United States District Court, W.D. Missouri, Central Division
JASON D. COOK, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
E. LARSEN United States Magistrate Judge.
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.
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.
STANDARD FOR JUDICIAL REVIEW
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
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).
BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
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).
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
Yes = disabled.
No = go to next step.
4. Does the impairment prevent the claimant from doing past
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5. Does the impairment prevent the claimant from doing any
Yes = disabled.
No = not disabled.
record consists of the testimony of plaintiff and vocational
expert Denise Weaver, in addition to documentary evidence
admitted at the hearing.
record contains the following administrative reports:
record shows that plaintiff earned the following income from
2002 through 2011:
(Tr. at 117).
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).
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
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).
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).
SUMMARY OF MEDICAL RECORDS
August 17, 2012, plaintiff stopped working. This is his
amended alleged onset date.
August 20, 2012, plaintiff saw Carey Vaughan, D.O., to
establish care (Tr. at 195-196). Plaintiff said he had had
Crohn's disease 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.She ordered fasting labs, told
plaintiff to increase his sulfasalazine which he had begun taking
sometime that year (the month is illegible), ordered a chest
x-ray and colonoscopy, and prescribed Atenolol for
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.
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 ...