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Davis v. Colvin

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

September 30, 2016

BARBARA DAVIS o/b/o DAVID DAVIS, deceased, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          ROBERT E. LARSEN United States Magistrate Judge

         Plaintiff David Davis sought 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”). I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff was not disabled. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.

         I. BACKGROUND

         On June 20, 2012, plaintiff applied for disability benefits alleging that he had been disabled since September 1, 2009. Plaintiff's disability stemmed from shortness of breath, congestive heart failure, coronary artery disease, chronic obstructive pulmonary disease (“COPD”), hypertension, high cholesterol, and dizziness. Plaintiff's application was denied on July 23, 2012. On December 18, 2013, a hearing was held before an Administrative Law Judge. On February 10, 2014, the ALJ found that plaintiff was not under a “disability” as defined in the Act. On June 24, 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 establishes that plaintiff earned the following income from 1976 through 2013, shown in both actual and indexed figures:


Actual Earnings

Indexed Earnings


$ 404.80

$ 1, 772.74



2, 280.69


1, 392.00

5, 328.18


1, 693.59

5, 961.11


3, 278.66

10, 586.67


6, 907.98

20, 265.61


6, 913.81

19, 224.37


7, 374.31

19, 552.32


8, 440.61

21, 137.00


8, 428.51

20, 244.18


5, 461.43

12, 739.52


8, 632.44

18, 929.13


7, 721.16

16, 136.16


8, 279.00

16, 643.01


6, 723.00

12, 918.31


6, 170.00

11, 429.78


6, 271.88

11, 049.21


8, 205.78

14, 332.91


10, 947.54

18, 622.10


11, 067.07

18, 099.91


9, 859.12

15, 372.54


13, 293.41

19, 584.58


13, 080.92

18, 313.05


12, 067.70

16, 002.75


12, 905.74

16, 217.25


14, 538.13

17, 842.83


15, 198.89

18, 648.57


13, 228.89

15, 691.19


13, 010.28

14, 746.37





2, 244.00

2, 345.84


3, 970.90

3, 970.90


2, 194.00

2, 194.00


2, 452.00

2, 452.00













(Tr. at 199-200, 213-214, 234-235).

         Function Report

         In a Function Report dated July 13, 2012, plaintiff indicated that he spends his day watching television, feeding his animals, doing yard work, driving his mother or others to appointments, doing dishes, vacuuming, doing laundry, and watching movies (Tr. at 266). He watches his grandchildren, which includes “all aspects of care” (Tr. at 267). He feeds, waters, cleans up after, and bathes his animals (Tr. at 267). He occasionally has problems sleeping due to breathing problems and pain in his hip and back (Tr. at 267). He has no problems with personal care (Tr. at 267). He prepares his own meals, including “full meals, complete meals, many courses/dishes” (Tr. at 268). He does this daily, and his ability to prepare meals has not been affected by his condition (Tr. at 268). He is able to do some mowing, weed eating, any household chores, dishes, laundry, sweeping (Tr. at 268). He does these things regularly and without assistance (Tr. at 268). Plaintiff is able to go out alone, and when he does he either walks, drives or rides in a car (Tr. at 269). He shops in stores weekly (Tr. at 269). His hobbies including hunting, fishing, working on vehicles, watching television and watching movies (Tr. at 270). He cannot walk as far when he hunts or goes on fishing trips because of trouble breathing and pain (Tr. at 270). He goes to visit friends and relatives, goes to cook-outs and dinners, goes to help friends and family with things (Tr. at 270). When asked to list the places he goes on a regular basis, plaintiff wrote, “stores, family members' homes/friends' homes, children/grandchildren's events (ex., b-day parties, ball games, etc.)” (Tr. at 270). When asked how often he does these things and how much he takes part in the activities, he wrote, “Daily/weekly, as much as possible or needed” (Tr. at 270).

         Plaintiff's impairments affect his ability to lift, squat, bend, stand, walk, sit, kneel, hear, climb stairs, see, and use his hands (Tr. at 271). His impairments do not affect his ability to reach, remember, complete tasks, concentrate, understand, follow instructions, or get along with others (Tr. at 271). When plaintiff goes hunting, he needs to take frequent breaks of 10 to 15 minutes or more (Tr. at 271).


         During the December 18, 2013, hearing, plaintiff testified; and Denise Weaver, a vocational expert, testified at the request of the ALJ.

