Thompson v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on August 1, 2011. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DEMETRIA R. THOMPSON
MISHAEL J. ASTRUE, Commissioner
of Social Security Administration
Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision
of the Commissioner of Social Security Administration (Commissioner) denying his claim for a
period of disability and disability insurance benefits (DIB) under Title II of the Social Security
Act (Act), 42 U.S.C. § 423(d)(1)(A). In this judicial review, the court must determine whether
there is substantial evidence in the administrative record to support the Commissioner’s decision.
See 42 U.S.C. § 405(g).
I. Procedural Background:
On January 23, 2008, Plaintiff protectively filed an application for supplemental security
income benefits (Tr. 91-93, 106). Plaintiff alleged disability beginning January 23, 2008, due to
back, neck, knee, and ankle problems (Tr. 91, 110). She reported that her impairments limited
her ability to work because she could not stand or sit for very long (Tr. 110). Plaintiff was 24
years old when she applied for benefits (Tr. 91, 106). She completed the 11th grade and has past
work experience as a waitress (Tr. 111, 116). She reported that she stopped working when her
employer laid her off on October 31, 2007 (Tr. 110).
On November 4, 2009, the ALJ issued a decision finding Plaintiff not disabled (Tr. 3743). The ALJ found that Plaintiff had severe impairments, including a right carotid artery
aneurysm and migraine headaches, but did not have an impairment or combination of
impairments that met or equaled a listing (Tr. 39). After carefully considering the entire record,
the ALJ determined that Plaintiff retained the residual functional capacity to perform unskilled
sedentary work (Tr. 39). He concluded that Plaintiff’s medically determinable impairments
could reasonably be expected to produce her alleged symptoms, but that Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of her symptoms were not entirely
credible (Tr. 40).
The ALJ found that Plaintiff had no past relevant work, but noted that MedicalVocational Guideline (Grid) rule 201.24 directed a finding of “not disabled” for someone with
Plaintiff’s vocational profile who had the residual functional capacity to perform the full range of
sedentary work (Tr. 41-42). See 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.24. Because
Plaintiff’s limitation to unskilled work did not substantially erode the occupational base of
sedentary unskilled work, the ALJ concluded that a finding of “not disabled” was appropriate
under the framework of Grid rule 201.24 (Tr. 42). Id. Accordingly, the ALJ found that Plaintiff
was not disabled from January 23, 2008, her alleged onset date, through November 4, 2009, the
date of his decision (Tr. 42). After the Appeals Council denied Plaintiff’s request for review, the
ALJ’s decision became the Commissioner’s final decision, which Plaintiff now appeals (Tr. 1-3).
II. Applicable Law:
This court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider
evidence in the record that fairly detracts from that decision.” Id. As long as there is substantial
evidence in the record to support the Commissioner’s decision, the court may not reverse the
decision simply because substantial evidence exists in the record to support a contrary outcome,
or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742,
747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent positions from the
evidence, and one of those positions represents the Secretary’s findings, the court must affirm the
decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A).
The Act defines “physical or mental impairment” as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § § 423(d)(3), 1382(3)(c). A plaintiff
must show that his disability, not simply his impairment, has lasted for at least twelve
consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. § § 404.1520(a)- (f)(2003).
Only if the final stage is reached does the fact finder consider the plaintiff’s age, education, and
work experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
A. Residual Functional Capacity:
The ALJ determined that the Plaintiff had the “residual functional capacity to perform
unskilled, sedentary work as defined in 20 CFR 416.967(a) and 416.968(a). The regulations
define “unskilled work” as “work which needs little or no judgment to do simple duties that can
be learned on the job in a short period of time.” 20 C.F.R. §§ 404.1568(a), 416.968(a).
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking and standing is often necessary when
carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met. 20 C.F.R. §§ 404.1567(a) and 416.967(a).
