United States District Court, E.D. Missouri, Northern Division
DAWN M. TINDALL-KOLTHOFF, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE
an action under Title 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner denying the
application of Dawn M. Tindall-Kolthoff (Plaintiff) for
Disability Insurance Benefits (DIB) under Title II of the
Social Security Act (the Act), 42 U.S.C. §§ 401
et seq., and for Supplemental Security Income (SSI),
under Title XVI of the Social Security Act, 42 U.S.C.
§§ 1381 et seq. Plaintiff has filed a
Brief in Support of the Complaint. (Doc. 20). Defendant has
filed a Brief in Support of the Answer. (Doc. 17). The
parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to Title 28 U.S.C.
§ 636(c). (Doc. 10).
February 6, 2012, Plaintiff filed an application for DIB,
and, on April 16, 2012, she filed an application for SSI. In
both applications she alleged a disability onset date of
January 1, 2012. (Tr. 139-44, 145-46). Plaintiff's
applications were denied, and she requested a hearing before
an Administrative Law Judge (ALJ). (Tr. 78-79, 90-91). After
a hearing, by decision, dated February 12, 2014, the ALJ
found Plaintiff not disabled. (Tr. 11-25). On June 5, 2015,
the Appeals Council denied Plaintiff's request for
review. (Tr. 1-3). As such, the ALJ's decision stands as
the final decision of the Commissioner.
the Social Security Act, the Commissioner has established a
five-step process for determining whether a person is
disabled. 20 C.F.R. §§ 416.920, 404.1529.
“‘If a claimant fails to meet the criteria at any
step in the evaluation of disability, the process ends and
the claimant is determined to be not disabled.'”
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)
(quoting Eichelberger v. Barnhart, 390 F.3d 584,
590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial
gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the
claimant must have a severe impairment. 20 C.F.R.
§§ 416.920(c), 404.1520(c). The Social Security Act
defines “severe impairment” as “any
impairment or combination of impairments which significantly
limits [claimant's] physical or mental ability to do
basic work activities.” Id. “The
sequential evaluation process may be terminated at step two
only when the claimant's impairment or combination of
impairments would have no more than a minimal impact on [his
or] her ability to work.” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v.
Massanari, 250 F.3d 603, 605 (8th Cir. 2001) (citing
Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir.
the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the
Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d);
pt. 404, subpt. P, app. 1. If the claimant has one of, or the
medical equivalent of, these impairments, then the claimant
is per se disabled without consideration of the
claimant's age, education, or work history. See
the impairment must prevent the claimant from doing past
relevant work. 20 C.F.R. §§ 416.920(f),
404.1520(f). The burden rests with the claimant at this
fourth step to establish his or her Residual Functional
Capacity (RFC). See Steed v. Astrue, 524 F.3d 872,
874 n.3 (8th Cir. 2008) (“Through step four of this
analysis, the claimant has the burden of showing that she is
disabled.”); Eichelberger, 390 F.3d at 590-91;
Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir.
2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th
Cir. 2000). The ALJ will review a claimant's RFC and the
physical and mental demands of the work the claimant has done
in the past. 20 C.F.R. § 404.1520(f).
the severe impairment must prevent the claimant from doing
any other work. 20 C.F.R. §§ 416.920(g),
404.1520(g). At this fifth step of the sequential analysis,
the Commissioner has the burden of production to show
evidence of other jobs in the national economy that can be
performed by a person with the claimant's RFC. See
Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at
1069 n.5. If the claimant meets these standards, the ALJ will
find the claimant to be disabled. “The ultimate burden
of persuasion to prove disability, however, remains with the
claimant.” Id. See also Harris v. Barnhart,
356 F.3d 926, 931 n.2 (8th Cir. 2004) (citing 68 Fed. Reg.
51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart,
377 F.3d 801, 806 (8th Cir. 2004) (“The burden of
persuasion to prove disability and to demonstrate RFC remains
on the claimant, even when the burden of production shifts to
the Commissioner at step five.”); Charles v.
Barnhart, 375 F.3d 777, 782 n.5 (8th Cir. 2004)
(“[T]he burden of production shifts to the Commissioner
at step five to submit evidence of other work in the national
economy that [the claimant] could perform, given her
RFC.”). Even if a court finds that there is a
preponderance of the evidence against the ALJ's decision,
the decision must be affirmed if it is supported by
substantial evidence. See Clark v. Heckler, 733 F.2d
65, 68 (8th Cir. 1984). “Substantial evidence is less
than a preponderance but is enough that a reasonable mind
would find it adequate to support the Commissioner's
conclusion.” Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002). See also Cox v. Astrue,
495 F.3d 614, 617 (8th Cir. 2007). In Bland v.
Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth
Circuit Court of Appeals held:
The concept of substantial evidence is something less than
the weight of the evidence and it allows for the possibility
of drawing two inconsistent conclusions, thus it embodies a
zone of choice within which the Secretary may decide to grant
or deny benefits without being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th
Cir. 2006) (“[W]e may not reverse merely because
substantial evidence exists for the opposite
decision.”) (quoting Johnson v. Chater, 87
F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004)
(“[R]eview of the Commissioner's final decision is
not the job of the district court to re-weigh the evidence or
review the factual record de novo. See Cox, 495 F.3d
at 617; Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302
(8th Cir. 1993); Murphy v. Sullivan, 953 F.2d 383,
384 (8th Cir. 1992). Instead, the district court must simply
determine whether the quantity and quality of evidence is
enough so that a reasonable mind might find it adequate to
support the ALJ's conclusion. See Davis v.
Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000)). Weighing the evidence is a function of the ALJ, who
is the fact-finder. See Benskin v. Bowen, 830 F.2d
878, 882 (8th Cir. 1987). See also Onstead v.
Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding
that an ALJ's decision is conclusive upon a reviewing
court if it is supported by “substantial
evidence”). Thus, an administrative decision which is
supported by substantial evidence is not subject to reversal
merely because substantial evidence may also support an
opposite conclusion or because the reviewing court would have
decided differently. See Krogmeier, 294 F.3d at
1022. See also Eichelberger, 390 F.3d at 589;
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000)
(quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th
Cir. 1998)); Hutsell v. Massanari, 259 F.3d 707, 711
(8th Cir. 2001).
determine whether the Commissioner's final decision is
supported by substantial evidence, the court is required to
review the administrative record as a whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the
(3) The medical evidence given by the claimant's treating
(4) The subjective complaints of pain and description of the
claimant's physical activity and impairment;
(5) The corroboration by third parties of the claimant's
(6) The testimony of vocational experts based upon proper
hypothetical questions which fairly set forth the
claimant's physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec'y of Dep't of Health, Educ. &
Welfare, 623 F.2d 523, 527 (8th Cir. 1980); Cruse v.
Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
an ALJ's decision must comply “with the relevant
legal requirements.” Ford v. Astrue, 518 F.3d
979, 981 (8th Cir. 2008).
Social Security Act defines disability as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §
416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the
claimant has the burden of proving that the disability
results from a medically determinable physical or mental
impairment, direct medical evidence of the cause and effect
relationship between the impairment and the degree of
claimant's subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984). When evaluating evidence of pain, the
ALJ must consider:
(1) The claimant's daily activities;
(2) The subjective evidence of the duration, frequency, and
intensity of the claimant's pain;
(3) Any precipitating or aggravating factors;
(4) The dosage, effectiveness, and side effects of any
(5) The claimant's functional restrictions.
Baker v. Sec'y of Health & Human Servs., 955
F.2d. 552, 555 (8th Cir. 1992); Polaski, 739 F.2d at
absence of objective medical evidence is just one factor to
be considered in evaluating the plaintiff's credibility.
See id. The ALJ must also consider the
plaintiff's prior work record, observations by third
parties and treating and examining doctors, as well as the
plaintiff's appearance and demeanor at the hearing.
See Polaski, 739 F.2d at 1322; Cruse, 867
F.2d at 1186.
must make express credibility determinations and set forth
the inconsistencies in the record which cause him or her to
reject the plaintiff's complaints. See
Guilliams, 393 F.3d at 801; Masterson, 363 F.3d
at 738; Lewis v. Barnhart, 353 F.3d 642, 647 (8th
Cir. 2003); Hall v. Chater, 62 F.3d 220, 223 (8th
Cir. 1995). It is not enough that the record contains
inconsistencies; the ALJ must specifically demonstrate that
he or she considered all of the evidence. Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler
v. Sec'y of Health & Human Servs., 850 F.2d 425,
429 (8th Cir. 1988). The ALJ, however, “need not
explicitly discuss each Polaski factor.”
Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing
Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000)).
The ALJ need only acknowledge and consider those factors.
See id. Although credibility determinations are
primarily for the ALJ and not the court, the ALJ's
credibility assessment must be based on substantial evidence.
See Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir.
1988); Millbrook v. Heckler, 780 F.2d 1371, 1374
(8th Cir. 1985).
defined as what the claimant can do despite his or her
limitations, 20 C.F.R. § 404.1545(a)(1), and includes an
assessment of physical abilities and mental impairments. 20
C.F.R. § 404.1545(b)-(e). The Commissioner must show
that a claimant who cannot perform his or her past relevant
work can perform other work which exists in the national
economy. See Karlix v. Barnhart, 457 F.3d 742, 746
(8th Cir. 2006); Nevland, 204 F.3d at 857 (citing
McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir.
1982) (en banc)). The Commissioner must first prove that the
claimant retains the RFC to perform other kinds of work.
