Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Colbert v. Berryhill

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

March 22, 2018

JESSE L. COLBERT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER AFFIRMING THE COMMISSIONER'S DECISION

          GREG KAYS, CHIEF JUDGE

         Plaintiff Jesse L. Colbert (“Colbert”) petitions for review of an adverse decision by Defendant, the Acting Commissioner of Social Security (“Commissioner”). Colbert applied for Social Security disability insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-434, and for supplemental security income under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. The Administrative Law Judge (“ALJ”) found that Colbert could perform other relevant work and was therefore not disabled.

         After carefully reviewing the record and the parties' arguments, the Court finds the ALJ's opinion is supported by substantial evidence on the record as a whole. The Commissioner's decision is AFFIRMED.

         Procedural and Factual Background

         The complete facts and arguments are presented in the parties' briefs and are repeated here only to the extent necessary.

         Colbert filed his application under Title II on May 17, 2013, and under Title XVI on August 31, 2013. He alleges a disability onset date of August 31, 2013. The Commissioner denied the application at the initial claim level, and Colbert appealed the denial to an ALJ. After a hearing, the ALJ denied Colbert's claim on July 31, 2015, finding that he was not disabled under the Act. The Appeals Council denied Colbert's request for review on October 28, 2016. Colbert has exhausted all administrative remedies and judicial review is now appropriate under 42 U.S.C. § 405(g).

         Standard of Review

         The Commissioner follows a five-step sequential evaluation process[1] to determine whether a claimant is disabled, that is, unable to engage in any substantial gainful activity by reason of a medically determinable impairment that has lasted or can be expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A).

         A federal court's review of the Commissioner's decision to deny disability benefits is limited to determining whether the Commissioner's findings are supported by substantial evidence on the record as a whole. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011). Substantial evidence is less than a preponderance, but enough evidence that a reasonable mind would find it sufficient to support the Commissioner's decision. Id. In making this assessment, the court considers evidence that detracts from the Commissioner's decision, as well as evidence that supports it. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). The court must “defer heavily” to the Commissioner's findings and conclusions. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The court may reverse the Commissioner's decision only if it falls outside of the available zone of choice, and a decision is not outside this zone simply because the court might have decided the case differently were it the initial finder of fact. Buckner, 646 F.3d at 556.

         Discussion

         Colbert argues that the ALJ erred: (1) at steps two and three by failing to properly evaluate his diabetic peripheral neuropathy, toxic myopathy, and global assessment of functioning (“GAF”) scores, (2) at step four by failing to properly evaluate the medical evidence, (3) at step four by failing to properly evaluate his subjective complaints, and (4) at step five by improperly relying on the testimony of the vocational expert. After reviewing the record and the applicable law, the Court finds these arguments are without merit.

         I. Substantial evidence supports the ALJ's evaluation of Colbert's impairments at steps two and three.

         Colbert argues that the ALJ improperly found that his diabetic peripheral neuropathy and toxic myopathy were non-severe. The ALJ evaluates whether the claimant's impairments are severe at the second step of the sequential evaluation process. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment significantly limits a claimant's ability to do work-related activities. See Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007). The impairment must also be expected to result in death or have lasted-or be expected to last-for a continuous period of at least 12 months. 20 C.F.R. § 404.1509. The severe impairment standard is not onerous, but it is not toothless either. Kirby, 500 F.3d at 708. It is the claimant's burden to establish severity. Id. at 707.

         Here, the ALJ found that Colbert's diagnosis with toxic myopathy was a non-severe impairment. The record reveals that on the date Colbert was diagnosed, his examinations were normal and the physician did not prescribe any treatment for the condition. R. at 341-42, 576-77. The fact that a claimant was diagnosed with an impairment does not mean the impairment is severe. See Buckner v. Astrue, 646 F.3d 549, 557 (8th Cir. 2011). As for Colbert's diabetic peripheral neuropathy, the ALJ addressed this diagnosis while discussing the RFC. R. at 35-36. The ALJ addressed Colbert's diabetes and neuropathy as required by the applicable regulations. See 20 C.F.R. §§ 404.1545(e), 416.945(e) (“[W]e will consider the limiting effects of all your impairment(s), even those that are not severe, in determining your residual functional capacity.”). Therefore, because the ALJ addressed Colbert's diabetic neuropathy at step four, the ALJ's failure to discuss it at step two did not affect the outcome and is harmless error. See Branch v. Colvin, No. 4:14-cv-1188, 2015 WL 5157752, at *15 (E.D. Mo. Sept. 2, 2015) (“For judicial review of the denial of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.