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Cook v. Colvin

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

September 6, 2016

JASON D. COOK, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          ROBERT E. LARSEN United States Magistrate Judge.

         Plaintiff Jason Cook seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Title II of the Social Security Act (“the Act”). Plaintiff argues that the ALJ erred in finding plaintiff's testimony regarding the effects of his impairments not entirely credible. 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 October 10, 2012, plaintiff applied for disability benefits alleging that he had been disabled since March 1, 2008. He later amended his alleged onset date to August 17, 2012, the day he stopped working (Tr. at 29, 124). Plaintiff's disability stems from Crohn's disease, short bowel syndrome, fistula, chronic fatigue, abdominal pain with diarrhea and vomiting, possible colon cancer and malnutrition (Tr. at 50, 124). Plaintiff's application was denied on November 28, 2012. On March 4, 2014, a hearing was held before an Administrative Law Judge. On March 27, 2014, the ALJ found that plaintiff was not under a “disability” as defined in the Act. On May 7, 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 Denise Weaver, 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 2002 through 2011:






$3, 837.29



















(Tr. at 117).

         Function Report

         In a Function Report dated October 28, 2012, plaintiff reported that he watches television and does small things for his four-year-old daughter. He naps from noon until 3:00 p.m., then visits with his wife and children until he goes to bed around 9:00 or 10:00 p.m. (Tr. at 139). Plaintiff stays at home with his four-year-old and cares for her during the day (Tr. at 140). Plaintiff can care for his personal needs (Tr. at 140), and he prepares his own meals such as sandwiches, fresh meat, potatoes, vegetables, and grain products (Tr. at 141). His cooking depends on what hours his wife works; sometimes she prepares meals (Tr. at 141). When plaintiff cooks, it takes him 35 minutes to an hour (Tr. at 141).

         Plaintiff can do laundry and do simple tasks around the house (Tr. at 141). He has to stay near a bathroom and his fatigue causes him to lie down every couple of hours (Tr. at 141). He does not drive because he does not have a driver's license (Tr. at 142). Plaintiff plays his guitar every day for about 20 minutes (Tr. at 143). Plaintiff only goes out to go to the doctor or to go next door to his mother's house (Tr. at 143).

         Plaintiff's impairments affect his ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks, and use his hands (Tr. at 144). He can walk for 100 yards before needing to rest (Tr. at 144). He has to sit for an hour to build up energy after walking 100 yards (Tr. at 144). He can pay attention “as long as needed.” (Tr. at 144). He finishes what he starts, and he can follow directions very well (Tr. at 144).

         Missouri Supplemental Questionnaire

         In this form, dated October 28, 2012, plaintiff reported that he plays video games, puzzles or uses a computer for 20 to 30 minutes at one sitting (Tr. at 148). He had a driver's license, but it was suspended (Tr. at 148). Plaintiff reported that he was not able to complete the form without help -- his wife wrote his answers because his wrist causes him too much pain to write (Tr. at 149).


         On August 17, 2012, plaintiff stopped working. This is his amended alleged onset date.

         On August 20, 2012, plaintiff saw Carey Vaughan, D.O., to establish care (Tr. at 195-196). Plaintiff said he had had Crohn's disease[1] since 2008. “Does well on meats, cooked veggies, does bad on raw foods especially w/seeds.” For the past two weeks he had been running a fever of up to 102 degrees. Plaintiff reported low back pain and abdominal cramps. Plaintiff reported having lost 60 pounds since February or March of 2012, and said he had diarrhea constantly. Plaintiff weighed 199 pounds. After performing a physical exam, Dr. Vaughan assessed Crohn's disease, fever of unknown origin, weight loss, diarrhea, and tachycardia.[2]She ordered fasting labs, told plaintiff to increase his sulfasalazine[3] which he had begun taking sometime that year (the month is illegible), ordered a chest x-ray and colonoscopy, and prescribed Atenolol for tachycardia.

         On August 24, 2012, plaintiff had a colonoscopy performed by Terry Nold, D.O., due to acute onset of diarrhea with transient bright red rectal bleeding (Tr. at 186). “Patient with prior diagnosis of Crohn's disease diagnosed at the University of Missouri. He has been placed on Azulfidine 1000 mg daily and he has done quite well until recently. He was feeling well and subsequently discontinued his medication.” Plaintiff was assessed with acute proctocolitis (inflammation of the colon and rectum) with diffuse ulceration and granuloma formation. He was told to continue Asacol (non-steroidal anti-inflammatory), and he was prescribed Prednisone (steroid) daily for one week with a reduced dosage each week for six weeks. A repeat colonoscopy was recommended in 8 to 12 weeks.

         (IMAGE OMITTED)

         On September 19, 2012, plaintiff saw Carey Vaughan, D.O., for a follow up (Tr. at 194). "Has been doing better since he was put on the steroids but he noticed more pain & D since his dose has been reduced. . . . Still having pain most days." Plaintiff weighed 190 pounds. His physical exam was normal. Plaintiff's dose of Prednisone was continued at 40 mg and he was told to begin to taper it in two weeks. "Advised to ...

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