Contreras v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 15, 2012. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CIVIL NO. 11-5066
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Diana Contreras, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and XVI
of the Social Security Act (Act).1 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).
Plaintiff filed her current applications for DIB and SSI on May 7, 2008, and February 20,
2008, respectively, alleging an inability to work since October 1, 2006, and June 20, 2007,
The Court notes Plaintiff indicated in her application to proceed in forma pauperis
that she received SSI benefits. (Doc. 3).
respectively, due to a “fractured vertebrae rubbing on talibone/herniated discs.2” (Tr. 117, 120,
143). For DIB purposes, Plaintiff maintained insured status through June, 30, 2007. (Tr. 49).
An administrative hearing was held on June 2, 2009, at which Plaintiff appeared with counsel
and testified. (Tr. 6-42).
By written decision dated August 10, 2009, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 52).
Specifically, the ALJ found Plaintiff had the following severe impairments: spondylolithesis of
the back, osteoarthritis, a mood disorder, and a generalized anxiety disorder. However, after
reviewing all of the evidence presented, the ALJ determined that Plaintiff’s impairments did not
meet or equal the level of severity of any impairment listed in the Listing of Impairments found
in Appendix I, Subpart P, Regulation No. 4. (Tr. 52). The ALJ found Plaintiff retained the
residual functional capacity (RFC) to:
lift/carry 10 pounds occasionally, sit for 6 hours and stand/walk 2 hours. She can
occasionally climb ladders and scaffolds and crawl. She can frequently climb
ramps and stairs, balance, stoop, kneel, and crouch. She has moderate
restrictions in maintaining social functioning and concentration, persistence, and
pace. She is moderately limited in appropriately responding to usual work
situations and routine work changes and in appropriately interacting with
supervisors and co-workers. Moderately limited means there is more than a slight
limitation, but the person can perform in a satisfactory manner. She can perform
work in which interpersonal contact is incidental to the work performed, where
complexity of tasks is learned and performed by rote with few variables and little
judgment and where the supervision is simple, direct, and concrete.
(Tr. 53-54). With the help of a vocational expert, the ALJ determined Plaintiff could perform
The ALJ noted Plaintiff filed previous applications for DIB and SSI, January 12,
2005, and April 16, 2007. (Tr. 49, 102, 106, 109, 112). At the administrative hearing on
June 2, 2009, the ALJ noted that the onset date of June 20, 2007, would be used because that
was the first day after the most recent unfavorable decision. (Tr. 15).
work in assembly production, and as a hand packer/packager. (Tr. 58).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence, denied that request on January 14, 2011. (Tr. 1-5).
Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant
to the consent of the parties. (Doc. 6). Both parties have filed appeal briefs, and the case is now
ready for decision. (Docs. 8,9).
The administrative hearing was held before the ALJ on June 2, 2009. (Tr. 6-42). At that
time, Plaintiff was forty-eight years of age. The record revealed that Plaintiff obtained a high
school education and had two years of college education. (Tr. 147). The record revealed that
Plaintiff’s past relevant work consisted of work as a janitor, a convenience store clerk, and a
caretaker. (Tr. 149).
The record revealed that prior to the alleged onset date, Plaintiff was treated for back pain
beginning after her involvement in a motor vehicle accident in March of 2004. (Tr. 215-276).
In December of 2004, Dr. Jorge E. Tijmes, diagnosed Plaintiff with low back pain and lumbar
spondylolysis. At that time, Dr. Tijmes opined that Plaintiff was a candidate for a lumbar
laminectomy and posterolateral fusion at L5-S1 level. (Tr. 219). With regard to Plaintiff’s back,
in May of 2005, Dr. Michael R. Kilgore opined that Plaintiff had the following permanent
restrictions: no lifting, pulling, or pushing items over twenty pounds; avoid prolonged periods
of standing, sitting and walking; and no bending, stooping, or twisting. (Tr. 225). Prior to the
relevant time period, Plaintiff was also treated for influenza and swelling of the lower
The medical evidence during the relevant time period reflects the following. On June 18,
2007, Plaintiff, who at that time was an inmate of the McPherson Unit of the Arkansas
Department of Correction (ADC), underwent a physical exam performed by Dr. Donald
Anderson. (Tr. 278-284). At that time, Plaintiff reported she was not taking any medication.
