Nishke v. Astrue

878 F. Supp. 2d 958, 2012 WL 2415538, 2012 U.S. Dist. LEXIS 88115
CourtDistrict Court, E.D. Missouri
DecidedJune 26, 2012
DocketCase No. 4:11CV1085SNLJ/FRB
StatusPublished
Cited by12 cases

This text of 878 F. Supp. 2d 958 (Nishke v. Astrue) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nishke v. Astrue, 878 F. Supp. 2d 958, 2012 WL 2415538, 2012 U.S. Dist. LEXIS 88115 (E.D. Mo. 2012).

Opinion

ORDER and JUDGMENT

STEPHEN N. LIMBAUGH, JR., District Judge.

This matter is before the Court on the United States Magistrate Judge’s Report and Recommendation [22], filed June 1, 2012. The plaintiff has filed objections to the Report [23], filed June 15, 2012.

In general, the plaintiff contends that the Magistrate Judge erred in his report by failing to address evidentiary flaws in the Administrative Judge’s (ALJ) findings that the plaintiff was not disabled; and thus, not entitled to the disability benefits sought. Plaintiff contends that the Magistrate Judge, as well as the ALJ, concluded that the plaintiff was noncompliant with her medication without sufficient supporting evidence. Plaintiff contends that the Magistrate Judge, as well as the ALJ, failed to give proper weight to certain “treating physicians” opinions; and gave improper greater weight to other certain “treating physicians” opinions. Finally, plaintiff contends that the Magistrate Judge erred in his application of Eighth Circuit caselaw regarding the determination of disability where there is medical evidence of severe mental health issues such as auditory hallucinations and death wishes.

The Court has carefully reviewed the hearing transcript, the ALJ’s decision, and the Magistrate Judge’s Report and Recommendation. The Court concurs with the Magistrate Judge’s findings that the ALJ reviewed all evidence in accordance with applicable Eighth Circuit law. The Court further concurs with the Magistrate Judge’s findings that substantial evidence in the record as a whole supports the ALJ’s credibility assessment of the plaintiff, as well as the conclusion that plaintiff was noncompliant with prescribed medication and that her condition was controllable by adhering to a treatment program. See, Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir.2011); see also, Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). The Court further finds that the Magistrate Judge, as well as the ALJ, did not err in reviewing the medical opinions of all [966]*966the plaintiffs treating and consulting medical caregivers and giving more weight to some opinions and discounting other opinions. See, Davidson v. Astrue, 578 F.3d 838, 843 (8th Cir.2009); Heino v. Astrue, 578 F.3d 873, 879-80 (8th Cir.2009); see also, Perkins v. Astrue, at 898-99 (internal citations omitted). The Court further finds that the ALJ’s determination of plaintiffs residual functional capacity (RFC), as well as the Magistrate Judge’s review thereof, was consistent with the relevant evidence. See, Jones v. Astrue, 619 F.3d 963, 971 (8th Cir.2010).

Accordingly,

IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation [22] is SUSTAINED, ADOPTED and INCORPORATED herein.

IT IS FURTHER ORDERED that the Commissioner’s final decision affirming the ALJ’s denial of disability benefits be and is AFFIRMED.

IT IS FINALLY ORDERED that judgment be and is entered for the defendant and against the plaintiff in this cause of action.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

FREDERICK R. BUCKLES, United States Magistrate Judge.

This matter is on appeal for review of an adverse ruling by the Social Security Administration. All pretrial matters were referred to the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b), for appropriate disposition.

I. Procedural Background

On September 22, 2008, plaintiff Johanna K. Nishke (“plaintiff’) applied for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”), alleging disability as of June 1, 2007. (Administrative Transcript (“Tr.”) at 124-30). Plaintiffs applications were initially denied, (Tr. 74-81), and she requested a hearing before an administrative law judge (“ALJ”). (Tr. 82). On January 21, 2010, plaintiff amended her alleged onset date to September 6, 2008. (Tr. 148). On February 11, 2010, a hearing was held before an ALJ. (Tr. 24-72). On May 12, 2010, the ALJ issued a decision denying plaintiffs applications. (Tr. 4-16).

Plaintiff subsequently requested review of the ALJ’s hearing decision with defendant agency’s Appeals Council, which denied plaintiffs request for review on April 28, 2011. (Tr. 1-3). The ALJ’s decision thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).

II. Evidence Before the ALJ

A. Plaintiffs Testimony

During the administrative hearing, plaintiff was represented by counsel. Plaintiff testified that she was 31 years of age, had never married, had no children, and lived by herself in a duplex. (Tr. 28-29). Plaintiff attended regular classes while in high school, graduated, and attended college for medical assisting, but did not complete an associate’s degree. (Tr. 30). She testified that she could read and write and perform basic arithmetic. (Tr. 32). Plaintiff receives food stamps and Medicaid. (Tr. 33).

Plaintiff testified regarding her past work experience. Plaintiff has worked as a general office clerk, customer service clerk, courier, data entry clerk, order picker, fast food cashier, waitress, retail cashier, production, daycare worker, packager, medical assistant/aide, receptionist, convenience store clerk, night manager, medical records clerk, housekeeper, caterer [967]*967helper, fast food worker, administrative assistant, and. grocery cashier. (Tr. 34-44; 67-68).

Plaintiff testified that she was diagnosed with bipolar disorder at age 21 and sought treatment, but stopped treatment at age 23. (Tr. 48). Plaintiff testified that her bipolar disorder “came back tenfold,” and that she now took Lithium,1 Ability,2 and Trazodone,3 as well as medication for anxiety, acid reflux, and high cholesterol. (Tr. 49-50).

Plaintiff testified that her bipolar disorder and anxiety prevented her from working. (Tr. 52). She testified that her anxiety caused nervousness, chest pains, nausea, irritation, and rage, and that her medications caused the side effects of thinning hair, worsening vision, and skin problems. (Id.) Plaintiff testified that she began cutting herself at age 9, and that she did so because voices told her to or to relieve stress. (Id.) Plaintiff testified that she had been, diagnosed with bipolar disorder at age 21, but that she had suffered from the symptoms of bipolar disorder since childhood and had been able to graduate from high school and work a number of jobs for many years.

Plaintiff testified that she owned a dog and took care of feeding and providing water for it,- but that her mother provided the rest of its care. (Tr. 53-54). She testified that she cooked only microwave food, and that her mother had turned off the gas to her stove because plaintiff tended to forget things on the stove or heard voices telling her to hurt herself. (Tr.

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Cite This Page — Counsel Stack

Bluebook (online)
878 F. Supp. 2d 958, 2012 WL 2415538, 2012 U.S. Dist. LEXIS 88115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nishke-v-astrue-moed-2012.