Phelps v. Social Security Administration

Filing 13

ORDER affirming the decision of the Commissioner. The case is dismissed, with prejudice. Signed by Magistrate Judge Jerome T. Kearney on 12/22/2016. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
JAMES J. PHELPS
V.

PLAINTIFF
CASE NO. 3:15-CV-00348 JTK

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION

DEFENDANT

ORDER
I. Introduction:
Plaintiff, James J. Phelps, applied for disability benefits on November 6, 2012, alleging a
disability onset date of August 15, 2012.

(Tr. at 10).

After conducting a hearing, the

Administrative Law Judge (“ALJ”) denied his application. (Tr. at 19). The Appeals Council denied
his request for review. (Tr. at 1). The ALJ’s decision now stands as the final decision of the
Commissioner, and Phelps has requested judicial review.
For the reasons stated below, the Court1 affirms the decision of the Commissioner.
II. The Commissioner’s Decision:
The ALJ found that Phelps had not engaged in substantial gainful activity since the onset
date of August 15, 2012. (Tr. at 12). The ALJ found at Step Two that Phelps had the following
severe impairments: osteoarthristis, degenerative disc disease, asthma, headaches, and obesity. Id.
At Step Three, the ALJ determined that Phelps’s impairments did not meet or equal a listed
impairment. (Tr. at 14). Before proceeding to Step Four, the ALJ determined that Phelps had the
residual functional capacity (“RFC”) to perform the sedentary work with the following restrictions:

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Judge.

The parties have consented in writing to the jurisdiction of a United States Magistrate

1) only occasional climbing of stairs, balancing, stooping, kneeling, crouching, and crawling; 2) no
climbing of ladders; 3) occasional overhead reaching; 4) must avoid concentrated exposure to dust,
fumes, gases, odors, smoke, and poor ventilation; and 5) cannot work without the use of a cane. Id.
Next, the ALJ found that Phelps is not capable of performing past relevant work. (Tr. at 17). At
Step Five, the ALJ relied on the testimony of a Vocational Expert ("VE") to find that, based on
Phelps's age, education, work experience and RFC, jobs existed in significant numbers in the
national economy that he could perform at the sedentary level, specifically, dispatcher and cashier
I. (Tr. at 19). Based on that Step Five determination, the ALJ held that Phelps was not disabled.
Id.
III. Discussion:
A. Standard of Review
The Court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). “Substantial evidence”
in this context means less than a preponderance but more than a scintilla. Slusser v. Astrue, 557 F.3d
923, 925 (8th Cir. 2009). In other words, it is “enough that a reasonable mind would find it adequate
to support the ALJ’s decision.” Id. (citation omitted). The Court must consider not only evidence
that supports the Commissioner’s decision, but also evidence that supports a contrary outcome. The
Court cannot reverse the decision, however, “merely because substantial evidence exists for the
opposite decision.” Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (quoting Johnson v. Chater,
87 F.3d 1015, 1017 (8th Cir. 1996)).
B. Phelps’s Arguments on Appeal
Phelps argues that substantial evidence does not support the ALJ’s decision to deny benefits.

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He contends that: 1) Phelps met listings 1.02 and 1.04; 2) the ALJ erred in assigning Phelps’s RFC;
and 3) the ALJ did not pose a proper hypothetical to the VE. For the following reasons, the Court
finds that substantial evidence supports the ALJ’s decision.
Phelps had two surgeries in 2010 to repair his left knee, including a total left knee
replacement on September 15, 2010. (Tr. at 321-322, 324). At a September 28, 2010 follow-up
appointment with Dr. Ron Schechter, M.D., an orthopedist at Paragould Orthopaedics, Dr. Schechter
reported that Phelps was “doing fine” post-surgery and that he was making adequate progress with
physical therapy on the knee. (Tr. at 307). On October 26, 2010, Phelps reported to Dr. Schechter
that he was “doing better” with little to no pain, and that he was “very pleased with [the] results of
surgery.” (Tr. at 305). He was walking well, with no limp. Id. Dr. Schechter noted that Phelps
could return to full duty work when he was ready. Id. Phelps returned to work as a welder until
August 2012 (Tr. at 210-211).
Phelps testified that he has had multiple steroid injections in both knees, with little efficacy.
(Tr. at 43). He added that he walks with a cane. Id. Phelps stated that Dr. Stacy Noel, M.D., his
PCP, told him to keep his legs elevated to minimize swelling. Id. In April 2013, x-rays of Phelps’s
right knee and left hip were unremarkable. (Tr. at 535-537).
On May 24, 2011, Phelps saw Dr. Tory Stallcup, M.D., at Family Practice Clinic of
Paragould. (Tr. at 448). He reported that his depression was better, but that he had some “minor”
issues, including anxiety and panic attacks that were increasing. Id. Dr. Stallcup prescribed
buspirone for anxiety and clonazepam for sleep. Id. He recommended that Phelps seek counseling.
Id. Phelps did not seek counseling.
On July 13, 2012, Phelps saw Dr. Noel for anxiety, after he had apparently stopped taking