See Goff, 421 F.3d at 790; Nevland, 204
F.3d at 857. The Commissioner has to prove this by
substantial evidence. Warner v. Heckler, 722 F.2d
428, 431 (8th Cir. 1983). Second, once the plaintiff's
capabilities are established, the Commissioner has the burden
of demonstrating that there are jobs available in the
national economy that can realistically be performed by
someone with the plaintiff's qualifications and
capabilities. See Goff, 421 F.3d at 790;
Nevland, 204 F.3d at 857.
satisfy the Commissioner's burden, the testimony of a
vocational expert (VE) may be used. An ALJ posing a
hypothetical to a VE is not required to include all of a
plaintiff's limitations, but only those which the ALJ
finds credible. See Goff, 421 F.3d at 794
(“[T]he ALJ properly included only those limitations
supported by the record as a whole in the
hypothetical.”); Rautio, 862 F.2d at 180. Use
of the Medical-Vocational Guidelines is appropriate if the
ALJ discredits the plaintiff's subjective complaints of
pain for legally sufficient reasons. See Baker v.
Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006);
Carlock v. Sullivan, 902 F.2d 1341, 1343 (8th Cir.
1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th
issue before the court is whether substantial evidence
supports the Commissioner's final determination that
Plaintiff was not disabled. See Onstead, 962 F.2d at
804. Thus, even if there is substantial evidence that would
support a decision opposite to that of the Commissioner, the
court must affirm her decision as long as there is
substantial evidence in favor of the Commissioner's
position. See Cox, 495 F.3d at 617;
Krogmeier, 294 F.3d at 1022.
who was born on April 28, 1974, testified at the
administrative hearing that she lived with her husband and
ten-year-old son; that she last worked in January 2012; that
she had a high school equivalency diploma; that she could
read, write, and do simple math; that she could walk for
about 15 minutes before having to sit down; that she could
stand in one place for about 10 minutes; that she could sit
for about 25 minutes; that she dropped things a lot; that she
had headaches 2 to 3 times a week, which lasted from 1 to 3
hours; that she had ringing in her ears which sounded like a
train; that she had numbness from her left elbow down to the
tips of her fingers; that she had numbness in her right hand
and toes; that she had low back pain which went into her
buttocks on both sides; that she felt nauseous and had to
vomit at least once a day; that this vomiting had happened
for the 3 or 4 years prior to the hearing; that she had bad
days with her bipolar disorder 3 to 4 times a week; that she
had anxiety attacks at about 4:00 p.m. every day; that she
had manic days at least once a week; and that, when she had
manic attacks, she could not sleep for two to four days. (Tr.
34-36, 39-40, 43-44, 46-49, 51-52).
found that Plaintiff met the insured status requirements
since January 1, 2012, her alleged onset date; that she had
the severe impairments of degenerative disc disease,
borderline personality disorder, bipolar disorder, depression
and anxiety; and that she did not have an impairment or
combination of impairments which met or medically equaled a
listed impairment. The ALJ further found that Plaintiff had
the RFC to perform a range of sedentary work, with the
following limitations: Plaintiff would require a sit/stand
option allowing her to sit or stand alternatively, at will,
provided that she was not off task by ten percent of the work
period; she could occasionally push and pull bilaterally; she
could never climb ladders, ropes, or scaffolds; she could
occasionally climb ramps or stairs, stoop, crouch, kneel and
crawl; she could have only occasional rotation, flexion, and
extension of the neck; she could frequently reach, including
overhead reaching, bilaterally; she could frequently handle
and finger bilaterally; she had to avoid concentrated
exposure to extreme cold and heat; she had to avoid all
exposure to use of hazardous machinery and unprotected
heights; she was limited to simple, routine, and repetitive
tasks, with no strict production quotas; she could only
occasionally interact with the general public; and she could
be around co-workers throughout the day, but with only
occasional interaction with them. The ALJ concluded that
Plaintiff could not perform her past relevant work; that,
based on the testimony of a VE, there was work in the
national economy which Plaintiff could perform; and that,
therefore, she was not disabled within the meaning of the
argues that the ALJ's decision is not based on
substantial evidence because: (1) the ALJ failed to give
controlling weight to the opinion of Nitin Kukkar, M.D.; (2)
the ALJ failed to find that Plaintiff's bipolar disorder
equaled the criteria for Listing 12.04; and (3) the ALJ's
credibility determination was “patently
erroneous.” For the following reasons, the court finds
that Plaintiff's arguments are without merit and that the
ALJ's determination that Plaintiff is not disabled is
based on substantial evidence and is consistent with the
Regulations and case law.
court will first consider the ALJ's credibility
determination, as the ALJ's evaluation of Plaintiff s
credibility was essential to the ALJ's determination of
other issues. See Wildman v. Astrue, 596 F.3d 959,
969 (8th Cir. 2010) (“[The plaintiff] fails to
recognize that the ALJ's determination regarding her RFC
was influenced by his determination that her allegations were
not credible.”) (citing Tellez v. Barnhart 403
F.3d 953, 957 (8th Cir. 2005)); 20 C.F.R. §§
404.1545, 416.945 (2010). As set forth more fully above, the
ALJ's credibility findings should be affirmed if they are
supported by substantial evidence on the record as a ...