Carter v. Commissioner of Social Security
MEMORANDUM OPINON AND ORDER - The decision of the ALJ must be affirmed. Judgment will be entered in favor of the Commissioner and against Carter. Signed by Magistrate Judge Leonard T Strand on 08/20/2012. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
MICHAEL STEWART CARTER,
MEMORANDUM OPINION AND
MICHAEL J. ASTRUE,
Commissioner of Social Security,
The plaintiff, Michael Carter, seeks judicial review of a final decision of the
Commissioner of Social Security (the “Commissioner”) denying his applications for
disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”)
pursuant to Titles II and XVI of the Social Security Act.
42 U.S.C. §§ 405(g),
Carter contends the administrative record (“AR”) does not contain
substantial evidence to support the Commissioner’s decision that he is not disabled.
Carter was born in 1964, has a GED, and previously worked as a cable installer,
warehouse worker, cook helper, cleaner, furniture mover and stocker. AR 452. On
February 5, 2008, he applied for DIB and SSI, alleging disability beginning on April
28, 2004, due to constant low back pain and right leg and hip pain. AR 187-95, 435.
The Commissioner denied Carter’s applications initially and again on reconsideration.
AR 73-76, 80-93. Carter requested a hearing before an Administrative Law Judge
(“ALJ”). AR 94. The hearing was held on March 11, 2010, before ALJ G. Roderic
Anderson. AR 27-54. Carter testified along with his girlfriend, Wanda Abraham, and
a vocational expert (“VE”). Id. On July 16, 2010, the ALJ issued a decision finding
Carter not disabled since the alleged disability onset date of April 28, 2004. AR 9-19.
Carter sought review of this decision by the Appeals Council, which denied review on
July 5, 2011. AR 1-3. Thus, the ALJ’s decision became the final decision of the
Commissioner. 20 C.F.R. §§ 404.981, 416.1481.
On August 31, 2011, Carter filed a complaint in this court seeking review of the
ALJ’s decision. On October 6, 2011, with the parties’ consent, United States District
Judge Mark W. Bennett transferred the case to Chief United States Magistrate Judge
Paul A. Zoss for final disposition and entry of judgment. On June 8, 2012, the case
was reassigned to the undersigned. The parties have briefed the issues, and the matter
is now fully submitted.
Summary of Evidence
A. Medical History
Carter states he injured his lower back on April 28, 2004, while lifting a 180pound boulder in the course of his work duties. AR 492. In May 2004, Carter saw
Dr. Charles Buck at Mercy Hospital in Iowa City, Iowa, for his back pain. Dr. Buck
ordered an x-ray of Carter’s spine. The x-ray revealed that there was a mild convexity
of the mid-lumbar spine directed toward the patient’s left side.
alignment and disc spaces were well maintained and no congenital aberrations were
found. AR 474.
On July 30, 2004, Carter saw Dr. Dale Bertram at Concentra Medical Center in
Madison, Wisconsin, where he was currently residing. Carter mentioned the April 28,
2004, incident and told the doctor about a previous work-related back injury he
suffered five years earlier. He complained of back pain that was radiating down both
thighs. AR 492. Dr. Bertram performed a physical exam during which he found
“[m]oderate diffuse and nonspecific ‘soreness’ as well as increased muscle
tone/tension…bilaterally in the L1 to S1 lumbar area.” Id. Dr. Bertram diagnosed
Carter with lumbar strain and prescribed pain relievers and a muscle relaxant. Dr.
Bertram also referred Carter to physical therapy for evaluation, treatment, and possible
future therapy planning. AR 493. Carter was released to return to work that day with
no work activity restrictions. AR 493.
At a follow-up appointment with Dr. Bertram on August 4, 2004, Carter
reported decreased pain and stated he was no longer experiencing radiating pain down
each leg. AR 502. The physical exam revealed “[m]inimal diffuse and nonspecific
‘soreness’” with all other extremities and signs appearing normal. Id. Carter stated his
medication was providing adequate relief without any side effects.
released Carter that day with no work activity restrictions, and Carter again followed
up with a physical therapist. Id.
On August 10, 2004, Dr. Bertram declared Carter’s lumbar strain resolved. AR
He was released from care with regular unrestricted work activity and no
permanent partial disability. AR 509. Carter’s physical therapy goals were also met
and physical therapy was discontinued. AR 505.
Carter did not see a doctor again until March 9, 2005, when he visited the
Emergency Treatment Center of University of Iowa Hospitals and Clinics (“UIHC”).
