IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Social Security Administration,
Plaintiff Zachary Ethridge seeks judicial review,1 of a final administrative decision
denying him disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et
seq., and Supplemental Security Income benefits under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381 et seq. Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial
review of a final decision of the Commissioner of the Social Security Administration under Title
II. Section 1631(c)(3) of the Act and 42 U.S.C. § 1383(c)(3) provide for judicial review to the
same extent as the Commissioner’s final determination under section 205.
The complete facts and arguments are presented in the parties’ briefs and will not be repeated
The parties’ briefs are fully submitted, and an oral argument was held on July 18, 2013.
The Eighth Circuit has set forth the standard for the federal courts’ judicial review of
Standard of Review
denial of benefits, as follows:
Our role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence on the record as a whole. Substantial evidence
is less than a preponderance, but is enough that a reasonable mind would find it
adequate to support the Commissioner’s conclusion. In determining whether
1 The parties have consented to the jurisdiction of the United States Magistrate Judge,
pursuant to the provisions of 28 U.S.C. § 636(c).
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existing evidence is substantial, we consider evidence that detracts from the
Commissioner’s decision as well as evidence that supports it. As long as
substantial evidence in the record supports the Commissioner’s decision, we may
not reverse it because substantial evidence exists in the record that would have
supported a contrary outcome or because we would have decided the case
The claimant has the initial burden of establishing the existence of a disability as defined
Baker v. Barnhardt, 457 F.3d 882, 892 (8th Cir. 2006).
by 42 U.S.C. § 423(d)(1). See Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). To meet the
statutory definition, “the claimant must show (1) that he has a medically determinable physical
or mental impairment which will either last for at least twelve months or result in death, (2) that
he is unable to engage in any substantial gainful activity, and (3) that this inability is the result of
his impairment.” McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir. 1983).
administrative decision, the court considers the educational background, work history and
present age of the claimant; subjective complaints of pain or other impairments; claimant’s
description of physical activities and capabilities; the medical opinions given by treating and
examining physicians; the corroboration by third parties of claimant’s impairments; and the
testimony of vocational experts when based upon proper hypothetical questions that fairly set
forth the claimant’s impairments. McMillian, 697 F.2d at 221.
When reviewing the record to determine if there is substantial evidence to support the
Plaintiff was born in 1987 and was 22 years of age on the date of his applications for
disability and Supplemental Security Income, February 9, 2009. The plaintiff alleged disability
beginning March 1, 1995. Due to a pending appeal on a prior claim, the Administrative Law
Judge (ALJ) considered the period from the day after the date of the last unfavorable decision.
Thus, for the purposes of the ALJ’s decision, the onset date considered is October 27, 2007.
October 27, 2007, and that he suffered from the severe impairments of attention deficit disorder,
bipolar disorder, generalized anxiety disorder, avoidant personality disorder, and obesity. The
ALJ determined that plaintiff did not have an impairment, or combination of impairments, that
meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Although plaintiff suffers from some severe impairments, because they do not
The ALJ determined that plaintiff had not engaged in substantial gainful activity since
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cause at least two “marked2” limitations or one “marked” limitation and “repeated” episodes of
decompensation3, each of extended duration, the “paragraph B” criteria of the mental listings are
not satisfied. In addition, the ALJ found that the plaintiff did not meet the criteria for “paragraph
C” of the mental listings. The ALJ determined that the plaintiff has the residual functional
capacity (RFC) to perform light work, but with some limitations to account for his physical and
psychological impairments. Plaintiff has no past relevant work to assess. With the assistance of
testimony from a vocational expert, the ALJ determined that when not offered a sit/stand option,
plaintiff would be able to perform the requirements of representative light unskilled occupations
such as cleaner housekeeper and packager hand. The ALJ determined that when plaintiff could
be offered a sit/stand option, he would be able to perform the requirements of sedentary unskilled
occupations such as production assembler and packager hand. The ALJ concluded that
considering the plaintiff’s age, education, work experience, and RFC, the plaintiff is capable of
making a successful adjustment to other work that exists in significant numbers in the national
economy. Therefore, a finding of not disabled was appropriate.
Plaintiff argues the ALJ erred by failing to find that the plaintiff met the requirements for
Listing 12.05C for mental impairment, or alternatively failed to analyze why the plaintiff failed
to meet Listing 12.05C in the opinion; the ALJ erred by failing to properly accept Plaintiff’s
treating physician’s opinion as controlling or at least give the opinion proper deference; and that
the ALJ erred in failing to properly evaluate plaintiff’s credibility and subjective reports of pain
and concentration and the impact of these limitations on his ability to work under Social Security
Ruling 96-7 and Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984).4
(ALJ opinion at 4.)
