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Shelton v. Berryhill

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

March 2, 2017

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



         Tracy Earl Shelton (“Plaintiff”) seeks review of the Social Security Administration's (“SSA”) decision denying his application for a period of disability and Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and his application for Social Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. The Court has reviewed the parties' briefs and the administrative record, including the hearing transcript and the medical evidence. Because the Court finds substantial evidence supports the decision to deny benefits, the Court affirms the denial of Plaintiff's applications.[2]

         I. Background and Procedural History

         In October 2011 Plaintiff applied for DIB and SSI. (Tr. 151-57 and see Tr. 14, respectively.) Plaintiff alleged he was disabled as of October 8, 2011, [3] due to hearing loss, sleep apnea, depression, right knee surgery, carpal tunnel surgery in both wrists, high blood pressure, “getting angry with people to[o] easily, ” loss of balance, “thyroid[, and] a goiter.” (Tr. 252). The SSA denied Plaintiff's claims (Tr. 65-69), and Plaintiff filed a timely request for a hearing before an administrative law judge (“ALJ”) (Tr. 72-73).

         The SSA granted Plaintiff's request for review, and an ALJ conducted a hearing in November 2013. (See, e.g., Tr. 74-96.) Plaintiff, who was represented by an attorney, testified that he was born in 1972, had graduated from high school, was married and lived at home with his wife and ten-year old son, and had last worked at a grocery store unloading trucks and stocking shelves on October 8, 2011. (Tr. 36-39.) His prior employment positions included working as a produce clerk at a grocery store, on an air conditioning unit assembly line, and as a machine operator molding wood for picture frames (Tr. 39-40.) Other than receiving two lump-sum worker's compensation payments due to a right knee injury and bilateral carpal tunnel syndrome, Plaintiff's only income was food stamps and energy assistance. (Tr. 37, 38.)

         The medications Plaintiff takes are “mainly for pain, the high blood pressure[, ] . . . the thyroid, [the] goiter, the depression, the high cholesterol, and [the diabetes].” (Tr. 42.) Plaintiff mentioned he had arthroscopic surgery on his right knee, carpal tunnel release surgery on both wrists in 2011, and, in 2005, a right ear cochlear implant; and he had complete deafness in his left ear. (Tr. 42-46.) Plaintiff complained of weakness and pain in his right knee and both wrists, hearing problems resulting from background noise, and throbbing pain and tenderness at the site of the implant. (Tr. 41-44, 47.) In regard to his right knee, Plaintiff described the pain as constant, with it “get[ting] worse when [he goes] out walking or tr[ies] to be a little physical, ” and when it remains bent. (Tr. 43, 48, 49-50, 55.) Plaintiff testified he “can't walk very far at all comfortably” and can only stand for “maybe 10 minutes” without changing positions. (Tr. 55.) On a scale of one to ten, Plaintiff characterized his “average daily” right knee pain as “get[ting] up as high as a ten sometimes.” (Tr. 54.) To alleviate his knee pain, Plaintiff uses a “heating pad and l[ies] down, ” and takes two pain medications: Naproxen and Tramadol. (Tr. 43, 52.) Plaintiff stated, after having fallen twice, he uses a cane, which was not prescribed, “[p]retty often, mainly every time [he] go[es] out somewhere.” (Tr. 43.) With respect to his wrists, Plaintiff testified that, after the bilateral carpal tunnel release surgeries, he “tend[s] more now to hav[e] like a pain . . . in [his] wrists.” (Tr. 44.) Describing that daily pain, Plaintiff characterized it as a two on a scale of one to ten. (Tr. 53.) Plaintiff described his daily routine as driving his son to school in the morning, returning home and going to bed until noon, and then sitting in front of the computer, taking breaks because his “leg . . . bother[s him] if [he] sit[s] too long [and] bothers [him] if [he] stand[s] too long.” (Tr. 50.)

