Cook v. Astrue
| Citation | 629 F.Supp.2d 925 |
| Decision Date | 12 May 2009 |
| Docket Number | No. 07-3436-SSA-CV-S-WAK.,07-3436-SSA-CV-S-WAK. |
| Parties | Bob D. COOK, Plaintiff, v. Michael J. ASTRUE, Commissioner, Social Security Administration, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Bruce K. Kirby, Schmidt, Kirby & Sullivan, P.C., Springfield, MO, for Plaintiff.
OGCSSAR7, Office of General Counsel, Jeffrey P. Ray, Office of the United States Attorney, Kansas City, MO, for Defendant.
Claimant Bob D. Cook seeks judicial review,1 pursuant to 42 U.S.C. § 405(g), of a final administrative decision denying Supplemental Security Income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1383 et seq. He claims he became disabled beginning June 26, 2002.2 The parties' briefs were fully submitted, and on April 6, 2009, an oral argument was held.
Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir.2003).
In reviewing the administrative record, the court must sustain the Commissioner's decision if the findings are supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.2000). The court may not, however, "rubber stamp" the Commissioner's decision, but must examine both the evidence that supports and detracts from the administrative determination. Piercy v. Bowen, 835 F.2d 190, 191 (8th Cir.1987); Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir.1991).
The claimant has the initial burden of establishing the existence of a disability as defined 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).
If the claimant establishes the impairment is sufficiently severe to prevent return to a former occupation, the burden shifts to the Commissioner to produce evidence the claimant can perform other substantial gainful employment. Buck v. Bowen, 885 F.2d 451, 454 (8th Cir.1989). The Commissioner need not find a specific job opening for the claimant, but must demonstrate that substantial gainful activity is realistically within the capabilities of the claimant. McMillian, 697 F.2d at 221.
When reviewing the record to determine if there is substantial evidence to support the 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.
Claimant Bob Cook was born in 1956, and has a high school equivalency (GED) education. Claimant has very a limited relevant work record. Claimant has no earnings reported since 1993, and intermittent and very minimal earnings for years prior to 1993. Claimant was in prison from October 2000 through June 2002 and from July 2003 to February 2004, and he served thirty days in June 2006.3 In his disability report and testimony before the ALJ, claimant alleged disability due to degenerative disc disease, left shoulder adhesive capsulitis, psoriasis, gastric esophageal reflux disease, restless leg syndrome, depression and history of alcohol abuse. Claimant alleged that these conditions prevent him from working because he can't lift, walk very far, stand for any period of time, or do any constant bending. Claimant stated his mother does all of his household chores, he spends most of the day lying in bed and he has no drivers license. Claimant did state he did not have a driver's license because he had at least three convictions for driving under the influence of alcohol. The ALJ found claimant's allegation of impairments of sufficient severity to prevent the performance of any sustained work to not be credible. The ALJ found claimant had "some degenerative disc disease, a history of shoulder adhesive capsulitis, psoriasis, gastric esophageal reflux disease, a possible restless leg syndrome controlled by medication, mild depression or dysthymic disorder, a history of alcohol abuse, but no impairment or combination of impairments that meets or equals in severity the requirements of any impairment listed in Appendix 1, Subpart P, Regulations No. 4." (Tr. 23.)
At the hearing before the undersigned, plaintiff argued that the ALJ erred in failing to afford appropriate weight and controlling weight to the opinions and conclusions of claimant's treating physician; that the ALJ erred in failing to assess properly claimant's residual functional capacity (RFC); and erred in failing to find claimant's testimony credible.
On July 2, 2002, one week after claimant's disability onset, he completed the claimant questionnaire in connection with his application for disability and reported that pain in his back, legs, and left arm prevented him from completing his daily activities, but he also reported that acetaminophen and other over-the-counter medications helped relieve his pain. Claimant wrote he could not dress himself and that his daily activities didn't consist of much because of his disability, but he also wrote that he could sweep, wash dishes, complete chores as long as he didn't have to lift anything, and attend activities such as church. He also reported he could drive but that his driver's license was not eligible to be renewed until 2008.
Prior to his release from prison in June 2002, claimant's medical records show he was treated for psoriasis, headaches, and for complaints of pain in his back, chest, left arm, shoulder and neck. He was given topical creams, prednisone, ibuprofen, acetaminophen and naproxen to control his symptoms. Claimant also received physical therapy for his diagnosis of shoulder adhesive capsulitis. By April 30, 2002, claimant was noted as having progress in range of motion and could actively towel his back with minimal pain. On May 30, 2002, the physical therapy notes show good active shoulder abduction to 90 degrees, also with some accompanying shoulder elevation, and could lift two pound weights with ten repetitions, both sitting and supine. On June 6, 2002, he was discharged from physical therapy.
On July 9, 2002, claimant presented to Bruce Harms, L.C.S.W., for mental health treatment. On examination, he was alert and oriented and his memory was intact. He was assessed major depression without psychotic features. On August 14, 2002, Cook returned for follow-up with Arifa Salam, M.D., and was found to be alert and oriented with logical thoughts. It was also noted, however, that the claimant appeared to be in a depressed mood, and reported problems with concentration and memory, and his psychomotor activity appeared retarded. Claimant was prescribed Zoloft to target his depression, and Doxepin for his reported insomnia. Three months later, on November 26, 2002, claimant returned to Dr. Salam and reported that he quit taking the Zoloft because he didn't notice improvement, and was evasive regarding dropping out of treatment for three months. Claimant now reported being severely depressed. Dr. Salam noted claimant to be oriented with fair judgment and nonpsychotic, but that his psychomotor activity was slow, his affect restricted, he had a strong odor of nicotine, and Cook's claimed sobriety for twenty months was questioned. Claimant was prescribed new medications for his depression and insomnia based on his reports that the previous medications were ineffective. On January 2, 2003, claimant again saw Dr. Salam who noted that claimant was alert and oriented, his speech was soft in tone, but he was otherwise normal. Claimant reported his mood to be improved, he appeared to be wider in range of affect, and his medications were continued. On that same date, Dr. Salam provided a medical source statement (MSS).
Dr. Salam's mental MSS found claimant's mental impairments to have moderate affect in several areas of functioning in the work environment, but also noted no significant impairments in many areas. Dr. Salam did not find claimant to be markedly limited in any area of functioning. Dr. Salam specifically found claimant to have the capacity to perform work-related mental activities on a sustained basis involving understanding, remembering and carrying out simple instructions; making judgments that are commensurate with the functions of unskilled work; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting.
David Dale, D.O., provided a MSS on February 10, 2003. Prior to providing the MSS, Dr. Dale saw the claimant for the first time on October 28, 2002, and subsequently, on November 18 and December 12, 2002, and on January 5, 2003. Cook presented himself to Dr. Dale originally with complaints of pain in his shoulder,...
To continue reading
Request your trial
- Miller v. Berryhill
- Darnel v. Colvin
- Seavey v. Berryhill, Case No. 2:16-CV-00063-SPM
- Paul P. v. Saul