Patricia Vance v. Nancy A. Berryhill , 860 F.3d 1114 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1591
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Patricia Jane Vance,
lllllllllllllllllllll Plaintiff - Appellant,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Administration,1
lllllllllllllllllllll Defendant - Appellee.
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 17, 2016
Filed: June 27, 2017
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Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
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COLLOTON, Circuit Judge.
1
Nancy A. Berryhill is substituted for her predecessor under Federal Rule of
Appellate Procedure 43(c)(2).
Patricia Vance appeals a judgment of the district court2 upholding the Social
Security Commissioner’s denial of her application for supplemental security income.
We affirm.
I.
Vance applied for supplemental security income under Title XVI of the Social
Security Act, 42 U.S.C. § 1382, based on a nerve disorder. She claimed a disability
onset date of January 1, 2010, but later amended it to October 3, 2011. The Social
Security Administration denied Vance’s claim initially and on reconsideration. After
a hearing in July 2013, an Administrative Law Judge, applying the familiar five-step
process under the regulations, found that Vance was not disabled. See Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 416.920 (2011).
The ALJ determined at step one that Vance had not engaged in “substantial
gainful activity” since October 3, 2011, the application date. At step two, he
determined that Vance suffered from severe impairments—inherited myelopathy
versus conversion disorder, adjustment disorder with mixed anxiety and depressed
mood, and borderline intellectual functioning. At step three, however, the ALJ
concluded that these impairments did not meet the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (2011).
Before proceeding to steps four and five, the ALJ determined Vance’s residual
functional capacity. The judge concluded that Vance had the capacity “to perform a
range of work activity that: requires no more than a sedentary level of physical
exertion; accommodates the use of a walker; and involves only unskilled, simple,
routine, and repetitive” tasks. Relying on testimony of a vocational expert, the ALJ
2
The Honorable F.A. Gosset, III, United States Magistrate Judge for the District
of Nebraska, sitting by consent of the parties pursuant to 28 U.S.C. § 636(c).
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found that despite these limitations, Vance was able to perform jobs that exist in
significant numbers in the national economy. Based on this analysis, the ALJ
concluded that Vance was not disabled and denied her application. The Appeals
Council denied review, and the district court upheld the ALJ’s decision.
Vance appeals, citing three alleged errors: (1) that the ALJ failed to explain
adequately his decision that Vance did not meet any of the Listing 11.00 impairments,
(2) that substantial evidence did not support the ALJ’s conclusion that Vance did not
meet Listing 12.05C, and (3) that the ALJ failed to give controlling weight to the
opinion of Vance’s treating physician.
We review the district court’s judgment de novo, considering evidence that
both supports and detracts from the ALJ’s conclusion. We will affirm if substantial
evidence on the record as a whole supports the Commissioner’s determination. Julin
v. Colvin, 826 F.3d 1082, 1086 (8th Cir. 2016). “Substantial evidence is less than a
preponderance, but enough that a reasonable mind would find it adequate to support
the ALJ’s decision.” Gonzales v. Barnhart, 465 F.3d 890, 894 (8th. Cir. 2006).
II.
Vance argues that the ALJ failed to point to specific evidence to support its
step-three conclusion that she did not meet any of the requirements of Listing 11.00.
This Listing enumerates several categories of neurological impairments, such as
epilepsy, brain tumors, multiple sclerosis, and amyotrophic lateral sclerosis. Vance
also argues that the ALJ’s discussion of her neurological impairments in step four
was inadequate because it was too cursory and one-sided. Vance asks us to remand
so that the ALJ can provide a more detailed analysis of this Listing.
In step three, the ALJ did not discuss any particular Listing 11.00 neurological
impairment, but he did address the Listing overall. The judge stated that in reaching
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the conclusion that Vance did not meet the Listings, “the undersigned has
appropriately evaluated medical and other evidence pertaining to the claimant’s
medically determinable impairments in conjunction with all the relevant severity
criteria contained within the 1.00 Musculoskeletal System, Neurological, and 12.00
Mental Disorders series of listed impairments.” AR 26 (emphasis added).
In step four, the ALJ discussed Vance’s complaints of a nerve disorder in
greater detail. He explained that Vance sought treatment for leg numbness and
tingling with several neurologists in November 2010, but that testing was essentially
normal. He acknowledged that further testing in April 2011 showed decreased
sensation and weakness and an abnormal gait, but that Vance had good strength in her
extremities. The judge noted that Vance was diagnosed with inherited myelopathy
versus conversion disorder in June 2011, and that by January 2012, she complained
that her symptoms had worsened. Testing, however, showed that strength and
sensation were intact. The ALJ also noted that other physical examinations in 2012
showed that Vance was generally in good health.
Generally, “an ALJ’s failure to adequately explain his factual findings is ‘not
a sufficient reason for setting aside an administrative finding.’” Scott ex rel. Scott v.