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a) (1). It is assessed using all relevant evidence in the record. Id. This includes
medical records, observations of treating physicians and others, and the claimant’s own
descriptions of her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005);
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from
symptoms such as pain are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3). The
United States Court of Appeals for the Eighth Circuit has held that a “claimant’s residual
functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001).
Therefore, an ALJ’s determination concerning a claimant’s RFC must be supported by medical
evidence that addresses the claimant’s ability to function in the workplace.” Lewis v. Barnhart,
353 F.3d 642, 646 (8th Cir. 2003).
1. Neck, Back and Leg and Ankle Pain:
The court notes first that in the Initial Disability Report the Plaintiff indicated that she
was unable to work because of back, neck, knee, and ankle problems. She stated that “I can’t
stand up too long because my feet and knees start hurting. I can’t sit for very long either. If I sit
very long my back and my neck will start bothering me.” (T. 110). In her Function Report
completed March 12, 2008 the Plaintiff stated that her injuries affected her ability to lift, stand,
walk, sit, climb stairs, kneel, squat, reach, use her hands, see, and bend. She also stated that it
affected her memory, concentration, and ability to complete tasks. (T. 125).
The Plaintiff was in a car accident in September 24, 1998. She presented to Dr. Alberty
on October 8, 1998 and he noted that she had mild swelling around her knee but there was no
ligamentous laxity, no effusion. Low back action was symmetrical and her heel and toe walk
was normal. Dr. Alberty noted that there was no evidence of permanent problem. (T. 158). Dr.
Alberty saw the Plaintiff on October 15 and October 23 for follow up visits. She does not appear
to have been treated for these injuries subsequently. In general, the failure to obtain follow-up
treatment indicates that a person's condition may not be disabling or may not be as serious as
alleged. See Shannon v. Chater, 54 F.3d 484, 487 (8th Cir.1995) (holding “[g]iven his alleged
pain, Shannon's failure to seek medical treatment may be inconsistent with a finding of
disability”). There is no evidence that this accident affected the Plaintiff’s ability to work or had
any impact upon her physically.
The Plaintiff visited the SEMMC ER on November 23, 2004 complaining of “chronic
pain in the back area as well as vague pain in the knee and a headache”. Her primary complaint
was her back pain. Dr. Nelson noted that her “deep tendon reflexes were equal bilaterally” and
that she had “negative straight leg 1 raising bilaterally”. (T. 276).
The Plaintiff was involved in another motor vehicle accident in April 2005 and was
treated by Dr. N. Van Hoang. She complained of pain in her left leg, left knee, lower back and
neck. (T. 231). She was treated by Dr. Hoang until January 2006. It does not appear that the
Plaintiff sought any treatment for her injuries after her January 2006 visit. See Shannon v.
Chater, 54 F.3d 484, 487 (8th Cir.1995). Dr. Hoang performed a General Physical Examination
on the Plaintiff on July 21, 2008 and found that she had a normal range of motion (T. 220) with
no neurological deficits, no muscle atrophy, normal gait and no deficits in limb function. (T.
221). He diagnosed her with chronic daily headaches and chronic neck, knee, hip and back pain
but, significantly, felt that she had “mild physical limitations for work”. (T. 222).
The Straight leg raise, also called Lasègue's sign, Lasègue test or Lazarevic's sign, is a
test done during the physical examination to determine whether a patient with low back pain has
an underlying herniated disk, mostly located at L5 (fifth lumbar spinal nerve), S1 (the first sacral
spinal nerve) or S2 (the second sacral spinal nerve). (See http://en.wikipedia.org Viewed July
When the Plaintiff was seen at the University of Arkansas Medical Services Women’s
Health Center on November 25, 2008 concerning the delivery of her third child the Plaintiff
denied that she had any back pain, joint pain, joint swelling, muscle cramps, muscle weakness,
stiffness or arthritis. An extremity evaluation noted normal alignment, no joint enlargement,
crepitus, masses or tenderness and normal tone and strength. (T. 362).
