Kulp v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on January 10, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
KEVIN DEWAYNE KULP
Civil No. 2:11-cv-02207-JRM
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration
Factual and Procedural Background
Plaintiff, Kevin DeWayne Kulp, brings this action seeking judicial review, pursuant to 42
U.S.C. § 405(g), of a decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying his applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (“the Act”).
Plaintiff protectively filed his DIB and SSI applications on January 7, 2010, and November
10, 2009, respectively, alleging disability as of April 15, 2009, due to status post left second and
third finger amputation, hepatitis C, depression, and arthritis. Tr. 10, 172. On the alleged onset date,
Plaintiff was forty-five years old with a high school education. Tr. 20, 59, 173. He has past relevant
work as a construction laborer, welder, carpenter, and roofer. Tr. 20, 181-188.
Plaintiff’s applications were denied at the initial and reconsideration levels. Tr. 84-90, 92-96.
At Plaintiff’s request, an administrative hearing was held on January 6, 2011. Tr. 56-77. Plaintiff
was present at this hearing and represented by counsel. The ALJ rendered an unfavorable decision
on February 25, 2011, finding Plaintiff was not disabled within the meaning of the Act. Tr. 7-21.
Subsequently, the Appeals Council denied Plaintiff’s Request for Review on September 1, 2011,
thus making the ALJ’s decision the final decision of the Commissioner. Tr. 1-4. Plaintiff now seeks
judicial review of that decision.
The Court’s role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). In determining whether
evidence is substantial, the Court considers both evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000)
(citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If, after conducting this review, “it
is possible to draw two inconsistent positions from the evidence and one of those positions
represents the [Secretary’s] findings,” then the decision must be affirmed. Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
To be eligible for disability insurance benefits, a claimant has the burden of establishing that
he is unable to engage in any substantial gainful activity due to a medically determinable physical
or mental impairment that has lasted, or can be expected to last, for no less than twelve months.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A). The
Commissioner applies a five-step sequential evaluation process to all disability claims: (1) whether
the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment that significantly limits his physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a disabling impairment listed in the
regulations; (4) whether the claimant has the RFC to perform his past relevant work; and (5) if the
claimant cannot perform his past work, the burden of production then shifts to the Commissioner
to prove that there are other jobs in the national economy that the claimant can perform given his
age, education, and work experience. Pearsall, 274 F.3d at 1217; 20 C.F.R. § 404.1520(a),
416.920(a). If a claimant fails to meet the criteria at any step in the evaluation, the process ends and
the claimant is deemed not disabled. Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir.
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity at
any point since April 15, 2009, the alleged onset date. Tr. 12. At step two, the ALJ found Plaintiff
suffers from arthritis, residual effects from a remote left hand 2nd and 3rd finger amputation with
reattachment, hepatitis C, and depressive disorder, which he considered severe impairments under
the Act. Tr. 12-13. At step three, the ALJ determined Plaintiff did not have an impairment or
combination of impairments that meets or medically equals a listed impairment. Tr. 13-15.
At step four, the ALJ found Plaintiff has the RFC to perform light work, as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b), with only occasional fingering, handling, and repetitive
flexion/extension of the wrist with his nondominant hand, and where interpersonal contact is
incidental to the work performed, complexity of tasks is learned and performed by rote, with few
variables and little judgment required, and the supervision required is simple, direct, and concrete.
With these limitations, the ALJ determined Plaintiff could not perform his past relevant
work. Tr. 20. After receiving vocational expert interrogatories, the ALJ found jobs existing in
significant numbers in the national economy that Plaintiff could perform.1 Tr. 21, 30, 228.
Accordingly, the ALJ determined Plaintiff was not under a disability from April 15, 2009, the
alleged onset date, through February 25, 2011, the date of the administrative decision. Tr. 21.
On appeal, Plaintiff contends the ALJ erred by: (A) improperly determining his RFC; (B)
improperly evaluating the opinion evidence; and (C) discrediting his subjective complaints. See Pl.’s
Br. 15-22. For reasons discussed below, the undersigned finds that substantial evidence supports
the ALJ’s determination.
A. RFC Assessment
Plaintiff argues that substantial evidence does not support the ALJ’s RFC determination. See
Pl.’s Br. 15-18. At the fourth step of the evaluation, a disability claimant has the burden of
establishing his RFC. Eichelberger, 390 F.3d at 591; Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004). A claimant’s RFC is the most he can do despite his limitations. 20 C.F.R. §
404.1545(a)(1). The ALJ determines a claimant’s RFC based on “all relevant evidence, including
medical records, observations of treating physicians and others, and the claimant’s own descriptions
of his or her limitations.” Masterson, 363 F.3d at 737. The Eighth Circuit has stated that “a
claimant’s residual functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704
(8th Cir. 2001). Thus, although the ALJ bears the primary responsibility for determining a
claimant’s RFC, there must be “some medical evidence” to support the ALJ’s determination.