Upon examination, Dr. Anderson noted Plaintiff had both a normal physical and mental
examination. Dr. Anderson noted that Plaintiff was obese and deconditioned. Dr. Anderson
opined that Plaintiff should avoid prolonged crawling; and that Plaintiff was restricted from
assignments requiring prolonged crawling, stooping, running, jumping, walking, or standing.
Dr. Anderson opined that Plaintiff should avoid strenuous activity, and restricted Plaintiff from
performing any assignment requiring strenuous physical activity for periods in excess of four
ADC medical notes dated July 7, 2007, report that Plaintiff was seen by the nurse after
reporting that she needed a mammogram. (Tr. 290-291). The nurse noted no abnormal findings
at that time, and told Plaintiff that she would be seen by a physician at some point.
ADC medical notes dated October 10, 2007, report that Plaintiff was seen by a nurse to
undergo a pap exam. (Tr. 297, 303-308). Plaintiff reported no problems at that time, but noted
irregular periods and hot flashes since May.
ADC medical notes dated November 7, 2007, report that Plaintiff was seen by Dr. Larry
Bowler after complaining of swelling and discomfort in her lower extremities. (Tr. 296). Upon
examination, Dr. Bowler noted Plaintiff’s knees and lower extremities were without swelling or
deformity. Plaintiff was diagnosed with obesity, and knee strain secondary to poor fitness.
Plaintiff was prescribed Ibuprofen.
ADC medical notes dated December 13, 2007, report that Plaintiff was seen by the nurse
after complaining of a rash on her neck that itched. (Tr. 287-289). Plaintiff reported that she
worked in the kitchen, and that her neck really itched when she sweated. Plaintiff was diagnosed
with dermatitis and prescribed topical hydrocortisone. Plaintiff was to request a sick call if her
symptoms did not improve in three days.
ADC medical notes dated January 3, 2008, report that Plaintiff was seen by the nurse
because she had a lump behind her ear and a possible ingrown pimple on the front part of her ear.
(Tr. 285-286). After observing an irregular shaped area on Plaintiff’s ear, Plaintiff was referred
to the physician.
ADC medical notes dated January 5, 2008, report that Plaintiff was seen by the nurse
after complaining of pain caused by the sore on her ear. (Tr. 292-293). The nurse noted that
Plaintiff had a minor injury and pain and prescribed Acetaminophen.
ADC medical notes dated January 6, 2008, report that Plaintiff was seen by the nurse
after complaining of swelling of a hair follicle with pain. (Tr. 294-295, 299). Plaintiff was
diagnosed with “boils’ and prescribed medication. Plaintiff was to return if the area did not
begin to drain.
On March 25, 2008, Plaintiff underwent a consultative general physical examination
performed by Dr. Randy Duane Conover. (Tr. 310-315). Plaintiff complained of back and
bilateral knee pain. Plaintiff reported that she smoked one-fourth of a package of cigarettes a
day. Upon examination of Plaintiff’s spine and extremities, with the exception of limitation in
the flexion of Plaintiff’s right knee and lumbar spine, Plaintiff had normal range of motion in
these areas. Dr. Conover found no presence of muscle spasm and negative straight leg tests,
bilaterally. Plaintiff exhibited no muscle weakness or atrophy, but Dr. Conover noted that
Plaintiff limped on the right. Upon a limb function evaluation, Dr. Conover reported Plaintiff
was able to hold a pen and write; to touch fingertips to palm; to grip 90% of normal; to oppose
thumb to fingers; to pick up a coin; to stand and walk without assistive devices; to walk on heel
and toes; and to squat and arise from a squatting position. Dr. Conover’s notes indicated that he
reviewed Plaintiff’s MRI of the spine dated May 5, 2004. (Tr. 245). Dr. Conover noted Plaintiff
was oriented to time, person, and place and that he saw no evidence of psychosis. Plaintiff was
diagnosed with spondylolithesis of the anterior lumbar spine; osteoarthritis; and depression. Dr.