There is no medical objective evidence to account for the Plaintiff’s allegations of
disabling pain in connection with her back, leg, knee or ankle.
2. Cerebral aneurysm:
The Plaintiff made no allegation in her application for benefits that she was unable to
work because of her headaches. (T. 110). The fact that the plaintiff did not allege headaches as a
basis for her disability in her application for disability benefits is significant, even if the evidence
of headaches was later developed. See Smith v. Shalala, 987 F.2d 1371, 1375 (8th Cir.1993);
Dunahoo v. Apfel, 241, F. 3d 1033, 1039 (8th Cir. 2001).
The only allegations the Plaintiff made at the hearing is that she could not work because
of pain. The presence of pain however does not disqualify an individual from working. See Craig
v. Apfel, 212 F.3d 433, 436 (8th Cir.2000) (holding that mere fact that working may cause pain or
discomfort does not mandate a finding of disability); Woolf v. Shalala, 3 F.3d at 1213 (holding
that, although plaintiff did have degenerative disease of the lumbar spine, the evidence did not
support a finding of disabled). The issue of a subjective complaint of pain becomes one of
credibility for the ALJ.
The ALJ determined that the Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the Plaintiff’s statements
concerning the intensity, persistence and limiting effect of these symptoms are not credible to the
extent they are inconsistent with the RFC. (T. 40)
The Plaintiff made numerous complaints of subjective pain. An ALJ may not disregard a
claimant's subjective complaints solely because the objective medical evidence does not fully
support them. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The ALJ is required
to take into account the following factors in evaluating the credibility of a claimant's subjective
complaints: (1) the claimant's daily activities; (2) the duration, frequency, and intensity of the
pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating
factors; and (5) functional restrictions. See id. The ALJ must make express credibility
determinations and set forth the inconsistencies in the record which cause him to reject the
plaintiff's complaints. Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir.2004). However, the
ALJ need not explicitly discuss each Polaski factor. Strongson v. Barnhart, 361 F.3d 1066, 1072
(8th Cir.2004). The ALJ only need acknowledge and consider those factors before discounting a
claimant's subjective complaints. Id. In the present case, the ALJ did discuss the factors in his
credibility assessment of plaintiff.
(1) the claimant's daily activities;
The Plaintiff stated in her Function Report dated March 12, 2008 that she took care of her
children (T. 120) with help; that she had no problem with personal care but did list some
difficulties (T. 121); that she could cook or eat out; that she did the ironing and would clean her
room with help (T. 122); and that she could drive, ride and shop. (T. 123). These activities do
not support plaintiff’s claim of disability. See Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996)
(ability to care for one child, occasionally drive, and sometimes go to the store); Nguyen v.
Chater, 75 F.3d 429, 430-31 (8th Cir. 1996) (ability to visit neighbors, cook, do laundry, and
attend church); Novotny v. Chater, 72 F.3d at 671 (ability to carry out garbage, carry grocery
bags, and drive); Johnston v. Shalala, 42 F.3d 448, 451 (8th Cir. 1994) (claimant’s ability to
read, watch television, and drive indicated his pain did not interfere with his ability to
concentrate); Woolf v. Shalala, 3 F.3d 1210, 1213-1214 (8th Cir. 1993) (ability to live alone,
drive, grocery shop, and perform housework with some help from a neighbor).
(2) the duration, frequency, and intensity of the pain;
The Plaintiff testified that she had chronic headaches since 2001 (T. 27) when she was
diagnosed with an ICA aneurysm (T. 187) . Dr. Myers ordered a Brain MRA which was
performed on April 9, 2008 which noted the presence of a right ICA aneurysm but that it was
“not appreciably changed from old MRA of 2001". (T. 298, 292). When the Plaintiff was
admitted to UAMS on April 4, 2009 for the delivery of her third child a brain scan did show that
the aneurysm had increased in size. (T. 321).
The Plaintiff also testified that she had trouble stooping, bending and kneeling, and
trouble with her back and that her knees “sometimes” feel like the are going to go out. (T. 28).