         1. Plaintiff's testimony.

         Plaintiff drove 86 miles from his home to the administrative hearing (Tr. at 43). It took about an hour and a half (Tr. at 43). If he starts to have a dizzy spell while he is driving, he pulls over (Tr. at 44). He had not had a dizzy spell in the past couple days, but a few days before the hearing he had six of them in one day (Tr. at 44). When he has a dizzy spell, he sits down and lets it pass (Tr. at 44).

         Plaintiff quit school in 12th grade and never got a GED (Tr. at 79). He lives on 15 acres with his mother (Tr. at 54). His mother owns the property and has a residence there, and she bought a trailer and put it on her land about 150 yards from her house, which is where plaintiff lives with his second wife and his daughter from his first marriage (Tr. at 55). Plaintiff's wife is trying to get disability (Tr. at 55). His daughter is 16 (Tr. at 55). She has a smart phone, and her mother pays for it (Tr. at 56). Plaintiff's daughter does not participate in sports, singing, band, or clubs, so plaintiff does not go watch her do anything at school (Tr. at 60). He does go to parent-teacher conferences (Tr. at 60).

         Plaintiff worked for Professional Management Group doing ground maintenance, swimming pool maintenance, and minor maintenance work at a condominium complex for nine and a half years (Tr. at 75). He stopped doing that job after he was laid off (Tr. at 76).

         Plaintiff started his own business in 2009 (his alleged onset date is September 1, 2009) (Tr. at 45). His health started going downhill and the economy went downhill and he had to let his employees go (Tr. at 45). He could not do the work by himself (Tr. at 45). Plaintiff's past work was as a laborer, which is pretty heavy work (Tr. at 69). He stopped working in 2009 because there was no work (Tr. at 70). “Last job I had was for a landscaping company. And when he hired me, he goes he just needed me to get him over the spring hump. And, I worked for him, and one morning I was heading [to] work, and [he] called and said that he was done with me. And that's when I started my own landscaping business and done it for about three years, and, but it was just, the more work I done, the worse I felt.” (Tr. at 70). Plaintiff's last job working for someone else was in 2008, and he lost that job because he was no longer needed, not because of his impairments (Tr. at 71). He started his own business in 2009 (Tr. at 71). At first he was making at least $1, 000 a month, but the economy was bad and he was only getting “itty-bitty” jobs (Tr. at 72). In about 2011, he had to stop doing those little jobs because of his back and hip -- the bouncing of the riding lawn mower bothered him too much (Tr. at 72-73). While plaintiff had this business, his wife used the gas powered weed whacker except on steep hills -- plaintiff did those (Tr. at 73). His wife did the trimming (Tr. at 73).

         Plaintiff last reported earnings in 2009, but he worked in 2010 and 2011 mowing yards, he just didn't make enough money to report it (Tr. at 71).

         Plaintiff has not been to the doctor a lot in the last several years because he could not afford it (Tr. at 46). He recently got Medicaid coverage and is now going to the doctor (Tr. at 46). Plaintiff was having chest pain in 2010 and at the time was smoking two packs of cigarettes per day (Tr. at 46). He is still smoking (Tr. at 46). Plaintiff said he could afford cigarettes because his mother gave him money (Tr. at 47). Plaintiff went to the free clinic in 2010 and the doctor sent him to have a stress test (Tr. at 47). That is when they discovered his first bad heart valve (Tr. at 47).

         Everything is pretty healthy with his heart except the bleeders (Tr. at 61). Plaintiff does get burning and numbness in his left arm (Tr. at 61). Plaintiff had chest pains and lightheadedness and dizzy spells, and at the time of the hearing he was wearing a heart monitor that would record what is going on in his heart when that happens (Tr. at 61). The monitor is always monitoring but it only records when he activates it (Tr. at 64). Plaintiff has only been to Dr. Krishna's office twice (Tr. at 61-62). He is the one who ordered the tests and gave plaintiff the heart monitor (Tr. at 62). One time plaintiff activated it four times in one day (Tr. at 65). Since he has had the monitor (he got it about a week earlier), he had activated it eight or nine times (Tr. at 65). Plaintiff had heart pain as far back as three years ago but did not see a doctor about that (Tr. at 65). He has never been to the emergency room for his heart, has not had a heart ...

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