Conover opined Plaintiff could handle, finger, see, hear and speak; that Plaintiff was moderately
limited in her ability to walk and stand; and that Plaintiff was severely limited in her ability to
lift and carry.
On March 31, 2008, Dr. Bill F. Payne, a non-examining medical consultant, completed
a RFC assessment stating that Plaintiff could occasionally lift or carry twenty pounds, frequently
ten pounds; could stand and/or walk for about six hours in an eight-hour workday; could sit for
a total of about six hours in an eight-hour workday; and could push or pull unlimited, other than
as shown for lift and/or carry. (Tr. 319-326). Dr. Payne noted that postural, manipulative,
visual, communicative or environmental limitations were not evident.
On March 31, 2008, Plaintiff underwent a consultative mental diagnostic evaluation
performed by Dr. Terry L. Efird. (Tr. 347-351). Plaintiff reported that she had applied for
disability due to her depression and short-term memory loss. Plaintiff reported feeling worthless
and she endorsed excessive worry about getting a job. Plaintiff denied a history of psychiatric
treatment, but reported having been prescribed Lexapro by a free clinic. Plaintiff reported that
she took Lexapro as prescribed and denied experiencing side effects. Dr. Efird noted that
Plaintiff lived with a friend and her three children since being out of “boot camp” for the past
two months. Plaintiff reported the ability to do most activities of daily living satisfactorily. Dr.
Efird noted that Plaintiff was neat and clean, and that Plaintiff drove herself to the evaluation.
After evaluating Plaintiff, Dr. Efird diagnosed Plaintiff with major depressive disorder,
moderate; and a generalized anxiety disorder. Plaintiff was given a GAF score of 55-65. Dr.
Efird estimated Plaintiff’s intellectual functioning to be in the low average range.
With regard to adaptive functioning, Dr. Efird noted Plaintiff reported the ability to drive
unfamiliar routes; however, she also reported having some problems with directions. Plaintiff
reported that she could shop independently; however, Plaintiff also reported that since being out
of prison, a friend had gone shopping with her because Plaintiff sometimes felt like people were
watching her. Plaintiff reported she interacted with the family that she lived with, and went to
church. Dr. Efird opined that Plaintiff had the capacity to perform basic cognitive tasks; that
Plaintiff completed most tasks within an adequate time frame; and that Plaintiff’s pace would
be fairly consistent with her estimated intellectual functioning.
On April 3, 2008, Plaintiff was seen at the Community Clinic due to her nausea, vomiting
and diarrhea. (Tr. 335-337). Clinic notes indicated that Plaintiff had been in jail for nine
months, and that she had lost weight while incarcerated. Plaintiff’s breathing was noted as okay
overall but Plaintiff wanted an inhaler prescription refill. Plaintiff also reported some depression
and that Lexapro had helped her in the past. Plaintiff’s physical examination was within normal
limits. Plaintiff was diagnosed with gastroenteritis, depression, and asthma. Plaintiff was
prescribed Phenergan, Lexapro and Albuterol.
On April 4, 2008, Dr. Brad F. Williams, a non-examining medical consultant, completed
a Psychological Review Technique Form (PRTF) and opined that Plaintiff had a severe mental
impairment. (Tr. 354-367). Dr. Williams opined Plaintiff had mild restrictions of her activities
of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in
maintaining concentration persistence or pace; and no repeated episodes of decompensation, each
of extended duration. Dr. Williams stated the following:
This 47 y/o alleges physical impairments only, but at GPCE, she was dx’ed
w/depression. MSCE dx’ed MDD, mod and GAD, but suggested that her clinical
presentation did not appear as impaired as the # and severity of reported sx’s
would suggest. MS was WML, and ADL’s appear to be impacted only by her
physical impairments. CL is given a semi-skilled RFC.
On the same date, Dr. Williams completed a mental RFC assessment stating Plaintiff had
moderate limitations in the following areas: the ability to maintain attention and concentration
for extended periods; the ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods; the ability to accept instructions and respond
appropriately to criticism from supervisors; and the ability to set realistic goals or make plans
independently of others. (Tr. 368-371). Dr Williams stated as follows:
the claimant is able to perform work where interpersonal contact is routine but
superficial, e.g. grocery store clerk; complexity of task is learned by experience;
several variables, uses judgment with limits; supervision required is little for
routine but detailed for non-routine.