She testified that she had trouble sitting and that she had to constantly move her neck. (Id.).
It is significant that the Plaintiff treated with Dr. Hoang in 2005 for neck, back and leg
pain as a result of an automobile accident but during the 7 months of treatment with Dr. Hoang
she never once complained of or sought treatment or medication for headaches. In general, the
failure to obtain follow-up treatment indicates that a person's condition may not be disabling or
may not be as serious as alleged. See Shannon v. Chater, 54 F.3d 484, 487 (8th Cir.1995)
(holding “[g]iven his alleged pain, Shannon's failure to seek medical treatment may be
inconsistent with a finding of disability”).
On November 25, 2008 at UAMS Women’s Health Center the Musculoskeletal exam
noted the Plaintiff “Denies back pain, joint pain, joint swelling, muscle cramps, muscle
weakness, stiffness, arthritis”. The Examination of her extremities showed normal alignment, no
joint enlargement, crepitus, masses or tenderness and normal tone and strength. (T. 362). None
of the medical records from UAMS disclose that the Plaintiff ever complained of back pain, neck
pain or knee pain and only reference her headaches. (T. 308-378).
(3) dosage, effectiveness, and side effects of medication;
The Plaintiff testified on June 16, 2009 that she took Lorcet and Soma for chronic pain
four times per day. (T. 18). Dr. Meyers medical records discloses that he prescribed Lorcet for
the Plaintiff during his treatment. (T. 279-307). The court notes that the Plaintiff did not begin
to treat with Dr. Meyers until February 13, 2008 (T. 301) just after the Plaintiff had filed her
disability claim on January 31, 2008. (T. 91).
In her Disability Report completed March 12, 2008 the Plaintiff represented that she was
not on any medication (T. 115) but did state she was taking Lorcet and Soma for other
symptoms. (T. 119). The Plaintiff was first prescribed Lorecet on April 3, 2004 when she was
admitted to Sparks ER for migraine and menstrual cramps. (T. 161). The Plaintiff was not seen
again until March 2005 at the Sparks ER for a migraine and lower extremity pain and she was
again prescribed Lorecet. (T. 169). The Plaintiff was seen in Sparks ER in March 2005 for a
spider bit but no headaches were reported and it does not appear that any pain medication was
prescribed. (T. 174). The Plaintiff was prescribed Lorecet by Dr. Hoang in April 2005 for neck,
back and knee pain. (T. 231). She never made any complaint to Dr. Hoang concerning headaches
nor does it appear that she sought treatment or medication after terminating treatment by Dr.
Hoang until she saw Dr. Meyers in March 2008.
On August 19, 2008 a UAMS Outpatient Note shows that the Plaintiff stated that she had
a headache every day but had never had any “acute severe headache” and she listed her current
medication as “Lorcet p.r.n.”. That same report shows that she was being treated conservatively
by her treating neurosurgeon and that the Plaintiff was not interested in having surgery to correct
her problem. (T. 372). “The ALJ may properly consider both the claimant's willingness to
submit to treatment and the type of medication prescribed in order to determine the sincerity of
the claimant's allegations of pain.” Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir.1991)
(citations omitted); Gray v. Apfel, 192 F.3d 799, 804 (C.A.8 (S.D.),1999).
The court also notes that a UAMS medical report dated April 4, 2009 indicated that the
Plaintiff’s current medication consisted only of Tylenol and PNV (prenatal multivitamins). (T.
317) and on April 6, 2009 the only medication was her PNV. (T. 321).
(4) precipitating and aggravating factors;
The Plaintiff had a MR Brain scan performed on February 12, 2001 as a result of fatigue
and seizures (T. 185). The exam showed a suspected aneurysm arising from the distal right
internal carotid artery (Id.) which was confirmed on April 18, 2001 as a result of an Intracranial
MRA. (T. 187). The Plaintiff saw Dr. Capocelli, M.D. on June 29, 2001 complaining of
headache which worsened after an automobile accident in 1998. She had previously been placed
on Nortriptyline 2 which did not help. (T. 196). It appears that the Plaintiff next saw Dr.
