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Clark v. Colvin

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

August 29, 2016

LISA A. CLARK, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          ROBERT E. LARSEN, United States Magistrate Judge

         Plaintiff Lisa Clark 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 the ALJ erred in finding that plaintiff can perform substantial gainful activity because the hypothetical relied on by the ALJ was not consistent with the residual functional capacity assessment, and the number of jobs available is not significant. I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff was not disabled before June 1, 2013. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.

         I. BACKGROUND

         On August 24, 2011, plaintiff applied for disability benefits alleging that she had been disabled since November 1, 1990. Plaintiff's application was denied on November 1, 2011. Plaintiff requested a hearing before an administrative law judge; however, she withdrew that request due to incarceration and her hearing request was dismissed on July 16, 2012. After her release, on April 30, 2013, plaintiff requested that her claim be reopened. On May 13, 2013, plaintiff's claim was reopened. On October 10, 2013, a hearing was held before an Administrative Law Judge. During the hearing, plaintiff amended her alleged onset date to July 14, 2010, because she had filed previous applications for disability benefits which were denied on July 13, 2010, by an administrative law judge, thus barring any claim for disability prior to that date. On December 17, 2013, the ALJ found that plaintiff became disabled on June 1, 2013, but that she was not under a “disability” as defined in the Act prior to that date. On March 23, 2015, 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?
Yes = not disabled.
No = go to next step.
2. Does the claimant have a severe impairment or a combination of impairments which significantly limits his ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3. Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
4. Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5. Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.

         IV. THE RECORD

         The record consists of the testimony of plaintiff and vocational expert Suzanne Hullender, in addition to documentary evidence admitted at the hearing.


         The record contains the following administrative reports:

         Earnings Record

         The record shows that plaintiff earned the following income from 1975 through 2012:






$ 1, 015.35


$ 0.00














2, 023.85




5, 759.95




10, 044.38




3, 027.19




1, 523.85




5, 228.28


1, 443.14


2, 886.46


3, 981.22


2, 233.14


9, 061.82


3, 629.23


3, 141.92


4, 547.02


5, 442.98


5, 400.35


14, 533.12


1, 507.73















(Tr. at 214-217).

         Function Report Adult - Third Party

         On October 10, 2011, plaintiff's mother, Ruth Ann Clark, completed a Third Party Function Report (Tr. at 258-266). Ms. Clark noted that she and plaintiff are together almost 24 hours a day, every day. Plaintiff has to be reminded to bathe and shampoo her hair, but she has no difficulty with any other personal care (Tr. at 259). Plaintiff cannot do laundry very often because the washer is in the basement and she cannot navigate the stairs. Plaintiff cannot pay bills, handle a savings account, or use a checkbook or money orders because she has no concept of the value of money (Tr. at 261). Plaintiff attends church and Alcohols Anonymous (“AA”) meetings. Plaintiff has a very short fuse, is very bossy. Her impairments affect her ability to lift, sit, walk, climb stairs, squat, kneel, bend, stand, follow instructions, complete tasks, get along with others, remember and concentrate. Plaintiff lost her job at Kingdom Projects because she was “not a team player.”

         Function Report

         On October 10, 2011, plaintiff completed a Function Report (Tr. at 267-274). She described her day as napping, watching television, eating, helping her mother with household chores, and going to AA meetings once a week. Plaintiff reported, as far as her ability to handle money, “If I get it, I spend it.” (Tr. at 271).


         On January 27, 2009, plaintiff was evaluated upon being taken in custody. She reported smoking a pack of cigarettes per day for the past 28 years (Tr. at 327, 330, 342, 475-477). She reported asthma, joint pain, and a ruptured disc in her back (Tr. at 331, 477). A mental health intake screening was done, but no “immediate” mental health referral was done; a routine mental health referral was done instead (Tr. at 331). The following day she was observed to have a stiff gait (Tr. at 333). She was prescribed Naproxen (non-steroidal anti-inflammatory). Plaintiff had lab work done and tested positive for Hepatitis C (Tr. at 336). It was recommended that she exercise, lose weight, and stop smoking (Tr. at 343, 345). The same day she had a mental status exam and was noted to have good eye contact, normal speech, normal motor activity, fair insight. She was described as cooperative with a low mood. She was anxious and tearful.