Astrue, 529 F.3d 818, 822 (8th Cir. 2008) (quoting Senne v. Apfel, 198 F.3d 1065,
1067 (8th Cir. 1999)). Remand is warranted “where the ALJ’s factual findings,
considered in light of the record as a whole, are insufficient to permit this Court to
conclude that substantial evidence supports the Commissioner’s decision.” Id. An
ALJ’s failure to address a specific listing or to elaborate on his conclusion that a
claimant’s impairments do not meet the listings is not reversible error if the record
supports the conclusion. Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006);
Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003). “We have
consistently held that a deficiency in opinion-writing is not a sufficient reason for
setting aside an administrative finding where the deficiency had no practical effect
on the outcome of the case.” Senne, 198 F.3d at 1067.
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In her argument about Listing 11.00, Vance asserts only that she meets Listing
11.17A. Listing 11.17A requires that a claimant have a “[d]egenerative disease not
listed elsewhere, such as Huntington’s chorea, Friedreich’s ataxia, and spino-
cerebellar degeneration,” as well as “[d]isorganization of motor function as described
in 11.04B.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.17A (2011). To meet Listing
11.04B, disorganization of a claimant’s motor function must be “[s]ignificant and
persistent . . . in two extremities, resulting in sustained disturbance of gross and
dexterous movements, or gait and station.” Id. § 11.04B. Because the ALJ’s
conclusion on Listing 11.17A is supported by substantial evidence on the record as
a whole, the fact that he did not mention Listing 11.17 in his opinion or thoroughly
discuss each piece of medical evidence does not warrant remand.
Vance fails to meet Listing 11.17A because the medical evidence does not
show that she had significant and persistent disorganization of motor function in two
extremities. In March 2011, Dr. Dugan, a neurologist, reported that although Vance
complained that her right leg would give out, her spinal discs were benign, the
strength in her extremities was good, and her reflexes were symmetrically brisk. An
April 2011 appointment showed that although she used a cane and her gait was
slightly wide based, Vance’s motor function was largely intact with no atrophy or
fasciculation. She was able to stand up from a chair without assistance, and she had
good strength in her extremities despite some decrease in sensation. A neurological
follow-up showed that Vance’s knee and ankle reflexes were intact, that her strength
was good, and that her falls did not appear to have a neurological cause. A magnetic
resonance image of Vance’s spine in May 2011 showed no anomalies or pathology,
and further examination of her right lower extremity revealed no abnormalities. In
June 2011, Dr. Wisco, a neurologist, diagnosed Vance with myelopathy versus
conversion disorder, but Dr. Wisco’s testing at the time showed that Vance’s
neurological and motor function and gait were largely unchanged from April. At an
appointment in January 2012, Vance displayed slightly improved motor function from
June 2011, and her reflexes increased in all extremities symmetrically. Her gait was
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narrow based, but she was able to maneuver with a walker with little difficulty. A
reasonable mind could find the record supports the ALJ’s determination that Vance
does not meet Listing 11.17A.
III.
Vance complains that the ALJ erred in finding that she did not meet the
requirements for mental retardation under Listing 12.05C. Listing 12.05C states:
12.05 Mental Retardation: Mental retardation refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
...
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and
significant work-related limitation of function;
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C (2011) (revised Sept. 3, 2013, to refer
to “intellectual disability” rather than “mental retardation”).
To meet the requirements of this Listing, Vance must demonstrate both that she
(1) suffers from significantly subaverage general intellectual functioning with deficits
in adaptive functioning that initially manifested during the developmental period; and
(2) meets the requirements of subsection C. See Ash v. Colvin, 812 F.3d 686, 690
(8th Cir. 2016).
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The ALJ found that Vance did not meet Listing 12.05C. Although she had
verbal, performance, and full scale IQ scores of 63, 69, and 64, respectively, the ALJ
determined that Vance failed to show “significantly subaverage general intellectual
functioning with deficits in adaptive functioning.” The ALJ acknowledged that
Vance was in special education classes, but noted that during the developmental
period, she graduated from high school, obtained a driver’s license, married, and gave
birth to children. Based on this evidence, the ALJ determined that Vance
demonstrated abilities in the developmental period that were inconsistent with
“‘listing-level’ mental retardation.”
Vance argues that she meets Listing 12.05C because she exhibited the requisite
deficits in adaptive functioning prior to age 22. She cites several factors: her
placement on an Individual Education Plan in high school; reports from her high
school psychologist, Dr. Zimmerman, indicating that she had mild delays in
articulation, language, and organizational skills; her limited employment history; and
her difficulty with performing activities of daily living.
Other evidence in the record, however, supports the ALJ’s conclusion. Vance
now can read, write, pay bills, count change, groom herself, cook, perform household
chores with her daughter’s help, shop, go out to eat, attend church, and talk on the
phone. These activities are inconsistent with the deficits in adaptive functioning
contemplated by Listing 12.05C. See Johnson v. Colvin, 788 F.3d 870, 873 (8th Cir.
2015); Clark v. Apfel, 141 F.3d 1253, 1256 (8th Cir. 1998). Dr. Zimmerman’s own
report supports the ALJ’s conclusion as well. The report states that Vance performed
only “mildly below developmental levels” and that she was “functioning within the
educable range.” The report also suggests the Vance is capable of holding
employment when it counsels that her “instruction should emphasize career planning
and pre-vocational training.”
