United States District Court, W.D. Missouri, Western Division
EDITH L. YOUNCE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
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.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
E. LARSEN, Magistrate Judge.
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.
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.
II. STANDARD FOR JUDICIAL REVIEW
205(g) of the Act, 42 U.S.C. Â§ 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. Â§ 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
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
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. Â§
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).
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. Â§Â§ 404.1501, et seq. The five-step
sequential evaluation process used by the Commissioner is
outlined in 20 C.F.R. Â§ 404.1520 and is summarized as
the claimant performing substantial gainful activity?
the claimant have a severe impairment or a combination of
impairments which significantly limits his ability to do
basic work activities?
the impairment meet or equal a listed impairment in Appendix
the impairment prevent the claimant from doing past relevant
the impairment prevent the claimant from doing any other
IV. THE RECORD
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.
record contains the following administrative reports:
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
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.
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).
SUMMARY OF TESTIMONY
the October 18, 2012, hearing, plaintiff testified; and Cindy
Tounger, a vocational expert, testified via interrogatories
at the request of the ALJ.
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).
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).
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).
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
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).
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).
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).
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,  and she had plans for the money (Tr.
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).
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