Capocelli on July 11, 2008 for a “routine follow-up on her aneurysm”. At that time Dr.
Capocelli noted that he had recommended cerebral angiography but that she never showed up for
that. He noted that the Plaintiff was not opting for surgical intervention but showed some
interest in less invasive techniques. (T. 195).
On August 19, 2008 the Plaintiff stated that she “never had any acute severe headache
that would cause her to think that she had had any kind of bleed” and that she was not interested
in surgery but might consider endovascular coiling”. (T. 264, 372). The treatment options offered
by the UAMS Neurosurgery Clinic were 1) No Intervention, 2) Coiling 3 and 3) Clipping 4. Dr.
Krisht noted that the Plaintiff would decide and get back with us. (T. 373). On November 25,
2008 a UAMS note stated that they needed to look at endovascular coiling during pregnancy or
after. (T. 359).
It is clear that the first option offered by the neurosurgeon at UAMS was no intervention
and the most conservative option was the one that the Plaintiff opted for. See Smith v. Shalala,
987 F.2d 1371, 1374 (8th Cir. 1993) (holding that treating physician’s conservative treatment
was inconsistent with plaintiff’s allegations of disabling pain). The Plaintiff’s conservative
Nortriptyline is in a group of drugs called tricyclic antidepressants. It affects chemicals in
the brain that may become unbalanced. Nortriptyline is used to treat symptoms of depression.
Nortriptyline may also be used for other purposes. (See www.drugs.com Viewed July 28, 2011).
With endovascular coiling, the surgeon feeds a soft, flexible wire into the aneurysm via a
catheter. The wire coils inside the aneurysm, causing a blood clot that seals off the aneurysm
from the artery. (See www.mayoclinic.com Viewed July 29, 2011).
In direct surgical repair with the patient under general anesthesia, the aneurysm is
approached through a craniotomy. (See www.mayoclinic.com)
choice and her refusal to allow surgery indicates that her pain is not as disabling as she contends.
(5) functional restrictions.
The Plaintiff began to treat with Dr. Hoang, M.D. on April 12, 2005 as a result of another
automobile accident complaining of low back, neck and left leg and knee pain. (T. 230-231).
She treated with Dr. Hoang until January 17, 2006. (T. 223-229). It does not appear that the
Plaintiff ever complained of migraine headaches during her treatment with Dr. Hoang. Thus,
there was substantial evidence for the ALJ to doubt Plaintiff's complaints of disabling symptoms
considering Plaintiff failed to seek more frequent and substantive treatment. See Benskin v.
Bowen, 830 F.2d 878, 884 (8th Cir. 1987) (upholding ALJ's consideration of claimant's failure to
seek medical attention where claimant's measures to relieve pain were not indicative of severe,
Dr. Hoang performed a General Physical Examination on the Plaintiff on July 21, 2008
and found that she had a normal range of motion (T. 220) with no neurological deficits, no
muscle atrophy, normal gait and no deficits in limb function. (T. 221). He diagnosed her with
chronic daily headaches and chronic neck, knee, hip and back pain but felt that she had “mild
physical limitations for work”. (T. 222). Dr. Hoang did not place any other physical restrictions
on the Plaintiff. The opinion of a treating physician is accorded special deference and will be
granted controlling weight when well-supported by medically acceptable diagnostic techniques
and not inconsistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2);
Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000).
The Plaintiff first began to treat with Dr. Ronald Myers on February 13, 2008 for knee,
back, and neck pain and for migraines. As the court has previously noted this was one month
after she had applied for SSI and no explanation why she would live in one state and go to
another state for medical attention especially in light of the fact that she had not sought treatment
for her pain previously. See Page v. Astrue, 484 F.3d 1040, 1043 -44 (8th Cir. 2007); Shannon v.
