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Younce v. Colvin

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

August 5, 2016

EDITH L. YOUNCE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Edith L Younce, Plaintiff, represented by Dan K. Purdy.

          Carolyn W. Colvin, Defendant, represented by OGCSSAR7.

          Carolyn W. Colvin, Defendant, represented by Jeffrey P. Ray, United States Attorney's Office.


          ROBERT E. LARSEN, Magistrate Judge.

         Plaintiff Edith Younce 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 (1) she is unable to work due to heart problems, and (2) the ALJ erred in determining that her carpal tunnel syndrome is not a medically determinable impairment. 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.

          I. BACKGROUND

         On May 10, 2011, plaintiff applied for disability benefits alleging that she had been disabled since January 6, 2007. Plaintiff's disability stems from heart problems and carpal tunnel syndrome. Plaintiff's application was denied on July 28, 2011. On October 18, 2012, a hearing was held before an Administrative Law Judge. Additional medical evidence, additional vocational evidence, and comments from plaintiff's counsel were submitted after the hearing. The additional vocational evidence was submitted to plaintiff's treatment provider, Mark Vogt, D.O., at plaintiff's request; however, Dr. Vogt did not respond. On July 19, 2013, the ALJ found that plaintiff was not under a "disability" as defined in the Act. Plaintiff submitted additional medical evidence to the Appeals Council. On November 4, 2014, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the final decision of the Commissioner.


         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).


         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 Cindy Tounger, in addition to documentary evidence admitted at the hearing and presented to the Appeals Council.


         The record contains the following administrative reports:

         Earnings Record

         The record shows that plaintiff earned the following income from 1986 through 2012:


Year Earnings Year Earnings 1986 $ 1, 465.00 2000 $ 12, 903.511987 0.00 2001 5, 437.15 1988 0.00 2002 0.00 1989 0.00 2003 0.00 1990 0.00 2004 0.00 1991 288.19 2005 2, 948.19 1992 0.00 2006 19, 155.25 1993 0.00 2007 24, 273.89 1994 0.00 2008 0.00 1995 0.00 2009 0.00 1996 205.60 2010 0.00 1997 6, 358.95 2011 0.00 1998 6, 216.33 2012 0.00 1999 11, 879.30

         (Tr. at 185, 192).

         Function Report

         In a Function Report dated May 27, 2011, plaintiff indicated that she gets up and makes her bed, showers, eats, and goes to her husband's house to help with the kids (Tr. at 220-227). "I am constantly with family members because I still have dizzy, cloudy feelings." Plaintiff and her husband adopted two of their grandchildren, and plaintiff helps with their "learning, dressing, etc." Plaintiff has no problems with personal care. She prepares her own meals daily for 10 to 30 minutes with frequent rests. Plaintiff is able to separate clothes and load the washer. Bending over and then straightening back up makes her lightheaded. Plaintiff takes walks with her grandchildren, she reads and watches television. She shops in stores once or twice a month for 30 to 60 minutes at a time.

         Plaintiff's impairments affect her ability to lift, squat, bend and reach. Her impairments do not affect her ability to stand, walk, sit, kneel, climb stairs, use her hands, remember, complete tasks, concentrate, understand, follow instructions, or get along with others, except sitting hurts her back after 30 to 60 minutes (Tr. at 225).


         During the October 18, 2012, hearing, plaintiff testified; and Cindy Tounger, a vocational expert, testified via interrogatories at the request of the ALJ.

         1. Plaintiff's testimony.

         At the time of the hearing plaintiff was 53 years of age (Tr. at 84). She stopped working in November 2007, even though her alleged onset date is January 6, 2007 (Tr. at 84). Plaintiff had been working as a truck driver, a career she began in June or July of 2005 (Tr. at 84). She worked for three different companies as a truck driver (Tr. at 84).

         Before working as a truck driver, plaintiff tried to do many things (Tr. at 85). No one would hire her, not even Wal-Mart, because she was unable to stock the shelves- she cannot reach over her head (Tr. at 84-85). Her left arm has nerve damage, and in 1999 or 2000 some doctor at Olathe Medical Center told her not to lift that arm above her head (Tr. at 85). Plaintiff worked at Rival's from 1996 to 2000 and has had trouble with her arms since then (Tr. at 85-86).

         Plaintiff stopped working in November 2007 because she fell off a truck and landed on her face-the fall was caused by dizziness (Tr. at 86). This occurred at a rest stop in Pennsylvania (Tr. at 86). Plaintiff did not seek medical attention at the time (Tr. at 86). The day after the fall, the right side of her face was bruised and she had blood in her eye (Tr. at 86). When she got home from that trip, she decided that driving a truck was not worth taking that risk again (Tr. at 86).