         On February 10, 2009, plaintiff had a nurse encounter and reported not being able to breathe at night causing her to awaken with panic attacks (Tr. at 457). A mental status exam was performed and plaintiff was noted to have normal memory, concentration, appearance, and affect with no suicidal ideation and no current emotional distress. Plaintiff's mental health records from Callaway Physicians and Callahan County Hospital were requested.

         On February 11, 2009, plaintiff saw a doctor who assessed degenerative disc disease and told plaintiff to take Tylenol as needed for pain (Tr. at 346). The following day plaintiff reported experiencing shortness of breath (Tr. at 346, 492). She was scheduled for a pulmonary exam (Tr. at 347).

         On February 18, 2009, plaintiff had a nurse encounter (Tr. at 457). “She has many medical problems and seeking mental health to get her out of having to complete treatment. She was explained the purpose of mental treatment. She is having some anxiety, but it is situational.” Plaintiff's mental status exam was normal as far as memory, concentration, suicidal ideation, appearance, grooming, affect. She was under no current emotional distress.

         On February 26, 2009, plaintiff reported that she has sleep apnea and is supposed to be using a CPAP[1] (Tr. at 351, 497). She reported that she was having difficulty breathing (Tr. at 497).

         On March 2, 2009, plaintiff saw a doctor and reported having left shoulder pain since a motor vehicle accident in 2008; she reported left hand numbness and sleep apnea since 2008 (Tr. at 351). Plaintiff was on interferon for Hepatitis C. She described her asthma as asymptomatic, even though she had not used any asthma medications “for a long time” (Tr. at 490). On exam plaintiff had tenderness in her left shoulder, but normal grip. She weighed 287 pounds. She was assessed with possible capsulitis of the left shoulder and history of sleep apnea. Plaintiff was to be observed at night with oxygen saturation measurements to be recorded every 2 (Tr. at 351). X-rays of the left shoulder and cervical spine were ordered. The doctor recommended that she stop smoking and start exercising (Tr. at 491).

         That same day she had a nurse encounter with regard to her mental health treatment (Tr. at 458). “She has calm[ed] down with less anxiety, concerns, and fears of entering drug treatment. She does not need mental health treatment nor psychotropic medication at this time. She is requesting psychotropic medication to help her with explosive attitude.” Plaintiff's mental status exam was normal.

         On March 3, 2009, plaintiff told the prison doctor that she had degenerative disc disease (Tr. at 492). Plaintiff had no swelling or inflammation. She was told to continue taking Tylenol as needed for pain and not to take Naproxen since she had no inflammation.

         On March 9, 2009, plaintiff reported that her “left hand is getting number all the time.” (Tr. at 352, 498). Plaintiff had decreased grip in her left hand along with slight swelling.

         On March 11, 2009, plaintiff continued to complain of inflammation in her joints (Tr. at 354). The following day, records indicate that plaintiff continued to be evaluated for her need for oxygen to prevent low oxygen saturation (Tr. at 355).

         On March 12, 2009, plaintiff reported having had a motor vehicle accident in 2008 and having left shoulder pain, left hand numbness, and sleep apnea “since the injury” (Tr. at 497). Plaintiff reported a history of Hepatitis C and said she was on interferon for that. On exam plaintiff's heart and lungs were normal, left shoulder abduction (raising the arm at the side of the body) was 80 degrees (normal is 180 degrees), she had tenderness in the post deltoid area, her grip strength was normal. X-rays of the left shoulder and cervical spine were ordered.

