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Streitenberger v. Berryhill

United States District Court, E.D. Missouri, Northern Division

February 21, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.



         This cause is on appeal from an adverse ruling of the Social Security Administration. This suit involves an Application for Disability Insurance Benefits. The matter is fully briefed, and for the reasons discussed below, the Commissioner's decision is affirmed. All matters are pending before the undersigned United States Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c).

         I. Procedural History

         On May 17, 2012, Plaintiff Judy Streitenberger ("Plaintiff") filed an Application for Disability Insurance Benefits ("DIB") under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 134-40).[2] Plaintiff claimed that her disability began on January 28, 2012, as a result of back problems requiring lumbar fusion surgery. On initial consideration, the Social Security Administration denied Plaintiff's claims for benefits. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on March 10, 2014. (Tr. 27-68) Plaintiff testified and was represented by counsel. Vocational Expert Gary Weimholt also testified at the hearing. (Tr. 57-64, 101-03) Thereafter, on April 4, 2014, the ALJ issued a decision denying Plaintiff's claims for benefits. (Tr. 7-20) After considering the representative's brief and additional medical records, the Appeals Council found no basis for changing the ALJ's decision and denied Plaintiff's request for review on April 9, 2015. (Tr. 1-6, 290-94, 694-96)

         Plaintiff filed the instant action on May 18, 2015. Plaintiff has exhausted her administrative remedies and the matter is properly before this Court. Plaintiff has been represented by counsel throughout all relevant proceedings.

         In her initial brief to this Court, Plaintiff raises one issue - the ALJ erred in according little weight to her treating specialist, Dr. Jeffrey Parker. The Commissioner filed a detailed brief in opposition contending that the ALJ's decision is based upon substantial evidence. In her reply brief, Plaintiff argues that this case is analogous to Papesh v. Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015) (“Even if the [treating physician's] opinion is not entitled to controlling weight, it should not ordinarily be disregarded and is entitled to substantial weight.”).

         As explained below, the Court has considered the entire record in this matter. Because the decision of the Commissioner is supported by substantial evidence, it will be affirmed. The undersigned will first summarize the decision of the ALJ and the administrative record. Next, the undersigned will address the issue Plaintiff raises in this Court.

         II. Decision of the ALJ

         On April 4, 2014, the ALJ issued an adverse decision denying Plaintiff's request for DIB benefits. The ALJ determined that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2016. (Tr. 12) The ALJ acknowledged that the administrative framework required him to follow a five-step, sequential process in evaluating Plaintiff's claim. (Tr. 11-12) At step one, the ALJ concluded that Plaintiff had not engaged in any substantial gainful activity since January 28, 2012, the alleged onset date. (Tr. 12) At step two, the ALJ found Plaintiff had the following severe impairments during the relevant time period: degenerative disc disease of the lumbar spine requiring anterior lumbar fusion surgery, and a right wrist fracture requiring internal fixation surgery. (Tr. 12-14) The ALJ further concluded, however, that none of Plaintiff's impairments, either singly or in combination, significantly limited her ability to perform basic work-related activities for 12 consecutive months; therefore, Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (Tr. 14)[3]

         In making her Residual Functional Capacity ("RFC") determination, the ALJ found that Plaintiff has the capacity to perform less than a full range of light work to the extent the following nonexertional capabilities and limitations are included: no twisting, stooping, or climbing of ladders; occasional crouching and climbing stairs; avoid concentrated exposure to fumes, odors, dusts, gasses, soldering fluxes, solvents, cleaners, and chemicals; avoid even moderate exposure to high humidity and vibration; avoid all exposure to temperature extremes; limited to frequent reaching, handling, and fingering with her right dominant upper extremity; and allowed a sit/stand option permitting for a change in position every thirty to sixty minutes for a few minutes while remaining at the workstation. The ALJ explained that the full range of light work involves lifting 20 pounds occasionally; lifting and/or carrying 10 pounds frequently; standing and/or walking and sitting 6 hours out of an eight-hour workday; and pushing and pulling at the same weight as lifting and carrying, but only occasionally. (Tr. 14)

         The ALJ made an adverse credibility finding that no doubt influenced her RFC assessment. In particular, the ALJ found Plaintiff's “allegations of worsening pain and limitation of motion [in her lumbar spine and right wrist] not entirely credible. Instead, considering the evidence outlined above, including Plaintiff's increasing range of motion, normal gait, and lack of longitudinal weakness or sensory deficit, as well as the other factors discussed in this opinion, I find [Plaintiff] is capable of a range of light work....” (Tr. 16) The ALJ also found that Plaintiff's inconsistent hearing testimony, statements made during treatment, and the exertional activities in her function reports, as well as the reason she stopped working, diminished the credibility of her allegations overall. (Tr. 16-17)

         The ALJ summarized her conclusions as follows:

As to the other factors considered, [Plaintiff] made inconsistent statements that diminish the credibility of her allegations overall. At the hearing, she testified that she is limited to standing for fifteen minutes and walking no more than two blocks due to her pain. However, [Plaintiff] also testified that she is able to go grocery shopping and walk through the store for forty minutes at a time while pushing a cart. In May 2013, she admitted to her doctor that she was walking a mile every day for exercise.... These inconsistencies lead me to conclude that [Plaintiff's] allegations may not be entirely credible.
[Plaintiff] did not stop working due to her medical conditions. In fact, she admitted that she was laid off for business related purposes. The fact that [Plaintiff] did not stop working due to her medical conditions leads me to wonder whether [Plaintiff] would have attempted to keep working but for her lay off. This is simply one factor out of many that leads one to question the reasons for [Plaintiff's] continued unemployment.
[Plaintiff] reported significant limitations in exertional activities in her Function Reports.... However, her admissions at the hearing lead me to believe she is not as limited as alleged in the Function Reports.... For instance, [Plaintiff] testified that her daily energy level is good. She testified that she passes time during a typical day helping her mom and giving her insulin. She cooks things such as chicken and casseroles. She does laundry. She goes shopping at the grocery store. She pushes a cart while shopping. She carries her groceries. She is able to walk through the store for forty minutes. She is able to sit comfortably for 45 minutes at one time. Moreover, her admissions to her doctors leads one to believe she is capable of moderate daily exercise, walking up to a mile daily, and doing daily strengthening exercises.... The fact that [Plaintiff] can sit, stand, walk, lift, and carry in order to perform this range of daily activities suggests that she is not as limited as alleged....

(Tr. 16-17) (internal citations omitted).

         Likewise, the ALJ found that Plaintiff's “symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone.... [The ALJ found] that [Plaintiff's] medically determinable impairments could reasonably be expected to cause some symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible....” (Tr. 15)

         The ALJ summarized her conclusions regarding the weight given to the medical source statements of Plaintiff's treating orthopedist, Dr. Jeffrey Parker, as follows:

In his first statement, dated November 19, 2012, Dr. Parker limited [Plaintiff] to a substantially less than sedentary range of work during the fusion recovery process. ... In his second statement, dated February 14, 2014, [4] Dr. Parker again limited [Plaintiff] to less than a full range of sedentary work. I gave little weight to both opinions, as the treatment notes do not entirely support the restrictions Dr. Parker described in the medical source statement.... For instance, in October 2012, Dr. Parker noted that [Plaintiff] was doing well with relatively few complaints.... He remarked that [Plaintiff] had developed a good range of motion post-surgery and had normal reflexes, sensation, and improved pain overall.... Treatment notes from May 2013 showed that [Plaintiff] walked with a normal gait. She did not have any reflex or sensory deficits.... Straight leg raise testing was negative.... She did not appear to have signs of weakness in her lower extremities.... Although [Plaintiff] complained of increased pain in November 2013, she reported that her pain medication was helping in January 2014 and physical examinations did not show any substantial signs of deterioration from prior visits.... Because these opinions are not entirely supported by treatment notes or objective findings, one cannot help but wonder whether Dr. Parker's opinion was influenced by other factors. For instance, the possibility always exists that a doctor may express an opinion in an effort to assist a patient with whom he sympathizes for one reason or another. Another reality, which should be mentioned is that patients can be quite insistent and demanding in seeking supportive notes or reports from their physicians, who might satisfy their patients requests and avoid unnecessary doctor/patient tension. While it is difficult to confirm these motives, they are more likely in situations where the opinion departs substantially from the rest of the evidence of record, as in the current case. With this in mind, I have given little weight to the multiple opinions of Dr. Parker.
I also considered the narrative opinion by Dr. Parker that [Plaintiff] may not be employable due to her wrist.... Dr. Parker was not treating [Plaintiff] in regards to her wrist. Moreover, treatment notes in regards to her wrist reveal that [Plaintiff] improved as the six-month mark after her surgery.... Therefore, Dr. Parker's opinion is not persuasive and has been given little weight.

(Tr. 17-18) (internal citations omitted)[5]

         The ALJ found that Plaintiff is unable to perform any past relevant work. (Tr. 19) Based on testimony from the V.E., the ALJ further concluded that, considering Plaintiff's age, education, work experience, and RFC, there were jobs existing in significant numbers in the national economy she could perform, including a cashier and an information clerk. (Tr. 19-20)

         III. Evidence Before the ALJ

         The administrative record in this matter includes voluminous medical records. Although the Court has carefully considered all of the evidence in the administrative record in determining whether the Commissioner's adverse decision is supported by substantial evidence, only the records most relevant to the ALJ's decision and the issues raised by Plaintiff on this appeal are specifically discussed. The following is a summary of pertinent portions of the record.

         A. The Hearing Before the ALJ

         The ALJ conducted a hearing on March 10, 2014. Plaintiff was present and represented by an attorney. Also present was a Vocational Expert Gary Weimholt (“VE”).