         Plaintiff was having dizziness because of the circulation in her body (Tr. at 86). She first had heart problems in January 2007-she was parked at a truck stop in Davenport, Iowa, and she got up at 6:00 a.m. to call her husband to wake him up so he could get their kids off to school (Tr. at 86). She started having chest pain and knew was what going on because her father had had heart trouble (Tr. at 86-87). She told her co-driver that she was having a heart attack and to call 911 (Tr. at 87). Because of that heart attack, plaintiff was not permitted to drive a truck from January until March (Tr. at 87). In March 2007, she convinced the doctor that she was feeling better, so the doctor released her to go back to work (Tr. at 87). But when she got on the truck, the truck bothered her heart a lot (Tr. at 87). She was tired a lot, and when she was driving she could feel her heart fluttering (Tr. at 87). She continued working from March 2007 until November 2007 when she fell out of the truck due to the dizziness (Tr. at 87). She had been getting dizzy a lot before that, but she wanted to keep her job so she just "took it slow" (Tr. at 87).

         Since she quit driving a truck, plaintiff has tried to get other jobs (Tr. at 87). Wal-Mart will not hire her because she is unable to stock shelves "and that's where they put you at first." (Tr. at 87). Plaintiff would not be able to do a job that required sitting most of the day with no driving or moving around because her legs go to sleep and she gets knots in them all the time (Tr. at 87-88). Her doctor said not to worry about it, that it is not related to blood clots (Tr. at 88). But she has knots in her legs that make her feet and legs go to sleep a lot (Tr. at 88). She also has pain in her neck, back, arms and hands (Tr. at 88). Her pain is "all over" (Tr. at 88). Her doctors have not provided any treatment for this pain (Tr. at 88). One doctor told her to take Ibuprofen (which did help her pain), but her cardiologist told her not to because it would thin her blood (Tr. at 88). He told her to take Tylenol, but it does not work (Tr. at 88). There are no further surgeries that can be done to help plaintiff's arms and hands (Tr. at 89).

         Plaintiff throws up almost every morning because of gastroesophageal reflux disease ("GERD") (Tr. at 89). She has told her doctor about it but he has kept her on the same medications (Tr. at 89). If she takes an over-the-counter medication for GERD, she feels better about a half hour later (Tr. at 89).

         Plaintiff has headaches daily due to a blood thinner she is taking (Tr. at 89). Dr. Vogt, her primary care physician, told her this medication would give her headaches (Tr. at 90). Plaintiff's daily headaches are a 7 out of 10 in severity (Tr. at 90). Plaintiff's medications also cause nausea and vomiting (Tr. at 92). When she passes bile, she feels better (Tr. at 92).

         Plaintiff began having memory problems after her last heart attack on April 30, 2011 (Tr. at 90-91). She is also depressed because she has seven grandchildren and cannot do much with them because of her condition (Tr. at 91). She has not been treated for depression although she has told her doctors about it (Tr. at 91). Her doctors have told her to go to Pathways for treatment but she does not want to do that because it will be on her records and her grandchildren may see it, so she is trying to deal with it on her own (Tr. at 92). She has been depressed since she quit work because she has always worked, [1] and she had plans for the money (Tr. at 92).

         Plaintiff can sit for 30 minutes at a time and then she needs to stand (Tr. at 93). She lives with her mother and her mother's boyfriend, and plaintiff tries to keep the house up because her mother works caring for the elderly (Tr. at 93, 96). Plaintiff does the dishes but sometimes has to sit down two or three times before she is finished (Tr. at 93). She can only stand to do dishes for 5 to 10 minutes at a time, then she has to sit down for 5 or 10 minutes to catch her breath (Tr. at 93). She gets out of breath easily when she walks (Tr. at 93). Walking and standing do not cause pain (Tr. at 93-94). Plaintiff can walk about a city block before she is out of breath (Tr. at 94). She tried to carry a 10-pound bag of potatoes the day before the hearing but her mother had to take it from her because her hands were not gripping properly (Tr. at 94). Plaintiff tries to carry things for her mother, even though lifting causes pain in her wrists and hands (Tr. at 94-95). After she carries something, her pain will usually go away if she moves her hands around, but sometimes she has to take Tylenol (Tr. at 95).

         Plaintiff has trouble bending-she had an accident when she was younger and now if she bends over for more than 15 or 20 minutes a knot the size of a fist comes up and bothers her (Tr. at 95). She also has trouble straightening back up (Tr. at 95). If ...

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