(Tr. 370). On May 29, 2008, after reviewing all of the evidence of record, Dr. Paula Lynch
affirmed the assessment dated April 4, 2008. (Tr. 378).
On April 23, 2008, Plaintiff was seen at the Community Clinic due to lower back pain
around the kidney area, a low grade fever, and cloudy urine. (Tr. 330-334). Plaintiff underwent
a urine analysis. Plaintiff was prescribed an antibiotic.
On June 3, 2008, after reviewing all of the evidence of record, Dr. Jim Takach affirmed
Dr. Payne’s March 31, 2008 assessment. (Tr. 377). Dr. Takach made the following comments:
47 yo with a hx of LBP - imaging(+) for LS DDD and Spondylolisthesis - clinical
exams: myofascial pain w/o NM loss - (I)slightly antalgic gait - conservative Rx added hx of obesity (BMI-42) - at recon: Rx for mild asthma - overall - NO
change in status - therefore - after review of the MER in the file- the assessment
of 3/31/2008 is affirmed for residual functional status.
By letter dated October 12, 2009, Plaintiff’s counsel submitted additional evidence to the
Appeals Council. (Tr. 211). The additional medical evidence was a MRI of the lumbar spine
dated June 22, 2009. (Tr. 379-382). The MRI revealed the following:
1. L5-S1 grade 1 spondylolisthesis with high-grade or foraminal stenosis as the
2. L3-4 foraminal narrowing, due to right far lateral disk protrusion.
3. L4-5 moderate biforaminal narrative facet hypertrophy.
4. Lobulated, 8-cm diameter, fluid/fact, signal, mass in the right adnexa, for
which benign dermoid cyst is favored.
5. 2.4 diameter, intramural uterine mass arising from the posterior fundus of the
uterus, consistent with benign leiomyoma formation.
This Court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner's decision. The ALJ's decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d
964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports the
Commissioner's decision, the Court may not reverse it simply because substantial evidence exists
in the record that would have supported a contrary outcome, or because the Court would have
decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other
words, if after reviewing the record it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ
must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); see also 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 her disability, not simply her impairment, has lasted for
at least twelve consecutive months.
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 her 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 her age, education, and experience. See 20 C.F.R. §§ 404.1520, 416.920. Only
if the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work
experience in light of 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.
Plaintiff contends that the ALJ erred in concluding that the Plaintiff was not disabled.
Defendant argues substantial evidence supports the ALJ’s determination.
In order to have insured status under the Act, an individual is required to have twenty
quarters of coverage in each forty-quarter period ending with the first quarter of disability. 42
U.S.C. § 416(i)(3)(B). Plaintiff last met this requirement on June 30, 2007. Regarding Plaintiff’s
application for DIB, the overreaching issue in this case is the question of whether Plaintiff was
disabled during the relevant time period of June 20, 2007, her amended alleged onset date of
disability, through June 30, 2007, the last date she was in insured status under Title II of the Act.
In order for Plaintiff to qualify for DIB she must prove that, on or before the expiration
of her insured status, she was unable to engage in substantial gainful activity due to a medically
determinable physical or mental impairment which is expected to last for at least twelve months
or result in death. Basinger v. Heckler, 725 F.2d 1166, 1168 (8th Cir. 1984). The medical
evidence of Plaintiff's condition subsequent to the expiration of Plaintiff's insured status is
relevant only to the extent it helps establish Plaintiff's condition before the expiration. Id. at
Subjective Complaints and Credibility Analysis:
We now address the ALJ's assessment of Plaintiff's subjective complaints. The ALJ was
required to consider all the evidence relating to Plaintiff’s subjective complaints including
evidence presented by third parties that relates to: (1) Plaintiff's daily activities; (2) the duration,
frequency, and intensity of her pain; (3) precipitating and aggravating factors; (4) dosage,
effectiveness, and side effects of her medication; and (5) functional restrictions. See Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). 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. Id. 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).
After reviewing the administrative record, it is clear that the ALJ properly evaluated
Plaintiff’s subjective complaints. Although Plaintiff contends that her impairments were
disabling, the evidence of record does not support this conclusion.