2 A “marked” limitation is defined as a limitation that is moderate, but less than extreme.
3 “Repeated” episodes of decomposition are defined as three episodes within one year, or
an average of once every four months, each episode lasting for at least two weeks.
4 Once the ALJ reaches step four of the sequential evaluation process, he must analyze
both the objective medical evidence and subjective evidence to determine disability. The ALJ is
not free to rely solely on objective medical evidence and ignore a claimant’s subjective
complaints. Once a claimant has established, by medically acceptable objective evidence, an
underlying impairment that could reasonably be expected to cause the subjective complaints, a
claimant’s subjective complaints about the intensity or degree of his or her symptoms can be
enough to establish disability. See Brand v. Secretary, 623 F.2d 523, 525 (8th Cir. 1980), Clark
v. Chater, 75 F.3d 414, 417 (8th Cir. 1996).
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In response, the Commissioner argues the ALJ properly found that the plaintiff failed to
meet Listing 12.05C. In addition, the Commissioner argues the ALJ gave convincing reasons for
assigning reduced weight to the opinion of plaintiff’s treating physician. The Commissioner also
argues the ALJ gave convincing reasons for discounting plaintiff’s credibility, and those reasons
are supported by substantial evidence. Finally, the Commissioner argues that substantial
evidence supports the ALJ’s finding that plaintiff could perform several light jobs.
Upon review, the ALJ properly determined that the plaintiff did not meet the Listing
12.05C requirements. Furthermore, the ALJ did not err in weighing the medical evidence or
evaluating the plaintiff’s credibility and there is substantial evidence to support these findings.
Therefore, a finding of “not disabled” was appropriate.
First, the ALJ properly determined and discussed that the plaintiff did not meet the
Listing 12.05C requirements. An ALJ does not err when she does not explain why an
impairment fails to qualify as one of the listed impairments as long as the ALJ’s general
conclusion is supported by the record. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
In this case, the ALJ’s conclusion was supported because the plaintiff failed to prove two of the
three required factors to meet Listing 12.05C, including showing a valid IQ score and
demonstrating deficits in adaptive functioning. Therefore, the ALJ’s determination that plaintiff
did not meet Listing 12.05C requirements was correct and sufficiently discussed.
Second, the ALJ properly discussed the opinion of plaintiff’s treating physician, Dr.
Zolkowski, and gave valid reasons for discounting his opinion; specifically, that Dr. Zolkowski’s
opinions are not supported by treatment notes or by the results of clinical or diagnostic testing
and are inconsistent with the evidence as a whole. An ALJ has the authority to discount the
opinion, even of a treating physician, when that opinion is conclusory or inconsistent with the
evidence of record. Samons v. Astrue, 497 F.3d 813, 819 (8th Cir. 2007); see also Wildman v.
Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (quoting Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir.
2005) (The Eighth Circuit has repeatedly stated that “[a]n ALJ may discount or even disregard
the opinion of a treating physician where other medical assessments are supported by better or
more thorough medical evidence, or where a treating physician renders inconsistent opinions that
undermine the credibility of such opinions.”)).
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Finally, the ALJ gave valid reason for discounting the credibility of the plaintiff’s
testimony; specifically, that plaintiff received only routine and conservative treatment for his
conditions, that plaintiff’s conditions improved with medication, that no physician restricted
plaintiff’s activities, that plaintiff’s daily activities were inconsistent with his complaints of
disabling pain, and that plaintiff had a poor work record. In this case, because the ALJ pointed
to substantial evidence in the record supporting each rationale, the Court should defer to the
ALJ’s credibility finding. See Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007).
It is ultimately up to the ALJ to resolve conflicts in the evidence; including the weight
each medical opinion is due. Hacker v. Barnhart, 459 F.3d 934 (8th Cir. 2006); 20 C.F.R.
§ 404.1527(d)(2). The ALJ need not explain why an impairment does not qualify as a listed
impairment when the ALJ’s conclusion is supported by the record. Boettcher, 652 F.3d at 863.
In determining the credibility of the plaintiff, the Court must defer to the ALJ’s determinations if
each rationale is supported by substantial evidence. Casey, 503 F.3d at 696. There is substantial
evidence in the record as a whole to support that plaintiff is not disabled as defined by the Social
IT IS, THEREFORE, ORDERED that the decision of the Commissioner is affirmed.
Dated this 30th day of July, 2013, at Jefferson City, Missouri.
/s/ Matt J. Whitworth
MATT J. WHITWORTH
United States Magistrate Judge
5 Plaintiff’s arguments in support of this appeal were carefully and fully considered. Any
arguments that are not specifically discussed in this order have been considered and determined
to be without merit. This Court finds there is substantial evidence in the record to support the
decision of the ALJ.
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