         A vocational expert (“VE”) also testified at the administrative hearing. (Tr. 56-59.) The ALJ asked the VE to consider a hypothetical individual:

who can perform a range of light work, lifting up to 20 pounds occasionally, lifting or carrying 10 pounds frequently, standing or walking for six hours and sitting for up to six hours per eight hour day with normal breaks, occasionally climbing ramps or stairs, never climbing ladders, ropes or scaffolds, occasional stooping but no kneeling, crouching or crawling, unable to tolerate exposure to noise above the moderate level [and] . . ., limited to occupations that do not require frequent verbal or telephone communication with all instructions delivered either by demonstration or face to face.

(Tr. 57.) The VE testified that all of Plaintiff's past work “would be eliminated, ” and there were other jobs in the regional or national economy that a person of Plaintiff's age, education and work experience could perform under the terms of the hypothetical: price marker, collator operator, and garment sorter. (Tr. 57-58.) The VE affirmed that her testimony was consistent with the Dictionary of Occupational Titles (“DOT”), except as to the instruction limitation which she analyzed based on her professional opinion. (Tr. 59.) The ALJ also proposed two more hypotheticals, the second adding to the first hypothetical a requirement that the person elevate a leg above waist high “outside of the normal rest and lunch periods” and the third adding to the first hypothetical a requirement that “the person can sit and stand for 20 minutes and then has to change positions to the other exertional position before returning, again at 20 minute intervals.” (Tr. 58-59.) In response to each of the second and third hypotheticals, the VE testified such limitations would eliminate all three of the jobs she had reported in response to the first hypothetical, as well as “all other work.” (Id.) The VE stated her responses to the second and third hypotheticals were based on her professional opinion as to the elevating of feet and extra breaks and alternating positions, because those aspects of work are not included in the DOT. (Tr. 59.)

         In denying Plaintiff's applications, the ALJ applied the five-step evaluation process set forth in 20 C.F.R. §§ 404.1520 and 416.920;[4] found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2016; and concluded Plaintiff had not engaged in substantial gainful activity during the period from his alleged onset date of October 8, 2011, through the date of the decision, December 12, 2013. (Tr. 14-24). The ALJ also determined Plaintiff had the severe impairments of degenerative joint disease of the right knee, obesity, and hearing loss status post-2005 cochlear implant that significantly limit Plaintiff's ability to perform work activities. (Tr. 16.) Additionally, the ALJ found Plaintiff had the following non-severe impairments: coronary artery disease, carpal tunnel syndrome in his upper extremities, restless leg syndrome, diabetes, and depression. (Tr. 16-18.) Plaintiff did not, the ALJ further found, have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 19.)

         After reviewing Plaintiff's testimony and medical records, the ALJ determined that Plaintiff's “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; [but Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” (Tr. 21.) The ALJ concluded that Plaintiff had the Residual Functional Capacity (“RFC”)[5] to “perform less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b)” based on findings Plaintiff:

can occasionally lift 20 pounds, frequently lift/carry 10 pounds, stand/walk for 6 hours in an 8-hour workday, and sit for 6 hours in an 8-hour workday with normal breaks[;] . . . can occasionally climb ramps or stairs, but can never climb ladders, ropes, or scaffolds[; and] . . . can occasionally stoop, but can never kneel, crouch, or crawl.

(Tr. 19.) Such light work, the ALJ found, was further limited to work that did not “require exposure to noise levels above the moderate level, ” did not “require frequent verbal or telephone communication, ” and delivered instructions “by demonstration or face to face.” (Id.) The ALJ decided that Plaintiff was unable to perform any past relevant work, but there were other jobs in significant numbers in the national economy that Plaintiff could perform, in view of his age, education, work experience, and RFC, including: “light exertional level, unskilled jobs, ” such as price marker, collator operator, and garment sorter. (Tr. 23.)