With regard to Plaintiff’s back, the ALJ noted that the record revealed that Plaintiff did
not seek consistent treatment for her alleged disabling back impairment. See Novotny v. Chater,
72 F.3d 669, 671 (8th Cir. 1995) (per curiam) (failure to seek treatment was inconsistent with
allegations of pain). The ALJ pointed out that while Plaintiff was incarcerated from June of
2007, through February of 2008, Plaintiff did not seek treatment for her alleged back pain. It is
also noteworthy that after Plaintiff was released in February of 2008, Plaintiff did seek treatment
at the Community Clinic for nausea, vomiting, diarrhea and symptoms associated with a urinary
tract infection. Plaintiff did not, however, seek treatment for her allegedly disabling back pain.
The record further reveals that Plaintiff was not taking any prescription medication for her
allegedly disabling pain. See Rankin v. Apfel, 195 F.3d 427, 430 (8th Cir. 1999) (infrequent use
of prescription drugs supports discrediting complaints). The Court finds, based on the evidence
recited above, that there is substantial evidence supporting the ALJ's finding that Plaintiff’s back
impairment was not disabling during the relevant time period. See Lawrence v. Chater, 107 F.3d
674, 676 (8th Cir. 1997) (upholding ALJ's determination that claimant was not disabled even
though she had in fact sustained a back injury and suffered some degree of pain); Woolf v.
Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993) (holding that, although plaintiff did have degenerative
disease of the lumbar spine, the evidence did not support a finding of disabled).
With regard to Plaintiff’s alleged knee impairment, the record revealed that Plaintiff
sought treatment for her knee pain once while incarcerated. At that time, Dr. Bowler found no
evidence of swelling or deformity and prescribed Ibuprofen. The medical evidence does not
show that Plaintiff sought treatment for her alleged knee impairment after she was released in
February of 2008. Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir.1997) (failure to seek
medical assistance contradicts subjective complaints).
While Plaintiff alleged an inability to seek treatment due to a lack of finances, the record
is void of any indication that Plaintiff had been denied treatment due to the lack of funds.
Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding that lack of evidence that
plaintiff sought low-cost medical treatment from her doctor, clinics, or hospitals does not support
plaintiff’s contention of financial hardship). The record also revealed that Plaintiff was able to
come up with the funds to support her smoking habit.
As for Plaintiff’s alleged depression, there is no medical evidence of record revealing that
Plaintiff sought on-going and consistent treatment for her alleged mental impairments during the
relevant time period. See Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (holding that lack
of evidence of ongoing counseling or psychiatric treatment for depression weighs against
plaintiff’s claim of disability). Plaintiff also testified at the hearing the Lexapro was helping with
her depression. Brace v. Astrue, 578 F.3d 882, 885 (8th Cir. 2009) (“If an impairment can be
controlled by treatment or medication, it cannot be considered disabling.”)(citations omitted).
After reviewing the entire evidence of record, the Court finds substantial evidence to support the
ALJ’s determination that Plaintiff does not have a disabling mental impairment.
Plaintiff's subjective complaints are also inconsistent with evidence regarding her daily
activities. The record revealed that in March of 2008, Plaintiff, who drove herself to the
consultative evaluation, reported to Dr. Efird that she could perform most activities of daily
living satisfactorily. Plaintiff also reported that she interacted with the family that she lived with
and that she went to church. In a Function Report dated March 6, 2008, Plaintiff indicated that
she did not do any household chores, but she indicated she was able to take care of her personal
needs; that she spent her time reading and watching television; and that she was able to spend
time sitting and talking with others. (Tr. 161-168). This level of activity belies Plaintiff’s
complaints of pain and limitation and the Eighth Circuit has consistently held that the ability to
perform such activities contradicts a Plaintiff’s subjective allegations of disabling pain. Hutton
v. Apfel, 175 F.3d 651, 654-655 (8th Cir. 1999) (holding ALJ’s rejection of claimant’s application
supported by substantial evidence where daily activities– making breakfast, washing dishes and
clothes, visiting friends, watching television and driving-were inconsistent with claim of total
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she
has not established that she is unable to engage in any gainful activity. Accordingly, the Court
concludes that substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective
complaints were not totally credible.