The ALJ determined Plaintiff could perform the requirements of representative occupations such as
polystyrene molding machine tender, of which there are 1,400 jobs in Arkansas and 60,000 jobs nationally, and
cleaner, housekeeping, hotel/motel, of which there are 2,300 jobs in Arkansas and 245,000 jobs nationally. Tr. 21.
Eichelberger, 390 F.3d at 591; Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir 2000).
1. Physical Impairments
Plaintiff sustained a significant table saw injury to his left hand on March 9, 2005. Tr. 239.
As a result, Plaintiff underwent revascularization of the index and long fingers, as well as tendon
repairs and internal fixation of the bone fractures. Tr. 241. Plaintiff required repeat internal fixation
of the index and long finger proximal phalanx fractures and a tendon repair of the long finger. Tr.
241. He underwent hardware removal of the left index and long fingers on March 23, 2005. Tr. 241.
At that time, Plaintiff’s surgeon, Dr. Ruffin, did not feel that Plaintiff’s hand function would
significantly improve with any further surgery of the tendons, nerves, or arteries. Tr. 241.
On April 8, 2008, Plaintiff saw Michael M. Moore, M.D., with complaints of pain and
numbness, cramping sensations in the left hand, pain in the left long finger PIP joint, and cold
intolerance. Tr. 241. On examination, there were obvious deformities of the index and long fingers
on the left hand. Tr. 242. Tinel’s and Phalen’s tests were positive. Tr. 242. Plaintiff had decreased
range of motion in both his left index and long fingers. Tr. 242. Grip strength averaged thirty
pounds on the left and pinch strength averaged twelve pounds on the left. Tr. 243. X-ray imaging
revealed post-traumatic degenerative changes of the left long finger PIP joint. Tr. 239, 243. Dr.
Moore found that Plaintiff’s symptoms were possibly related to post-traumatic carpal tunnel
syndrome, post-traumatic degenerative arthritis of the left long finger PIP joint, and cold intolerance.
Subsequent nerve conduction and EMG studies did not reveal any evidence of carpal tunnel
syndrome. Tr. 239. Dr. Moore believed Plaintiff would benefit from conservative treatment, and
gave Plaintiff a left carpal tunnel pain injection, a carpal tunnel splint, and a prescription for
Darvocet. Tr. 239.
In a Physical RFC Assessment dated April 26, 2010, Bill F. Payne, M.D., an agency
specialist, reviewed Plaintiff’s medical records and determined he would be capable of light work,
with his left upper extremity used only as an assistive device. Tr. 307.
On August 16, 2010, Plaintiff saw Tedd Lennard, M.D., for a disability evaluation. Tr. 337341. Dr. Lennard noted that Plaintiff’s left second and third digits were swollen and disfigured, and
the PIP and DIP joints of these fingers were fixed in a neutral position. Tr. 341. He determined
Plaintiff would have difficulty with left hand fine motor tasks, grasping, and repetitive left hand
activities. Tr. 341. He found no other limitations. Tr. 341.
At issue is the extent Plaintiff is capable of using his left hand. Dr. Moore found that
Plaintiff had significant limitations in reaching, handling, or fingering, and could not use his left
hand to grasp, turn, or twist objects, or for fine manipulations. Tr. 257. Dr. Payne found that
Plaintiff could only use his left hand as an assistive device. Tr. 307. Dr. Lennard found that Plaintiff
would have difficulty with left hand fine motor tasks, grasping, and repetitive left hand activities.
Tr. 341. In his RFC Assessment, the ALJ limited Plaintiff to light work with occasional fingering,
handling, and repetitive flexion/extension of his left wrist. Tr. 15-20. “Occasional” means up to
one-third of the time.
The Commissioner submits that the opinions of Plaintiff’s physicians are fairly consistent
with one another, and the undersigned agrees. Regardless, “it is the ALJ’s function to resolve
conflicts among the opinions of various treating and examining physicians.” Pearsall v. Massanari,
274 F.3d 1211, 1219 (8th Cir. 2001). Of importance is the fact that Plaintiff continued to work for
four years following his 2005 hand injury. Tr. 61-62. This evidence negates a conclusion that
Plaintiff is incapable of using his left hand in any capacity. Although it is clear that Plaintiff has
significant limitations concerning the use of his left hand, the evidence does not support a finding
more restrictive than as determined by the ALJ. As such, the undersigned concludes that substantial
evidence supports the ALJ’s physical RFC determination.
