United States District Court, E.D. Missouri, Eastern Division
LISA R. LACER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
an action under 42 U.S.C. § 405(g) or judicial review of
the final decision of Defendant Nancy A. Berryhill, the
Acting Commissioner of Social Security, denying the
application of Plaintiff Lisa R. Lacer
(“Plaintiff”) for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security
Act, 42 U.S.C. §§ 401 et seq. (the
“Act”). The parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 9).
Because the decision denying benefits was supported by
substantial evidence, the Commissioner's denial of
Plaintiff's application will be affirmed.
16, 2014, Plaintiff testified at a hearing before the
Administrative Law Judge (“ALJ”). (Tr. 31-47).
Plaintiff testified that she can no longer do her past work
helping classroom teachers or doing sales because of her
inability to focus, her anxiety being around people, and her
level of stress. (Tr. 34-36). She testified that she has mood
swings, has anger issues, has panic attacks four times a day,
has crying spells two or three times a day, gets nervous in
groups of people, has severe depression in the wintertime,
gets agitated if she has done something wrong, and has racing
thoughts that make her unable to focus. (Tr. 39-45). She also
testified that due to arthritis and a back injury, she has
trouble lifting 15 or 20 pounds, can stand for only about 30
minutes before it becomes too painful, and can sit for only
10 to 15 minutes before becoming stiff. (Tr. 46-47).
treatment records show that every few months during the
alleged disability period, Plaintiff sought treatment for
swelling in her legs or for joint pain in her hands, knees,
ankles, and/or feet; her treatment providers have diagnosed
osteoarthritis, lumbar disc degeneration, and plantar
fibromatosis; and they have recommended weight loss,
non-narcotic medications, and orthotic inserts. (Tr. 232-39,
263-68, 277-79, 293-303, 316, 288-91). Plaintiff's
treatment records also show that she sought regular treatment
from a psychiatrist, Howard Ilizicky, M.D., for symptoms
including depression, sleep disturbance, “pissy
episodes, ” mood swings, forgetfulness, and racing
thoughts; Dr. Ilizicky diagnosed her with bipolar disorder
and anxiety and prescribed various medications, including
Wellbutrin, Klonopin, and Prozac. (Tr. 247-57, 272-73, 287).
record contains opinion evidence from three sources regarding
Plaintiff's mental functioning. On November 8, 2012,
consultative examiner David Peaco conducted a psychological
evaluation of Plaintiff. (Tr. 260). He diagnosed Plaintiff
with bipolar disorder and assigned a Global Assessment of
Functioning (“GAF”) score of 55, indicating
moderate symptoms. (Tr. 261). He opined that Plaintiff was able
to understand and remember simple instructions; that her
persistence in completing tasks was mildly impaired; that her
concentration was markedly impaired; that her social
functioning was moderately impaired; and that her capacity to
function effectively with the world around her was moderately
impaired due to persistent symptoms of bipolar disorder. (Tr.
November 19, 2012, state agency psychological consultant
Robert Cottone, Ph.D., reviewed the record and issued an
opinion. (Tr. 56-60). He opined that Plaintiff was markedly
limited in the ability to understand and remember detailed
instructions; markedly limited in the ability to carry out
detailed instructions; moderately limited in the ability to
maintain attention and concentration for extended periods;
moderately limited in the ability to perform activities
within a schedule, maintain regular attendance, and be
punctual within customary tolerances; moderately limited in
the ability to work in coordination with or in proximity to
others without being distracted by them; moderately limited
in the ability to complete a normal workday and workweek
without interruptions from psychologically based symptoms and
to perform at a consistent pace; moderately limited in the
ability to interact appropriately with the general public;
moderately limited in the ability to accept instructions and
respond appropriately to criticism from supervisors;
moderately limited in the ability to get along with coworkers
or peers; and moderately limited in the ability to set
realistic goals or make plans independently of others. (Tr.
59-60). He concluded that Plaintiff was capable of engaging
in at least simple work tasks and would perform best in a
position that did not include dealing with the public that
involved only limited interaction with peers. (Tr. 60).
August 15, 2013, Plaintiff's treating psychiatrist, Dr.
Ilizicky, filled out a Medical Source Statement. (Tr.