We next turn to the ALJ’s assessment of Plaintiff’s RFC. 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). “[T]he ALJ is [also] required to set forth
specifically a claimant’s limitations and to determine how those limitations affect his RFC.” Id.
"It is the ALJ's function to resolve conflicts among 'various treating and examining
physicians.'" Bentley v. Shalala, 52 F.3d 784, 787 (8th Cir. 1995). "[A] treating physician's
opinion is given 'controlling weight' if it 'is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence.' "
Dolph v. Barnhart, 308 F.3d 876, 878 (8th Cir.2002). A treating physician's opinion "do[es] not
automatically control, since the record must be evaluated as a whole." Bentley v. Shalala, 52 F.3d
784, 786 (8th Cir.1995).
In finding Plaintiff able to perform sedentary work with limitations, the ALJ considered
Plaintiff’s subjective complaints, the medical records of her treating and examining physicians,
and the evaluations of the non-examining medical examiners.
Plaintiff argues that the ALJ sought no alternative opinion when he discounted Dr.
Kilgore’s May of 2005 assessment that Plaintiff had the following permanent restrictions: no
lifting, pulling, or pushing items over twenty pounds; no prolonged periods of standing, sitting
and walking; and no bending, stooping or twisting; and that the ALJ simply imposed his own
opinion as to Plaintiff’s limitations. In determining Plaintiff’s RFC, the ALJ stated that he did
not give Dr. Kilgore’s opinion significant weight because Dr. Kilgore’s treatment history with
Plaintiff was brief (April 2004 until July 2004). The ALJ also pointed out that Dr. Kilgore’s
opinion was rendered two years prior to the alleged onset date, and that there was no evidence that
Plaintiff sought continued treatment for her back pain or that she underwent surgery.
In finding Plaintiff could do sedentary work, the ALJ used the March of 2008 opinion of
Dr. Conover, who examined Plaintiff prior to opining as to Plaintiff’s limitations due to her
impairments. Dr. Conover not only examined Plaintiff, he reviewed the medical evidence which
included the opinion of Dr. Kilgore, as well as the May 2004 MRI that Dr. Kilgore used to give
his opinion. After examining Plaintiff and her medical records, Dr. Conover opined that Plaintiff
could handle, finger, see, hear and speak; that Plaintiff was moderately limited in her ability to
walk and stand; and that Plaintiff was severely limited in her ability to lift and carry. The ALJ
also used the opinion of the non-examining medical professionals, as well as the opinion of Dr.
Anderson who opined in June of 2007 that Plaintiff should avoid prolonged crawling; that
Plaintiff was restricted from assignments requiring prolonged crawling, stooping, running,
jumping, walking, or standing; and that Plaintiff should avoid strenuous activity, and restricted
Plaintiff from performing any assignment requiring strenuous physical activity for periods in
excess of fours hours.
As for Plaintiff’s obesity, the Court notes that Plaintiff did not allege obesity in her
application and did not testify to any limitations caused by her obesity at the administrative
hearing. See Thompson v. Astrue, 226 Fed. Appx. 617, 620 (8th Cir.2007) (holding that the ALJ
did not err in failing to obtain the testimony of a VE where the claimant failed to claim obesity
as a disabling condition).
Based on our above discussion of the medical evidence and Plaintiff's activities throughout
the relevant time period, the Court finds substantial evidence of record to support the ALJ's RFC
Hypothetical Question to the Vocational Expert:
After thoroughly reviewing the hearing transcript along with the entire evidence of record,
the Court finds that the hypothetical the ALJ posed to the vocational expert fully set forth the
impairments which the ALJ accepted as true and which were supported by the record as a whole.
Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds that the
vocational expert's testimony constitutes substantial evidence supporting the ALJ's conclusion that
Plaintiff's impairments did not preclude her from performing work in assembly production, and
as a hand packer/packager . Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from
vocational expert based on properly phrased hypothetical question constitutes substantial
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision denying the Plaintiff benefits, and thus the decision should
be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be dismissed
DATED this 15th day of May, 2012.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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