He was diagnosed with acute exacerbation of chronic back pain and prescribed pain
relievers and a muscle relaxant. AR 481. He was given a doctor’s note that excused
him from work until March 12, 2005, with a change in work duties to “light duty—no
lifting over 10 pounds until seen in ortho.” AR 480. Appointments were scheduled for
him on March 31, 2005, at the back clinic at UIHC. AR 482-83.
Later that month, Carter saw Dr. Buck again through the Mercy Occupational
Health Program. Dr. Buck noted the following work restrictions: Carter could lift,
push, and pull 10 to 20 pounds for a third of a regular work day; and he could bend
and twist his back for a third of a regular work day. AR 486. Dr. Buck ordered an
MRI, suggested Carter complete physical therapy twice a week for two weeks, and
prescribed a muscle relaxant and Ibuprofen. AR 477-79.
Carter next saw a doctor in June 2005 at Siouxland Community Health Center.
Carter still complained of back pain at this appointment and said he re-injured it while
wrestling around and playing with his children. AR 634. He also mentioned that he
had injured his back at work, but had chronic back pain since 1995 and was trying to
get disability. Carter was prescribed pain and anti-inflammatory medication. AR 634.
Dr. Douglas Martin with St. Luke’s Occupational Medical Clinic performed a
Comprehensive Examination Report at the request of the Iowa Department of Disability
Determination Services Bureau on July 6, 2005, regarding a previous disability
application Carter had filed.
musculoskeletal low back pain.
Dr. Martin assessed Carter with
With respect to Carter’s remaining functional
capacities, Dr. Martin stated,
[I]t is unclear to this examiner whether this gentleman has had adequate
evaluation and treatment for his low back problems in the past. However,
I can say that it would appear these are primarily muscular in nature.
There is nothing on physical examination today to suggest any type of
In July 2006, Dr. Martin performed another comprehensive examination and
found very little change. AR 518. He estimated Carter would be able to lift and carry
35 to 40 pounds occasionally, 20 pounds frequently, and 5 to 10 pounds constantly.
AR 518. He also suggested that stooping, climbing, kneeling, and crawling activities
should be reduced to about two-thirds of what would be considered normal. AR 518.
Otherwise he had no concerns with respect to Carter’s ability to stand, move about,
walk, or sit. Id.
Starting in December 2005, Carter sought emergency treatment various times for
his back pain. He first visited St. Luke’s Regional Medical Center complaining that he
had injured his back while shoveling snow. AR 614. He was prescribed pain and antiinflammatory medication and instructed to follow-up at Siouxland Community Health
Center within two days. AR 613-18. There is no evidence in the record that Carter
sought a follow-up appointment. In July 2006, Carter reported to the emergency room
at Mercy Medical Center for lower back pain radiating down his right leg. AR 536.
He was given an anti-inflammatory injection and prescribed anti-inflammatory
medication. Noting that he did not have a primary care doctor, the physician advised
Carter to follow-up at Siouxland Community Health Center within a week. AR 537.
There is no evidence in the record that Carter sought a follow-up appointment. Carter
again reported to the emergency department at St. Luke’s Regional Medical Center in
December 2006 with lower back pain. He was diagnosed with lumbar strain, and
prescribed pain relievers and a muscle relaxant. AR 606.
Carter also alleged a mental impairment of depression in December 2006. AR
544. He was sent to Michael Baker, Ph.D. for a consultative examination. AR 54143.
Dr. Baker concluded that with regard to mental limitations related to work
Mr. Carter would seem to have sufficient ability to remember and
understand instructions, procedures, and locations. There is no indication
of impairment of ability to maintain attention, concentration and pace for
carrying out instructions. He interacted appropriately during this session
and gives no significant evidence of difficulty doing so. There is also a
lack of indication of judgment being significantly affected by changes in
In January 2007, Carter sought treatment at Siouxland Community Health
Center. He described his back pain as 8.5 out of 10. The physician noted some
tenderness of the lumbosacral midline area and over the right SI. The straight leg raise
test was negative for radiculopathy but produced pain of the lower back. Carter was
prescribed a pain reliever and instructed to follow-up in two months. AR 638-39.
Carter followed up at Siouxland Community Health Center once a month for the next
four months. AR 635-37.