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his clonazepam. (Tr. at 427). Dr. Noel started him back on Lexapro and clonazepam, and he
continued taking buspirone. Id. Phelps denied suicidal or homicidal thoughts, and said he was
“resting well.” (Tr. at 428). On July 10, 2013, Dr. Noel noted a positive response to anxiety
medications. (Tr. at 553).
There is no record of Phelps seeking mental health treatment at any time, in spite of his
doctors’ recommendation. He indicated he worked after the recommendation for mental health
treatment. (Tr. at 37).

Phelps also testified that he had not pursued psychiatric treatment for

anxiety, his alleged disabling impairment. Id.
In September 2012, an MRI of Phelps’s cervical spine revealed disc herniations at C3-C4
and C6-C7 with acquired spinal stenosis. (Tr. at 330-331). The MRI also showed straightening of
the normal lordatic curvature of the cervical spine. Id. On October 15, 2012, Phelps saw a
neurologist, Dr. Rebecca Barrett-Tuck, at the NEA Baptist Neurosurgery Clinic. She noted normal
gait and station, normal muscle strength, and normal muscle tone, with no atrophy or plasticity. (Tr.
at 381). Dr. Barrett-Tuck found disc abnormalities at C3-C4 and C6-C7. She recommended surgery
but she advised that surgery up the entire neck to fix C3 through C7 was inadvisable. Id.
On October 25, 2012, Dr. Barrett-Tuck performed a diskectomy and fusion surgery on C6C7. (Tr. at 359). The day after surgery, Phelps was able to ambulate, chew, and swallow without
difficulty. (Tr. at 371). He had improved significantly. Id.

Phelps was discharged home on

October 26, 2012 in “good condition.” Id. Dr. Barrett-Tuck recommended he return for a second
cervical surgery if needed. (Tr. at 382). He did not pursue a second surgery. (Tr. at 40).
On December 18, 2012, Phelps returned to the Baptist Neurosurgery Clinic for a postoperative appointment. (Tr. at 401). X-rays showed good alignment and appropriate placement of

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hardware, with no acute spine bony abnormality. Id., (Tr. at 403). He denied pain, numbness, or
tingling, but he reported headaches and bilateral shoulder pain. Id. APN Starla Emery found good
strength in his bilateral upper arms and normal reflexes in the upper extremities. Id. Phelps said he
was taking Hydrocodone for pain. Id. Phelps told Ms. Emery that he had resumed his normal
activities without any difficulty. Id.
Indeed, in Phelps’s March 2013 Function Report, he stated he prepared meals, fed his dog,
had no problems with personal care, did some cleaning, laundry, and dishes, drove, and shopped.
(Tr. at 256-258). The ability to perform such daily activities, especially after a total knee
replacement and a major neck surgery, undermine Phelps’s claims of disability. See Shannon v.
Chater, 54 F.3d 484, 487 (8th Cir. 1995); Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003).
An MRI of Phelps’s lumbar spine on February 5, 2014 revealed degenerative changes with
some disc herniation but no spinal stenosis. (Tr. at 584). Phelps did not seek physical therapy, a
pain management specialist, or surgery for his lumbar spine.

