (RFC). See Steed v. Astrue, 524 F.3d 872,
874 n.3 (8th Cir. 2008) (" Through step four of this
analysis, the claimant has the burden of showing that she is
disabled." ); Eichelberger, 390 F.3d at 590-91;
Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir.
2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th
Cir. 2000). The ALJ will review a claimant's RFC and the
physical and mental demands of the work the claimant has done
in the past. 20 C.F.R. § 404.1520(f).
the severe impairment must prevent the claimant from doing
any other work. 20 C.F.R. § § 416.920(g),
404.1520(g). At this fifth step of the sequential analysis,
the Commissioner has the burden of production to show
evidence of other jobs in the national economy that can be
performed by a person with the claimant's RFC. See
Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at 1069 n.5.
If the claimant meets these standards, the ALJ will find the
claimant to be disabled. " The ultimate burden of
persuasion to prove disability, however, remains with the
claimant." Id. See also Harris v.
Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004) (citing
68 Fed.Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v.
Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (" The
burden of persuasion to prove disability and to demonstrate
RFC remains on the claimant, even when
the burden of production shifts to the Commissioner at step
five." ); Charles v. Barnhart, 375 F.3d 777,
782 n.5 (8th Cir. 2004) (" [T]he burden of production
shifts to the Commissioner at step five to submit evidence of
other work in the national economy that [the claimant] could
perform, given her RFC." ). Even if a court finds that
there is a preponderance of the evidence against the
ALJ's decision, the decision must be affirmed if it is
supported by substantial evidence. See Clark v.
Heckler, 733 F.2d 65, 68 (8th Cir. 1984). "
Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to
support the Commissioner's conclusion."
Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir.
2002). See also Cox v. Astrue, 495 F.3d 614, 617
(8th Cir. 2007). In Bland v. Bowen, 861 F.2d 533,
535 (8th Cir. 1988), the Eighth Circuit Court of Appeals
The concept of substantial evidence is something less than
the weight of the evidence and it allows for the possibility
of drawing two inconsistent conclusions, thus it embodies a
zone of choice within which the Secretary may decide to grant
or deny benefits without being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th
Cir. 2006) (" [W]e may not reverse merely because
substantial evidence exists for the opposite decision."
) (quoting Johnson v. Chater, 87 F.3d 1015, 1017
(8th Cir. 1996)); Hartfield v. Barnhart, 384 F.3d
986, 988 (8th Cir. 2004) (" [R]eview of the
Commissioner's final decision is deferential." ).
not the job of the district court to re-weigh the evidence or
review the factual record de novo. See Cox, 495 F.3d
at 617; Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302
(8th Cir. 1993); Murphy v. Sullivan, 953 F.2d 383,
384 (8th Cir. 1992). Instead, the district court must simply
determine whether the quantity and quality of evidence is
enough so that a reasonable mind might find it adequate to
support the ALJ's conclusion. See Davis v.
Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000)). Weighing the evidence is a function of the ALJ, who
is the fact-finder. See Benskin v. Bowen, 830 F.2d
878, 882 (8th Cir. 1987). See also Onstead v.
Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding
that an ALJ's decision is conclusive upon a reviewing
court if it is supported by " substantial evidence"
). Thus, an administrative decision which is supported by
substantial evidence is not subject to reversal merely
because substantial evidence may also support an opposite
conclusion or because the reviewing court would have decided
differently. See Krogmeier, 294 F.3d at 1022. See
also Eichelberger, 390 F.3d at 589; Nevland v.
Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (quoting
Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir.
1998)); Hutsell v. Massanari, 259 F.3d 707, 711 (8th
determine whether the Commissioner's final decision is
supported by substantial evidence, the court is required to
review the administrative record as a whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the
(3) The medical evidence given by the claimant's treating
(4) The subjective complaints of pain and description of the
claimant's physical activity and impairment;
(5) The corroboration by third parties of the claimant's
(6) The testimony of vocational experts based upon proper
which fairly set forth the claimant's physical
(7) The testimony of consulting physicians.
Brand v. Sec'y of Dep't of Health, Educ. &
Welfare, 623 F.2d 523, 527 (8th Cir. 1980); Cruse v.
Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
an ALJ's decision must comply " with the relevant
legal requirements." Ford v. Astrue, 518 F.3d
979, 981 (8th Cir. 2008).
Social Security Act defines disability as the "
inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or has
lasted or can be expected to last for a continuous period of
not less than 12 months." 42 U.S.C. § 416(i)(1)(A);
42 U.S.C. § 423(d)(1)(A). " While the claimant has
the burden of proving that the disability results from a
medically determinable physical or mental impairment, direct
medical evidence of the cause and effect relationship between
the impairment and the degree of claimant's ...