2. Mental Impairments
Plaintiff reports a history of depression, aggression, and mood swings. On April 14, 2010,
Plaintiff saw Nancy J. Toombs, Ph.D., for a consultative mental evaluation. Tr. 288-293. Dr.
Toombs diagnosed Plaintiff with depressive disorder not otherwise specified, alcohol and cannabis
abuse, and poly-drug dependency in remission.
She estimated Plaintiff’s Global
Assessment of Functioning (“GAF”) score at 50. Tr. 291. Dr. Toombs found that Plaintiff could
see to all activities of daily living, socialize in an adequate manner, and communicate his needs
effectively. Tr. 291. She determined Plaintiff had an adequate ability to cope with the cognitive
demands of work tasks and was able to follow instructions and directions and perform a simple
repetitive tasks. Tr. 292. She further found that Plaintiff had adequate concentration, was not
distractable or inattentive, and had good task persistence. Tr. 292. Dr. Toombs opined that Plaintiff
may need extra time to complete complex tasks. Tr. 292. However, she noted that Plaintiff was not
working due to physical issues and not mental health. Tr. 292.
On April 27, 2010, Winston Brown, M.D., an agency consultant, reviewed Plaintiff’s medical
records and determined he was capable of unskilled work. Tr. 316-319.
Plaintiff received voluntary inpatient treatment at the VA Medical Center from September
15, 2010, through September 17, 2010, for unstable mood with explosive anger and aggression. Tr.
369-370. Notably, Plaintiff’s hospitalization occurred following an unsuccessful trial of Quetiapine.
Tr. 458. Carol Ann Phillips, M.D., diagnosed Plaintiff with organic mood disorder secondary to
seizures/traumatic brain injury, polysubstance dependence in partial remission, opiate dependence
in remission, cannabis abuse, tobacco use disorder, and personality disorder with cluster B traits.
Plaintiff was discharged with prescriptions for Trazodone, Carbamazepine, and
Mirtazapine. Tr. 369.
Following Plaintiff’s discharge, he received outpatient counseling from September 2010
through November 2010. Tr. 405, 415, 441-442, 449-450, 463. Tori Harris, a licensed clinical
social worker, diagnosed Plaintiff with major depressive disorder and bipolar disorder. Tr. 449-450.
After considering the evidence of record, the ALJ determined Plaintiff is capable of
performing work in which interpersonal contact is incidental to the work performed, complexity of
tasks is learned and performed by rote, with few variables and little judgment required, and
supervision is simple, direct, and concrete. Tr. 15-20.
Plaintiff submits that the ALJ’s RFC assessment is inconsistent with the opinion of Dr.
Brown. Tr. 316-319. However, the undersigned notes that Dr. Brown found only moderate
limitations in Plaintiff’s functional abilities and concluded that he could perform unskilled work.
Tr. 318. In fact, the ALJ’s mental RFC determination is almost identical to Dr. Brown’s conclusion.
As such, Plaintiff’s argument has no merit.
B. Treating Physician’s Opinion
Plaintiff contends that the ALJ should have adopted Dr. Moore’s RFC Assessment in its
entirety. See Pl.’s Br. 18-20. A treating physician’s opinion is given controlling weight if it “is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence” in a clamant’s record. Tilley v. Astrue, 580 F.3d
675, 679 (8th Cir. 2009); 20 C.F.R. § 404.1527(d)(2). The record must be evaluated as a whole to
determine whether the treating physician’s opinion should be controlling. Reed v. Barnhart, 399
F.3d 917, 920 (8th Cir. 2005). A treating physician’s evaluation may be disregarded 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 92021 (quoting Prosch, 201 F.3d at 1013). In any case, an ALJ must always “give good reasons” for
the weight afforded to the treating physician’s opinion. 20 C.F.R. § 404.1527(d)(2).
On October 31, 2009, Dr. Moore completed a Physical RFC Questionnaire, in which he
indicated that Plaintiff would have permanent minimal function of the left hand. Tr. 253-257. Dr.
Moore found that Plaintiff could sit and/or stand/walk for at least six hours in an eight-hour workday,
occasionally lift less than ten pounds, and rarely lift ten pounds, but could never climb ladders. Tr.
255-256. He further determined Plaintiff had significant limitations in reaching, handling, or
fingering, and could not use his left hand to grasp, turn, or twist objects, or for fine manipulations.
Tr. 257. He found that Plaintiff would miss more than four work days per month as a result of his
impairments. Tr. 257.