Chater, 54 F.3d 484, 486 (8th Cir.1995) (Given his alleged pain, Shannon's failure to seek
medical treatment may be inconsistent with a finding of disability where doctor's visit linked
primarily to obtaining benefits rather than medical treatment)).. Johnson v. Bowen, 866 F.2d 274,
275 (8th Cir.1989).
It appears that Dr. Meyer continued to treat the Plaintiff with Soma5 and Lorecet at the
time. (T. 301). Dr. Myers ordered a Brain MRA which was performed on April 9, 2008 which
noted the presence of a right ICA aneurysm but that it was “not appreciably changed from old
MRA of 2001". (T. 298, 292). On April 16, 2008 Dr. Myers provided an Attending Physician’s
Statement which diagnosed the Plaintiff with chronic headaches due to a right ICA aneurysm.
He felt this would interfere with attention and concentration, affect her ability to tolerate work
stress. She would have to take unscheduled breaks, that she would miss more than 4 days per
month, that her condition would not change and that she was not capable of working eight hours
per day or 40 hours per week. (T. 296).
The Plaintiff testified that she only saw Dr. Meyers one time and after that she saw Dr.
Tougas. (T. 21). The court is unsure of the training of Dr. Tougas but he appears to be a doctor
of chiropractic medicine since the Wellness Clinic of Roland’s prescription contains the name of
Bernard M. Tougas, Jr. D.C. , PA-C. (T. 242). Based upon the Plaintiff’s testimony it appears
Soma is a muscle relaxer that works by blocking pain sensations between the nerves and
the brain. (See www.drugs.com Viewed July 26, 2011).
that Dr. Tougas was her treating physician not Dr. Meyers but the ALJ seems to have assumed
that Dr. Meyers was her treating physician.
A treating physician's medical opinion is given controlling weight if that opinion is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2).
These opinions are not automatically controlling, however, because the record must be evaluated
as a whole. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.2005). We will uphold an ALJ's
decision to 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.” Id. at
920-21 (internal quotations omitted).
The ALJ noted that Dr. Myers’ opinions were not consistent with records from UAMS
where she was “advised to progressively increase her activities over the next month and there
was nothing in the records to indicate that her aneurysm or migraines would limit her. (T. 41).
The ALJ noted that just eight days before writing his opinion in his Attending Physician’s
Statement (T. 241) he wrote a note that the Plaintiff was to be on “light duty” until further notice.
In addition to being inconsistent Dr. Meyers Attending Physician’s Statement is
conclusory and offers no basis for his conclusions other than the Plaintiff’s existing aneurysm. It
is proper for the ALJ to decline to give weight to the vague, conclusory, and unsupported
opinions of a treating physician. See Brown v. Astrue, 611 F.3d 941, 952 (8th Cir. 2010). An ALJ
is entitled to give less weight to an opinion that is based largely on a claimant’s subjective
complaints instead of objective medical evidence. Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir.
The ALJ chose to give more weight to neurosurgeon Dr. Capocelli and Dr. Krisht than to
the general practitioner Dr. Meyers. Opinions of specialists on issues within their areas of
expertise are “generally” entitled to more weight than the opinions of non-specialists. See 20
C.F.R. §§ 404.1527(d) (5), 416.927(d)(5). Guilliams v. Barnhart 393 F.3d 798, 803 (C.A.8
(Mo.),2005), 20 C.F.R. § 404.1527
While an ALJ may not discount a claimant's subjective complaints solely because the
medical evidence fails to support them, an ALJ may discount those complaints where
inconsistencies appear in the record as a whole. Reed v. Sullivan, 988 F.2d 812, 815 (8th
Cir.1993). As the United States Court of Appeals for the Eighth Circuit observed, “Our
touchstone is that [a claimant's] credibility is primarily a matter for the ALJ to decide.” Edwards
v. Barnhart, 314 F.3d 964, 966 (8th Cir.2003). The court defers to the ALJ's credibility
determination, especially where the testimony appears to indicate that plaintiff gave contradictory
answers. Human v. Barnhart, 2006 WL 2422182, 3 (D.Kan.) (D.Kan.,2006). The Court believes
the ALJ adequately evaluated the factors set forth in Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir.1984), and concludes there is substantial evidence supporting the ALJ's determination
that Plaintiff's complaints were not fully credible.