         On March 13, 2009, it was noted that plaintiff had periods of apnea with oxygen saturation of 79% for one to two minutes at a time during sleep (Tr. at 355). That same day, plaintiff complained of severe back pain -- “it was the bed I slept in in TCU last night” (Tr. at 356, 502). Plaintiff's gait was steady and she was able to get off and on the exam table; therefore, the nurse determined that plaintiff's pain was “not an emergency.” On March 16, 2009, plaintiff saw the prison doctor who assessed sleep apnea based on her oxygen saturation levels of 79% during sleep as well as observations of loud snoring and periods during which plaintiff appeared to stop breathing (Tr. at 357). The doctor ordered a sleep study. The sleep study was scheduled for May 6, 2009; however, plaintiff declined the sleep study (Tr. at 358).

         On March 18, 2009, plaintiff had x-rays of her cervical spine which showed degenerative changes at ¶ 5-6 with osteophyte formation and disc space narrowing as well as evidence of paraspinous muscle spasms (Tr. at 357, 503). X-rays of her left shoulder showed an old clavicle fracture and hypertrophic changes at the AC joint.

         That same day plaintiff was seen by a nurse for mental health treatment (Tr. at 458). Plaintiff continued to complain of feeling depressed. “She continues to seek medication for anxiety and depression.” Plaintiff reported having difficulty dealing with drug treatment and the women in her unit. Her mental status exam was normal except for an anxious affect. “Currently adjusting to being in treatment and prison.” On March 20, 2009, plaintiff complained that she had seen the doctor about her back pain and was told “there is no need for Naproxen because there is no inflammation.” She had been put on Tylenol, but she complained that it was not helping at all. Her back, hips and knees were causing her severe pain (Tr. at 359, 505). The nurse observed that plaintiff had no swelling in her hips or knees, her gait was steady, and she had full range of motion in her appendages. Therefore, she was told to continue taking Tylenol for pain. Three days later plaintiff saw the doctor to review her x-rays (Tr. at 360). The doctor told plaintiff to take Tylenol three times a day for three months. On March 26, 2009, the doctor directed that plaintiff's medical records from University Physicians be faxed to the prison “regarding arthritis and ruptured disk.” (Tr. at 361, 507). Those records were received on March 30, 2009 (Tr. at 362). On April 2, 2009, plaintiff saw the doctor who reviewed the records from University Physicians (Tr. at 363). The records showed a fracture of her left hand on December 2, 2008; x-rays of the lumbar spine showed degeneration; x-rays of the left hip were negative; and there was an assessment of degenerative arthritis of the lumbar spine. The doctor assessed degenerative arthritis of the lumbar spine and told plaintiff to continue taking Tylenol.

         On April 6, 2009, plaintiff's mother called the prison and spoke to a nurse about plaintiff's medical problems (Tr. at 363, 509). The nurse told plaintiff's mother that due to plaintiff's Hepatitis C and other health issues, plaintiff was being started on an APAP.[2] (Tr. at 363).

         On April 21, 2009, plaintiff saw a nurse for treatment of Hepatitis C (Tr. at 365-366). Plaintiff was told, among other things, to stop smoking, exercise, and “avoid high doses of Tylenol.” (Tr. at 366). “For the remainder of your life, do not drink alcohol at all, or only rarely, and speak to a physician prior to taking any new medications, including over-the-counter medications such as nonsteroidal anti-inflammatory drugs” (Tr. at 366-367).

         On April 25, 2009, plaintiff saw a nurse and complained of severe pain in her back (Tr. at 370-371, 516-517). “I have a herniated disc and it is horrible and I have wanted a[n] x-ray since I got here in January. I need Naproxen and they will only give me Tylenol because of Hep C. I really don't care about the Hep C. I want Naproxen.” Plaintiff's gait was described as “slow and steady, ” she had no discoloration on her back. Plaintiff was told she could not have Naproxen, to continue taking Tylenol.

         On May 6, 2009, plaintiff again refused to schedule a sleep study; she said she “leaves in three ...

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