Overall, his treatment was

conservative.
Phelps claims that osteoarthritis and pain in his shoulders are disabling and would prevent
any overhead reaching in a work setting. Phelps’s attorney’s attempt to summarize the records
pertinent to his shoulders could be construed as misleading, as he attributes the opinions of Dr. Stacy
Noel, Phelps’s PCP, to that of Dr. Ron Schechter, the orthopedist at Paragould Orthopaedics.
(Docket No. 10 at 8). The opinions of a specialist would carry more weight than that of a PCP, so
the distinction is important. The Court assumes Phelps’s attorney’s mischaracterization of medical
records is unintentional, but it requires untangling to evaluate the extent of the shoulder impairment.
Dr. Schechter saw Phelps on February 18, 2010 (Phelps’s attorney incorrectly dated the visit

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April 18, 2010; No. 10 at 8). (Tr. at 315). Phelps reported his knee was doing well after the first
surgery, but complained of waxing and waning shoulder pain over the last decade, which was not
severe enough to seek medical attention. Id. He told Dr. Schechter that in the last 2-3 years, as the
shoulder pain increased, he began receiving steroidal injections from Dr. Noel. Id. He initially
experienced relief but the injections stopped helping. Id. Pain medications did not give relief, and
the pain radiated down the arms and caused occasional numbness and tingling. Id. Overhead
reaching made the pain worse. Id. Dr. Schechter read x-rays that showed moderate degenerative
changes but otherwise normal findings. (Tr. at 316).
Dr. Schechter diagnosed subacromial impingement in both shoulders and symptoms
suggestive of right bicep tendinitis. Id. With radiating shoulder pain, Dr. Schechter did not rule out
a rotator cuff tear or neuropathy/radiculopathy. Id. He recommended an MRI and physical therapy
for the shoulders but Phelps did not pursue those courses. Id., (Tr. at 37).
Phelps’s attorney attributed August 28, 2012 and November 14, 2012 appointments with Dr.
Noel to “Plaintiff’s orthopedic” (No. 10 at 8). On August 28, 2012, Phelps complained to Dr. Noel
of shoulder pain shooting down both shoulder blades, in spite of steroid injections the week before
(Tr. at 420, 423). Phelps requested to be off work. (Tr. at 420). Dr. Noel excused Phelps from work
for a week. Id. He continued taking Tramadol and Lortab for pain. Id.
On November 14, 2012, Dr. Noel noted pain and arthritis in both shoulders. (Tr. at 414).
Dr. Noel (not Dr. Schechter, as Phelps’s attorney indicated) diagnosed polyarthropy and said Phelps
was not able to work. (Doc. No. 10 at 8, Tr. at 414). She noted he had an interview for disability
benefits the next day. (Tr. at 415).
At his October 15, 2012 visit to Dr. Barrett-Tuck, Phelps complained of shoulder pain that

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increased with activity, and stated that he had associated migraine headaches. (Tr. at 355). Dr.
Barrett-Tuck did not conduct any objective medical imaging on his shoulders to confirm Phelps’s
subjective complaints of pain. Additionally, he said his migraines were improving as of the hearing
date. (Tr. at 16). Moreover, upon examination, Dr. Barrett-Tuck found intact arm strength, good
posture, and normal gait. (Tr. at 357).
Phelps’s complaints of serious shoulder pain are undermined by the normal musculoskeletal
and upper extremity exam conducted by APN Starla Emery on December 18, 2012. (Tr. at 401;
supra at 4). At that time, he stated he was doing well and had resumed normal activities. Id.
Dr. Noel completed a check-box Medical Source statement on February 28, 2014. (Tr. at
586). She indicated debilitating arthritis in Phelps’s shoulders and knees. She stated he could lift
less than 10 pounds occasionally and could sit, stand, and walk for a maximum of two hours each
in an 8 hour workday.

Id.

Dr. Noel indicated that he would need all possible postural

accommodations at work, including ability to change positions, elevate his feet, and take longer than
normal breaks. Id. She said he could never reach (including overhead), finger, or handle, and that
he had to walk with a cane. Id. Dr. Noel did not refer to any objective testing in her opinion. Id.
The ALJ correctly discounted Dr. Noel’s check-box opinion that Phelps would be unable to
perform even sedentary work. A conclusory check-box form has little evidentiary value when it
cites to no medical evidence and provides little or no elaboration. Anderson v. Astrue, 696 F.3d 790,
794 (8th Cir. 2012); Juszczyk v. Astrue, 542 F.3d 626, 632 (8th Cir. 2008)(finding that the ALJ
properly rejected a physician’s assessment where it was inconsistent with the objective medical
evidence and other evidence in the record).
Objective testing by Phelps’s doctors after both knee and neck surgeries revealed the