C. Grid Guidelines:
The ALJ found that given Plaintiff’s age, education, work experience, and residual
functional capacity for full range of sedentary work, Grid Rule 201.24 directed a finding of not
disabled (Tr. 42). 20 C.F.R. pt. 404, subpt. P, app. 2, Table No. 2, Rule 201.24. If the findings of
fact made about all of the vocational factors are the same as the corresponding criteria of a Grid
Rule, the ALJ uses that rule to decide whether a person is disabled. 20 C.F.R. § 416.969. The
Medical-Vocational Guidelines, 20 C.F.R. Chapter III, Part 404, Subpart P, Appendix 2, §§
202.00-204.00, may be used by the Secretary to meet the burden of showing availability of jobs
in the national economy, which a claimant may perform, if claimant's characteristics identically
match those contained in the Guidelines. Id. at 1339; see also Foreman v. Callahan, 122 F.3d 24,
25 (8th Cir.1997)(for exertional impairments, Secretary may carry burden by referring to the
grids, which are fact-based generalizations about the availability of jobs for people of varying
ages, educational backgrounds, and previous work experiences with differing degrees of
The Guidelines can be used to determine disability, provided that the nonexertional
impairments do not significantly diminish the claimant's residual capacity to perform the
activities listed in them. Reed v. Sullivan, 988 F.2d 812, 816 (8th Cir.1993); Thompson v. Bowen,
850 F.2d 346, 349-50 (8th Cir.1988).
The issue in this case is the nonexertional impairments caused by the Plaintiff’s medical
condition and whether that condition “significantly diminishes” the Plaintiff’s RFC. The
Plaintiff’s complaints of pain related to her back, knee, leg and ankle are completely unsupported
by the medical record and, as stated above, the credibility of the Plaintiff is for the ALJ to
determine where there are inconsistent statements made by the Plaintiff. The court has previously
held that the ALJ correctly discounted the allegations of pain in relation to the Plaintiff’s back,
knee, leg and ankle.
The ALJ fully considered Plaintiff’s headaches and found that they were a severe
impairment because they imposed more than minimal limitation on Plaintiff’s ability to perform
basic work activities (Tr. 39). He discussed Plaintiff’s testimony and Dr. Myers’s opinion that
Plaintiff’s headaches interfered with her attention, concentration, and ability to tolerate work
stress (Tr. 19, 41, 241). Accordingly, the ALJ limited Plaintiff to unskilled work, which he noted
the regulations define as “work which needs little or no judgment to do simple duties that can be
learned on the job in a short period of time” (Tr. 41). 20 C.F.R. § 416.968(a).
Based upon the reasons set forth above the court does not find that the ALJ erred in
determining that the Plaintiff’s proof of pain in relation to her “headaches” did not significantly
diminish her residual capacity to perform sedentary work as set forth in the Guidelines. See
Pearsall v. Massanari, 274 F.3d 1211, 1217-18 (8th Cir.2001) (ALJ determines claimant's RFC
based on all relevant evidence); Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir.2001) (deference to
ALJ's opinion is appropriate when ALJ explicitly discredits claimant and gives good reason for
doing so); Reed v. Sullivan, 988 F.2d 812, 816 (8th Cir.1993) (reliance on medical-vocational
guidelines, without testimony of vocational expert, is allowed if ALJ determines that claimant's
nonexertional limitations do not significantly affect claimant's RFC).
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision, and thus the decision should be affirmed. The
undersigned further finds that the plaintiff’s Complaint should be dismissed with prejudice.
Dated this 1st day of August 2011.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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