         The ALJ held that Plaintiff was not “under a disability, as defined in the Social Security Act from October 8, 2011, through the date of [the ALJ's] decision (20 CFR 404.1520(g) and 416.920(g)), ” and was not disabled for purposes of either DIB or SSI. (Tr. 24.) Plaintiff filed a request for review of the ALJ's decision with the SSA Appeals Council, which denied review. (Tr. 7-9, 1-5, respectively). Plaintiff exhausted all administrative remedies, and the ALJ's decision stands as the SSA's final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000). The SSA's final decision after a hearing is subject to judicial review. 42 U.S.C. § 405(g) (for DIB); 42 U.S.C. § 1382(c)(3) (for SSI).

         II. Standard of Review

         A court must affirm the SSA's final decision if it is supported by substantial evidence on the record as a whole. Buford v. Colvin, 824 F.3d 793, 795 (8th Cir. 2016); 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it adequate to support the ALJ's determination.” Buford, 824 F.3d at 795 (internal quotation marks omitted) (quoting Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)). In deciding whether substantial evidence supports the Commissioner's final decision, a court must review the administrative record as a whole and consider the ALJ's credibility findings, vocational factors (education, background, work history, and age), the medical evidence from treating and consulting physicians, subjective complaints regarding exertional and non-exertional activities and impairments, any third-party corroboration of the impairments, and, when required, vocational expert testimony that is based on a proper hypothetical question setting forth the impairments. Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992). A court reviewing the Commissioner's final decision considers evidence that both supports and detracts from the decision. Buford, 824 F.3d at 795. However, a court “do[es] not reweigh the evidence presented to the ALJ and [it] defer[s] to the ALJ”s determinations regarding the credibility of testimony, as long as those determinations are supported by good reasons and substantial evidence.” Renstrom v. Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012) (internal quotation marks omitted) (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)).

         The Eighth Circuit has repeatedly held that a court should “defer heavily to the findings and conclusions” of the SSA. Wright v. Colvin, 789 F.3d 847, 852 (8th Cir. 2015) (internal quotation marks omitted) (quoting Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010)). “If, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (internal quotation marks omitted) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).

         III. Discussion

         Plaintiff argues that substantial evidence does not support the ALJ's decision because the ALJ erred in: (1) finding Plaintiff's bi-lateral carpal tunnel syndrome and diabetes were not severe impairments, and (2) failing to develop the record regarding Plaintiff's upper extremities and knee pain. (ECF No. 16.) The Commissioner counters that: (1) Plaintiff failed to demonstrate that his bi-lateral carpal tunnel syndrome and his diabetes were severe; and (2) the ALJ did not need to further develop the record because Plaintiff failed to show the ALJ was incapable of making a decision regarding Plaintiff's bi-lateral carpal tunnel syndrome and right knee pain based on the information in the record.

         A. Severity of Impairments - Bilateral Carpal Tunnel Syndrome and Diabetes

         Plaintiff claims that competent and substantial evidence does not support the ALJ's conclusion that Plaintiff's bilateral carpal tunnel syndrome and diabetes are non-severe impairments. As to the former, Plaintiff contends the ALJ improperly relied on a February 2013 medical examination during which Plaintiff reported the issues with his hands were resolved and a related nerve conduction test that revealed “normal” handgrip, rather than on Plaintiff's testimony at the hearing that he continued to have daily hand pain.[6] With respect to the diabetes, Plaintiff argues the ALJ erred in classifying that condition as nonsevere because, Plaintiff asserts, Plaintiff credibly testified at the hearing that he stays “constantly drained of energy” and “takes naps during the day.”[7] Defendant counters that the ALJ's severity analysis of these impairments is supported by the record showing improvement with treatment and the absence of a medical opinion that these impairments imposed greater limitations than those included in the ALJ's RFC finding. Defendant also urges Plaintiff is essentially asking the Court to reweigh the evidence and make a different finding, which the Court may not do.