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surgeries were successful and he could resume his daily activities and return to work. His daily
activities of preparing meals, doing chores, driving, shopping, attending to personal care, and
feeding his dog indicate that his conditions are not as disabling as alleged. (Tr. at 256-258). While
Phelps did take narcotics and he received steroid injections, he did not seek a pain management
specialist, or pursue the recommended physical therapy for his conditions (other than for his knee,
which improved after the surgery). And Phelps admitted that he had not followed up with Dr.
Barrett-Tuck about further cervical surgery. (Tr. at 40). See Edwards v. Barnhart, 314 F.3d 964,
967 (8th Cir. 2003) (failure to seek regular and available medical treatment undermines claim of
disabling pain).
As for Phelps’s listing argument, the ALJ did not err in finding he did not meet listing 1.02
(dysfunction of a joint) or 1.04 (disorders of the spine). 20 C.F.R. Pt. 404, Subpt. P, App 1 § 1.02,
1.04. The listings define impairments that would prevent an adult, regardless of his age, education,
or work experience, from performing any gainful activity, not just “substantial gainful activity.” .
. That is, if an adult is not actually working and his impairment matches or is equivalent to a listed
impairment, he is presumed unable to work and is awarded benefits without a determination whether
he actually can perform his own prior work or other work. Sullivan v. Zebley, 493 U.S. 521, 532
(1990) (internal citations omitted). To meet a listing, an impairment must meet all of the listing’s
specified criteria. Carlson v. Astrue, 604 F.3d 589, 593 (8th Cir. 2010). The claimant has the
burden of showing he met a listing. See King v. Astrue, 564 F.3d 978, 979 (8th Cir. 2009(burden
of proving disability rests with claimant through Step Four of the sequential evaluation process).
Listing 1.02 requires at a minimum gross anatomical deformity of a joint and joint pain with
stiffness, as well as objective evidence of joint space narrowing, bony destruction, or ankylosis of

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affected joints. 20 C.F.R. Pt. 404, Subpt. P, App 1, § 1.02. Additionally, paragraphs A or B must
be met. Paragraph A requires the inability to ambulate effectively due to involvement of the hip,
knee, or ankle. Paragraph B requires inability to perform fine and gross movements effectively due
to the involvement of one major joint in each upper extremity. Id.
Phelps cites Dr. Noel’s Medical Source Statement to argue he met these requirements with
respect to his shoulders and knees. (No. 10 at 12). This argument fails. First, his knee surgery was
a success and he could perform daily activities requiring ambulation with the help of a cane.
Second, the conclusions reached by Dr. Noel with respect to his shoulders were not supported by
evidence from specialists, and she did not reference any of her own objective testing. The only
diagnosis of shoulder impingement was from Dr. Schechter in 2010, and thereafter the record only
reflects subjective complaints of shoulder pain from Phelps, not clinical testing. Again, in light of
only conservative treatment and reports of normal musculoskeletal exams, Dr. Noel’s conclusory
opinions do not merit great weight. The statements of a treating physician may be discounted if
they are inconsistent with the overall assessment of the physician or the opinions of other physicians,
especially where those opinions are supported by more or better medical evidence. Prosch v. Apfel,
201 F.3d 1010, 1013-14 (8th Cir. 2000); see House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007)(an
ALJ is not required to give controlling weight to the opinion of a treating physician if the opinion
is inconsistent with other substantial evidence in the record).
For the same reasons, there is support for the ALJ’s decision that Phelps did not meet listing
1.04 (disorders of the spine). That listing requires a spinal disorder, along with nerve root
compression, sensory loss, and straight-leg raise; or spinal arachnoiditis requiring the need for
changing positions every two hours; or lumbar spinal stenosis resulting in pseudoclaudication,

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chronic radicular pain, and the inability to ambulate effectively. 20 C.F.R. Pt. 404, Subpt. P, App
1 § 1.04. Phelps did not have sensory loss, straight-leg raise, spinal arachnoiditis, or lumbar spinal
stenosis resulting in pseudoclaudication. Doctors noted marked improvement and range of motion
in Phelps’s cervical spine after his surgery, and urged him to resume normal activities, which he did.
Moreover, Dr. Noel did not mention Phelps’s spine in her Medical Source Statement, so even his
PCP found no apparent limitation with respect to his back. (Tr. 586).