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While Vance’s history of special education and low IQ scores suggest some
level of intellectual disability, “[t]he mere fact that some evidence may support a
conclusion opposite to that reached by the Commissioner does not allow this Court
to reverse the decision of the ALJ.” Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th
Cir. 2004). The ALJ reasonably found, based on the record as a whole, that Vance
does not exhibit the deficits in adaptive functioning needed to meet Listing 12.05C.
IV.
Vance next argues that the ALJ erred by not giving controlling weight to the
opinion of her treating physician, Dr. Jung, concerning her residual functional
capacity. The ALJ gave Dr. Jung’s opinion only partial weight after determining that
the opinion relied in part on Vance’s subjective complaints. Because the ALJ found
that Vance was not credible, it followed that Dr. Jung’s opinion lacked force when
it relied on Vance’s complaints. The ALJ instead gave greater weight to the opinions
of state agency medical consultants.
A treating physician’s opinion is entitled to controlling weight when it is
supported by medically acceptable techniques and is not inconsistent with substantial
evidence in the record. Julin, 826 F.3d at 1088; see also 20 C.F.R. § 416.927 (2011).
But an ALJ need not give a treating physician’s opinion controlling weight when the
opinion is based on a claimant’s subjective complaints that ALJ does not find
credible. Julin, 826 F.3d at 1089.
When evaluating the claimant’s subjective complaints, the ALJ must consider
all of the evidence, including objective medical evidence, the claimant’s work history,
and evidence relating to the factors set forth in Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984): (i) the claimant’s daily activities; (ii) the duration, frequency,
and intensity of the claimant’s pain; (iii) precipitating and aggravating factors; (iv)
the dosage, effectiveness, and side effects of medication; and (v) the claimant’s
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functional restrictions. Julin, 826 F.3d at 1086. An ALJ need not expressly cite the
Polaski factors when, as here, the judge conducts an analysis pursuant to 20 C.F.R.
§ 416.929, because the regulation “largely mirror[s] the Polaski factors.” Schultz v.
Astrue, 479 F.3d 979, 983 (8th Cir. 2007); see 20 C.F.R. § 416.929(c)(3)(i)-(iv), (vii)
(2011) (discussing how the agency will consider information that the claimant
submits about pain or other symptoms).
The ALJ concluded that the objective medical evidence did not support
Vance’s allegations as to the intensity, duration, and limiting effects of her physical
impairments. Vance complained that her legs hurt her and that she repeatedly fell, but
evidence showed that she had good strength in her extremities, that her knee and
ankle reflexes were intact, and that she had no structural or anatomic anomalies.
Although testing revealed decreased sensation in her lower extremities, and she was
diagnosed with myelopathy versus conversion disorder, evidence also showed that
she could stand up from a chair without the use of her arms and that she was able to
maneuver with a walker without difficulty. Her physical examinations since 2012
were also normal.
The inconsistency between Vance’s subjective complaints and evidence
regarding her activities of daily living also raised legitimate concerns about her
credibility. See Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001). Vance
complained that she could not walk without falling or cook her own meals, but there
was evidence that Vance shopped weekly for three to four hours at a time and cooked
for herself when she was alone. The record shows that she could drive, perform
certain household chores, travel out to eat, and attend church.
Vance’s inability to follow treatment recommendations weighed against her
credibility, too. Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005). A treating
physician referred Vance for physical therapy and a neuropsychiatry evaluation, but
there is no record that she attended these sessions. Although not discussed in the
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ALJ’s opinion, there was evidence in the record from which the ALJ could infer that
Vance’s claims were overstated. See Chamberlain v. Shalala, 47 F.3d 1489, 1494-95
(8th Cir. 1995). During a January 2012 neurology appointment, Dr. Dupont and Dr.
Wisco observed Vance’s gait. In his report, Dr. Dupont stated that although he
witnessed Vance fall, the fall appeared to be very non-organic in nature. During the
same appointment, Vance noted that she could not hold on to objects with her left
hand and that she had been falling more than usual. But Dr. Dupont reported that the
tone in her left hand improved with distraction, and that the strength in her
extremities had improved from June 2011.
Because the ALJ reasonably concluded that Vance’s statements lacked
credibility, he could discount Dr. Jung’s opinion to the extent that it relied on Vance’s
subjective complaints. Given the medical evidence detailed above, it is apparent that
Dr. Jung’s opinion was based partially on Vance’s complaints. The medical evidence
did not support Dr. Jung’s opinion that Vance could stand for only one hour in a
workday, that she would need to take unscheduled breaks, and that she would be
absent more than four times a month. Rather, his opinion reflected Vance’s
complaints that she could take only a few steps without resting and that she often
needed to rest for half-hour periods before standing again. The ALJ thus had ample
reason to discount Dr. Jung’s opinion and to rely instead on the opinions of the state
agency medical consultants, which were more consistent with the medical evidence.
See Heino v. Astrue, 578 F.3d 873, 880 (8th Cir. 2009).
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For the foregoing reasons, the judgment of the district court is affirmed.
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