The ALJ determined that Dr. Moore’s opinion was largely supported by the medical evidence
and afforded it great weight. Tr. 19. However, the ALJ did not adopt Dr. Moore’s opinion that
Plaintiff would miss work four or more days per month, noting that this limitation was not supported
by the medical evidence and appeared to be based largely on Plaintiff’s subjective complaints. Tr.
Substantial evidence supports the ALJ’s analysis of the opinion evidence. Notably, although
Dr. Moore is considered a treating physician, he only saw Plaintiff on two occasions and thus did
not have a significant treating relationship. As a result, his opinion concerning the amount of time
Plaintiff would likely miss work appears to be more of a subjective estimate rather than a medical
opinion supported by objective findings. As such, the undersigned cannot conclude that the ALJ
erred in his treatment of Dr. Moore’s opinion.
C. Subjective Complaints
Finally, Plaintiff alleges the ALJ improperly dismissed his subjective complaints. See Pl.’s
Br. 20-21. When evaluating a claimant’s subjective allegations, the ALJ must consider all evidence
relating to: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain;
(3) any precipitating and aggravating factors; (4) the dosage, effectiveness and side effects of
medication; and (5) any functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984). The ALJ “may not discount a claimant’s allegations of disabling pain solely because the
objective medical evidence does not fully support them.” Medhaug v. Astrue, 578 F.3d 805, 816
(8th Cir. 2009) (quoting Goff, 421 F.3d at 792). However, subjective complaints may be discounted
if there are inconsistencies in the medical evidence as a whole. Id. A court “will not disturb the
decision of an ALJ who considers, but for good cause expressly discredits, a claimant’s complaints
of disabling pain.” Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006) (quoting Goff, 421 F.3d
It is well-settled that an ALJ need not explicitly discuss each Polaski factor; it is “sufficient
if he acknowledges and considers those factors before discounting a claimant’s subjective
complaints.” Heino v. Astrue, 578 F.3d 873, 881 (8th Cir. 2009) (quoting Strongson v. Barnhart,
361 F.3d 1066, 1072 (8th Cir. 2004)). Contrary to Plaintiff’s assertion, the ALJ properly considered
his subjective complaints and dismissed them for legally sufficient reasons. First, the medical
evidence does not support Plaintiff’s allegations of right hand pain. X-rays of Plaintiff’s right hand
revealed possible post-traumatic changes involving the distal aspect of the fifth metatarsal. Tr. 272.
However, physical examinations of Plaintiff’s right hand were unremarkable. Tr. 297-298, 340-341.
Additionally, the undersigned can find no evidence that Plaintiff complained of pain or limitation
in his right hand. See Frederickson v. Barnhard, 359 F.3d 972, 976 (8th Cir. 2004) (ALJ properly
considered lack of evidence that claimant had complained of pain to his physicians).
With regard to Plaintiff’s left hand impairment, the ALJ properly considered evidence that
Plaintiff worked for a significant period of time following his injury. See Gregg v. Barnhart, 354
F.3d 710, 713 (8th Cir. 2003) (claimant’s ability to work part-time was inconsistent with finding of
total disability); Browning v. Sullivan, 958 F.2d 817, 823 (8th Cir. 1992) (claimant worked for eight
years following her first prescription); Logston v. Astrue, 566 F. Supp. 2d 945, 962 (S.D. Iowa 2008)
(claimant continued to work for several months following her injury). Additionally, Dr. Lennard
noted that Plaintiff had grease under his fingernails during physical examination, which implies that
Plaintiff’s activities were less limited than he originally reported. Guilliams v. Barnhard, 393 F.3d
798, 802 (8th Cir. 2005) (physician noted that claimant’s hands were calloused and greasy at the time
of examination, indicating significant daily activities). Finally, the ALJ found that Plaintiff’s
subjective complaints were simply inconsistent with the objective evidence in the record. Hutton
v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (absence of objective medical evidence to support
Here, the ALJ cited the proper standard, considered the factors in conjunction with Plaintiff’s
testimony, and then properly discounted Plaintiff’s subjective complaints. See Gates v. Astrue, 627
F.3d 1080, 1082 (8th Cir. 2010) (“we defer to an ALJ’s credibility determinations if they are
supported by valid reasons and substantial evidence”). For these reasons, substantial evidence
supports the ALJ’s credibility analysis.
Having carefully reviewed the record, the undersigned finds that substantial evidence
supports the ALJ's determinations at each step of the disability evaluation process, and thus the
decision should be affirmed. Accordingly, Plaintiff’s complaint should be dismissed with prejudice.
IT IS SO ORDERED this 10th day of January 2013.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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