274-76). He found that Plaintiff had marked limitations in
her ability to understand and remember complex instructions,
to carry out complex instructions, and to make judgments on
complex work-related decisions, but had only mild limitations
in the ability to understand, remember, and carry out simple
instructions and to make judgments on simple work-related
decisions. (Tr. 274). Dr. Ilizicky further opined that
Plaintiff had marked limitations in her ability to interact
appropriately with the public, supervisors, and co-workers,
and to respond appropriately to usual work situations and
changes in a routine work setting. (Tr. 275). He indicated
that these limitations were supported by her severe mood
swings, unstable emotions, periods of extreme mania lasting
four to five years, and inability to predict how she will
interact on a day-to-day basis. (Tr. 274-75). He also
indicated that at times she has extreme racing thoughts that
make most functioning difficult. (Tr. 275). He stated that
she had experienced a gradual decline in overall function.
September 13, 2012, Plaintiff applied for DIB, alleging that
she had been unable to work since December 5, 2011, due to
bipolar disorder, sleep apnea, and depression. (Tr. 128,
137-40, 165). Her application was initially denied, and
Plaintiff requested a hearing before an ALJ. (Tr. 64, 76-77).
After a hearing, the ALJ issued an unfavorable decision dated
July 21, 2014. (Tr. 11-22). Plaintiff filed a request for
review, and on November 23, 2015, the Appeals Council denied
Plaintiff's request for review. (Tr. 1-3). Plaintiff has
exhausted all administrative remedies, and the decision of
the ALJ stands as the final decision of the Commissioner of
the Social Security Administration.
Standard for Determining Disability Under the Act
eligible for benefits under the Social Security Act, a
claimant must prove he or she is disabled. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001);
Baker v. Sec'y of Health & Human Servs., 955
F.2d 552, 555 (8th Cir. 1992). The Social Security Act
defines as disabled a person who is unable “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 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); see
also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010).
The impairment must be “of such severity that [the
claimant] is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such
work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.” 42 U.S.C.
determine whether a claimant is disabled, the Commissioner
engages in a five-step evaluation process. 20 C.F.R. §
404.1520(a); see also McCoy v. Astrue, 648 F.3d 605,
611 (8th Cir. 2011) (discussing the five-step process). At
Step One, the Commissioner determines whether the claimant is
currently engaging in “substantial gainful
activity”; if so, then he is not disabled. 20 C.F.R.
§ 404.1520(a)(4)(i); McCoy, 648 F.3d at 611. At
Step Two, the Commissioner determines whether the claimant
has a severe impairment, which is “any impairment or
combination of impairments which significantly limits [the
claimant's] physical or mental ability to do basic work
activities”; if the claimant does not have a severe
impairment, he is not disabled. 20 C.F.R. §§
404.1520(a)(4)(ii), 404.1520(c); McCoy, 648 F.3d at
611. At Step Three, the Commissioner evaluates whether the
claimant's impairment meets or equals one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1 (the “listings”). 20 C.F.R. §
404.1520(a)(4)(iii); McCoy, 648 F.3d at 611. If the
claimant has such an impairment, the Commissioner will find
the claimant disabled; if not, the Commissioner proceeds with
the rest of the five-step process. 20 C.F.R. §§
404.1520(d); McCoy, 648 F.3d at 611.
to Step Four, the Commissioner must assess the claimant's
“residual functional capacity”
(“RFC”), which is “the most a claimant can
do despite [his or her] limitations.” Moore v.
Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20
C.F.R. § 404.1545(a)(1)); see also 20 C.F.R.
§ 404.1520(e). At Step Four, the Commissioner determines
whether the claimant can return to his past relevant work, by
comparing the claimant's RFC with the physical and mental
demands of the claimant's past relevant work. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 404.1520(f); McCoy,
648 F.3d at 611. If the claimant can perform his past
relevant work, he is not disabled; if the claimant cannot,
the analysis proceeds to the next step. Id. At Step
Five, the Commissioner considers the claimant's RFC, age,
education, and work experience to determine whether the
claimant can make an adjustment to other work in the national
economy; if the claimant cannot make an adjustment to other
work, the claimant will be found disabled. 20 C.F.R. §
404.1520(a)(4)(v); McCoy, 648 F.3d at 611.
Step Four, the burden remains with the claimant to prove that
he is disabled. Moore, 572 F.3d at 523. At Step
Five, the burden shifts to the Commissioner to establish
that, given the claimant's RFC, age, education, and work
experience, there are a significant number of other jobs in
the national economy ...