         At step two of the evaluation process, an ALJ must determine if a claimant suffers from a severe impairment. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (discussing disability and SSI benefits); see also 20 C.F.R. § 404.1520(a)(4)(ii) (disability benefits); § 416.920(a)(4)(ii) (SSI benefits). To demonstrate that an impairment is severe, a claimant must show that he or she has (1) a medically determinable physical or mental impairment, or combination of impairments, which (2) “significantly limits [his or her] physical or mental ability to do basic work activities, ”[8] without regard to age, education, or work experience. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 404.1521(a), 416.920(a)(4)(ii), 416.920(c), 416.921(a). An impairment “is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1521(a), § 416.921(a). Put another way, an impairment is not severe if it “amounts only to a slight abnormality” that “would have no more than a minimal effect” on the claimant's ability to work. Kirby, 500 F.3d at 707 (citing Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)). Although a claimant has “the burden of showing a severe impairment that significantly limited [his or her] physical or mental ability to perform basic work activities[, ] . . . the burden of a claimant at this stage of the analysis is not great.” Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001)). See also Kirby, 500 F.3d at 708 (“Severity is not an onerous requirement for the claimant to meet, but it is also not a toothless standard”).

         In support of his argument that the ALJ improperly classified his bilateral carpal tunnel syndrome and his diabetes as nonsevere, Plaintiff cites Brown v. Barnhart, 390 F.3d 535 (8th Cir. 2009). Brown affirmed the SSA's denial of disability benefits because (1) the treating physician's opinion on the plaintiff's disability was not entitled to controlling weight and (2) the ALJ properly discounted the plaintiff's subjective complaints of pain. Id. at 540-41 and 541-42, respectively. However, in Brown the Eighth Circuit did not address the severity of an impairment, other than to quote the regulatory definition of a severe impairment. Id. at 538 (quoting 20 C.F.R. § 404.1520(c)). Accordingly, it is inapplicable here.

         1. Bilateral Carpal Tunnel Syndrome

         Plaintiff contends substantial and competent evidence does not support the ALJ's finding that Plaintiff's bilateral carpal tunnel syndrome is a nonsevere impairment. Specifically, Plaintiff argues the ALJ improperly relied on a February 2013 nerve conduction study and should have instead focused on Plaintiff's subsequent testimony at the administrative hearing regarding his wrist pain.

         At the administrative hearing, Plaintiff testified that he had carpal tunnel release surgery on both wrists in 2011. (Tr. 43-44.) He acknowledged the surgery “improved things. [He's] not waking up at night anymore with numbness, ” however, he reported, he “tend[s] more now to hav[e] like a pain . . . in [his] wrists.” (Tr. 44.) Describing the daily pain in his wrists, Plaintiff characterized it as two on a scale of one to ten. (Tr. 53.) Plaintiff also stated he “is a little weak in [his] hands . . . not as strong in them as [he] used to be” and he “ha[d dropped things] before.” (Tr. 41, 53.) Plaintiff reported that the doctor analyzing the most recent nerve conduction study said Plaintiff “still ha[s] . . . a slight case of carpal tunnel” on both sides. (Tr. 53.)

         Plaintiff's medical records demonstrate that, before the relevant October 8, 2011 date of disability and after a nerve conduction study, [9] Richard Howard, D.O. concluded Plaintiff had “a moderate degree of sensory motor carpal tunnel syndrome bilaterally, ” and recommended “staged bilateral carpal tunnel release” surgery. (Tr. 598.) After this diagnosis, Dr. Howard performed the recommended surgery in March 2011. (Tr. 603, 604.) Post-surgery Plaintiff's physical symptoms improved.

         After the date of disability, Chul Kim, MD, examined Plaintiff, on December 15, 2011, and stated that, since the bilateral carpal tunnel release surgery, Plaintiff reported “the numbness in [his] hands was resolved and [Plaintiff] has little pain in the palmar aspect of bilateral wrists.” (Tr. 605.) Dr. Kim reported Plaintiff's “[h]andgrip and fine finger movements were normal” and other than his right knee and right hip joints, “[a]ll other major joints were without significant . . . limitation of the range of motion.” (Tr. 608.) Dr. Kim's assessment ...

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