         1. Plaintiff's Testimony

         Plaintiff testified primarily in response to questions posed by her attorney, with additional questions interjected by the ALJ. Plaintiff testified that she has not worked since she became disabled on January 28, 2012. (Tr. 32) At the time of her hearing, Plaintiff was fifty-two years old and lived in a trailer with her mother to help take care of her. Plaintiff testified that she graduated from high school. (Tr. 33, 52)

         Plaintiff testified that her work history included assembly line jobs requiring her to lift between forty to fifty pounds, sixty times a day, five days a week. (Tr. 34, 36) While working as a house cleaner, she frequently lifted less than ten pounds and mopped and vacuumed floors. (Tr. 37) As a brake cable worker, Plaintiff lifted fifty pounds every hour. (Tr. 38)

         Plaintiff testified that her lower back hurts when she bends over, and she has pain every day. (Tr. 38-39) Plaintiff reported that her energy level is good. After Plaintiff broke her right wrist, Dr. Todd Oliver performed surgical repair on April 28, 2013. Plaintiff testified she cannot bend her right hand backwards on the wrist, and she can only use her hand for fifteen minutes. (Tr. 42) Plaintiff explained that peeling potatoes and lifting five pounds are hard to do with her right hand, and she has problems picking up small items. (Tr. 43-44) Plaintiff testified that she also had plantar facilities and neuromas in 2010. (Tr. 54)

         Plaintiff testified that she spends two hours a day lying down to alleviate her back pain. (Tr. 45) Plaintiff's middle back pain prevents her from sleeping through the night. (Tr. 46) During the day, Plaintiff helps her mother with her medications, cooks chicken and casseroles, does the laundry, and goes grocery shopping with a cart for forty minutes. (Tr. 46-47) Plaintiff testified that she can sit for forty-five minutes before she needs to stand or lie down, and she can stand for fifteen minutes and walk for two blocks before sitting down. (Tr. 48) Plaintiff testified that she is limited to lifting five pounds with her right hand and seven pounds with her left hand, and she lifts weights to strengthen her right hand. (Tr. 48) Plaintiff testified that she has problems standing and walking. (Tr. 55)

         Dr. Jeffrey Parker started treating Plaintiff in 2012 and performed back surgery in June 2012. (Tr. 49) Plaintiff testified that the back surgery did not help her but exercise has helped. (Tr. 50, 55) Although Plaintiff has been advised to quit smoking to help her back heal, she is still smoking a pack of cigarettes each day. (Tr. 56)

         2.Testimony of Vocational Expert Gary Weimholt

         Vocational Expert Gary Weimholt (“VE”) testified at the hearing. The VE identified two jobs, a production assembler and a home care attendant, he considered to be Plaintiff's past relevant work. (Tr. 57)

         The ALJ asked the VE to assume someone similar to Plaintiff in age, education, and the same past work experience with the ability to perform work at the light range and capable of

lifting up to 20 pounds; frequent lifting, carrying up to 10 pounds; standing, walking six hours out of an eight-hour workday; and sitting six hours out of an eight-hour workday; but no twisting, stooping or climbing ladders; occasional crouching or climbing stairs; pushing and pulling at the same weights but only occasional; avoid concentrated exposure to fumes, odors, dust, gases, soldering fluxes, solvents, cleaners and chemicals.
And the person should avoid moderate exposure to high humidity and vibration and avoid all exposure to temperature extremes. And the person is limited to frequent reaching, handling and fingering with the right dominant upper extremity. With just those limitations, any past work available?

(Tr. 59) The VE opined that such hypothetical individual could not perform Plaintiff's past relevant work. (Tr. 60) Even when the ALJ then specifically added no bending, the VE opined that the individual could not work as a small part assembler because of the constant reaching and handling required but such individual could work as a cashier or an information clerk. (Tr. 61-62)

         Plaintiff's counsel posed a hypothetical with an individual of the same age, education, and work experience as Plaintiff and to assume that

they can lift ten pounds occasionally, less than ten pounds frequently, that they can stand and/or walk less than two hours during an eight-hour day; that they can sit less than two hours during an eight-hour day; that they can sit for 30 minutes before needing to change position; they can stand for 30 minutes before needing to stay in position; they must be able to walk around four times a day for at least 15 minutes; they do need the opportunity to shift at will from sitting to standing and/or walking during the day.
I want you to assume that the hypothetical individual will at least twice each day need the opportunity to lie down at unpredicted - unpredictable intervals during an eight-hour work shift. They many never twist; never bend or stoop; occasionally crouch; occasionally climb stairs; never climb ladders. Reaching, handling, fingering and feeling are limited to constantly; pushing and pulling limited to occasionally. They should avoid all exposure to extreme cold and heat. They should avoid moderate exposure to high humidity. They should avoid concentrated exposure to fumes, odors, dusts and gases, soldering fluxes, solvents and cleaners and chemicals. They can be around perfume.
The hypothetical individual would be absent about - well, more than four days per month, more than four days per month. And the hypothetical individual is likely to be off task 25 percent or more of the time. In addition, the hypothetical individual will need to take unscheduled breaks three to four times a day of up to 15 minutes. Would there be any jobs in the national economy such an individual could perform?

(Tr. 63-64) The VE opined that there would not be any jobs in the national economy such individual could perform because of the number of hours worked, the excessive absenteeism, and the ...

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