The medical evidence

supports the ALJ’s listings determination.
Phelps’s argument that substantial evidence does not support the ALJ’s RFC determination
fails for the same reasons his listings argument fails. A claimant's RFC represents the most he can
do despite the combined effects of all of his limitations and must be based on all credible evidence.
McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011). In determining the claimant's [RFC], the ALJ
has a duty to establish, by competent medical evidence, the physical and mental activity that the
claimant can perform in a work setting, after giving appropriate consideration to all of [his]
impairments. Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996); Wildman v. Astrue, 596 F.3d
959, 969 (8th Cir. 2010). The ALJ must consider all of the evidence in the record when determining
an RFC, including medical records, observations of treating physicians and others, and the claimant's
own description of his limitations. Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004).
Upon weighing the objective medical evidence, and granting little weight to Dr. Noel’s
opinions for valid reasons, the ALJ assigned an RFC with several physical limitations reflective of
Phelps’s impairments. The RFC in this case included the restriction to sedentary work as well as
postural limitations; it also allowed for the use of a cane on the job. (Tr. at 14). An ALJ’s
restriction to sedentary work is itself a significant limitation. Ellis v. Barnhart, 392 F.3d 988, 994

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(8th Cir. 2005). Considering the evidence as a whole, including medical records, physicians’
observations, and Phelps’s subjective statements about his capabilities, the ALJ properly evaluated
Phelps’s physical impairments in assigning the RFC. See Eichelberger v. Barnhart, 390 F.3d 584,
591 (8th Cir. 2004).
As for Phelps’s anxiety, the evidence in the record does not show that the ALJ should have
added mental restrictions to the RFC. In a July 2013 record, Dr. Noel noted that from a
psychological standpoint, Phelps was doing well. (Tr. at 553). Phelps testified that his medications
helped slow down his panic attacks. (Tr. at 45-46). An impairment that can be controlled by
treatment or medication is not considered disabling. Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir.
2002). Phelps did not seek any mental health treatment and only his PCP prescribed his psychiatric
medications. Moreover, Phelps’s neurologist, Dr. Barrett-Tuck, found in October 2012 that Phelps
had normal memory, normal thought process, and normal attention span. (Tr. at 357). The ALJ
properly considered Phelps’s lack of treatment by any mental health professional in finding that
anxiety had no more than a minimal effect on his ability to perform basic work activities. (Tr. at
13); see Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007).
Finally, Phelps argues that the hypothetical the ALJ proposed to the VE was incomplete
because it did not include limitations based on: 1) anxiety; 2) the need to elevate his legs throughout
the day; and 3) shoulder pain. This argument dovetails with the RFC argument, and likewise fails.
For the reasons stated above, the ALJ did not need to include mental limitations, based on
anxiety, in the hypothetical. Next, Phelps does not point to any objective medical evidence that
would require him to elevate his legs throughout the day (Dr. Noel suggested that in her overly
restrictive Medical Source Statement, which was properly discounted). Haggard v. Apfel, 175 F.3d

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591, 595 (8th Cir. 1999)(an ALJ need not include additional complaints in the hypothetical not
supported by substantial evidence). And third, the postural limitations the ALJ included in the
hypothetical adequately reflected the impact of shoulder pain on Phelps’s ability to use his arms for
overhead reaching. Dr. Barrett-Tuck found good strength in his bilateral upper arms, and Phelps’s
activities suggest he is able to do some overhead reaching. (Tr. at 401). A hypothetical is sufficient
if it sets forth limitations supported by substantial evidence in the record and accepted as true by the
ALJ. See Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001).
IV. Conclusion:
There is substantial evidence to support the Commissioner’s decision to deny benefits. The
ALJ properly assessed Phelps’s conditions based on the evidence in the record as a whole; he made
a proper determination on the listings and the RFC, and the hypothetical posed to the VE was
reflective of Phelps’s actual limitations. The finding that Phelps was not disabled within the
meaning of the Social Security Act, therefore, must be, and hereby is affirmed. The case is
dismissed, with prejudice.
IT IS SO ORDERED this 22nd day of December, 2016.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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