In February 2007, Carter reported having occasional low back pain with
radiation to either leg but nothing consistent. He said he had discomfort if he was
lifting certain things like an aquarium. AR 637. In April 2007, Carter was told he
would not be able to take any more acetaminophen-hydrocodone as he had previously
been prescribed. The doctor suggested a combination of Ibuprofen and Tylenol along
with back exercises and application of heat and ice. AR 635. Carter was instructed to
schedule a follow-up appointment two to three months later.
On April 30, 2007, Carter reported to the emergency room at Mercy Medical
Center claiming his back pain worsened after running to catch the bus the day before.
AR 591. The physician noted he appeared to be in mild discomfort but could get
around fairly easily. Id. She noted that he had muscle spasms on the right paraspinal
He was prescribed pain relievers and a muscle relaxant and
instructed to follow-up with his physician at Siouxland Community Health Center. AR
In May 2007, Carter began seeing orthopaedic specialist Dr. Robert Yang at
UIHC, who suggested an MRI to evaluate further treatment options. AR 661-64. The
MRI revealed signs of degenerative disc disease but no evidence of a neural element
compression. AR 659. Dr. Yang told Carter he was not a good surgical candidate and
suggested they try an epidural steroid injection. Id. Carter was given the epidural
steroid injection for his back pain in August 2007. His pain was completely relieved by
this procedure, but only for a short time. AR 655. Dr. Yang then recommended
electromyography (“EMG”) testing. AR 656. An EMG in October 2007 showed no
evidence of lumbosacral radiculopathy, which suggested the MRI scans were of
“uncertain clinical importance.” AR 653. Dr. Yang next recommended sacroiliac joint
injections. AR 653.
In December 2007, Carter sought emergency treatment for lower back pain
radiating down his right leg at St. Luke’s Regional Medical Center. He was given
morphine and prescribed a pain reliever. AR 603-04.
In January 2008, Carter returned to Dr. Yang for sacroiliac joint injections. AR
651-52. He was advised of post-injection activity limitations and instructed to follow
up by telephone one to two weeks later. AR 651.
A week later, Carter was traveling to Chicago and reported to an emergency
room along the way in Onawa, Iowa, describing his back pain as nine out of ten. AR
Carter stated his discomfort had started a week ago and was getting
progressively worse in his right low back area and radiating down his right leg. He
was prescribed a muscle relaxant and pain relievers and advised to rest and apply a
combination of ice and heat to his back. Id.
In May 2008, Carter returned to visit Dr. Yang. AR 703. He had another MRI,
and Dr. Yang noted that Carter’s pain seemed to be more in his hip joint. Carter had
an x-ray taken of his hip, which revealed coxa profunda1 with moderate degenerative
changes of the hip. AR 712. In June, he was treated with an injection and was able to
walk without the cane he had recently started using. Id.
The injection completely
relieved his pain for approximately three weeks. AR 705, 745.
In August 2008, Carter was referred to another specialist in the orthopaedics unit
of UIHC, Dr. Chris J. Van Hofwegen. During this visit, Carter reported that he used a
cane for long walks over the past four weeks and otherwise used it occasionally. AR
745. The notes indicate Carter could walk 30 to 60 minutes without support. AR 745.
Dr. Van Hofwegen concluded Carter had mild hip arthritis with symptoms that seemed
to be worse than the radiographs revealed. AR 748. He prescribed anti-inflammatory
medication and suggested “being aggressive about being active.” Id. Carter was then
scheduled for a follow-up four months later.
In January 2009, Carter sought emergency treatment at St. Luke’s Regional
Medical Center for his hip pain where he was diagnosed with hip strain and prescribed
anti-inflammatory medication and a muscle relaxant. AR 718-30. In February 2009,
he went to the emergency room at Mercy Medical Center for hip pain. AR 733-44. A
hip x-ray showed “questionable small spurs” but no issues with the acetabulum or
See Martin Beck et al., Mechanism of Femoroacetabular Impingement, in FEMOROACETABULAR IMPINGEMENT 9, 12
(Óliver Marín-Peña ed., 2012) (noting “coxa profunda” is a type of deep socket hip abnormality that causes pincer
impingement from overcoverage of the hip and can lead to osteoarthritis.)
femur. AR 738. He was prescribed anti-inflammatory and muscle relaxant medication
as well as a pain reliever. Id.
Carter returned to see his Dr. Van Hofwegen in April 2009. Dr. Van Hofwegen
noted that Carter walked with a minimal right hip lurch, but retained full range of
motion of his right knee and ankle.
Radiographs showed minimal
degenerative changes in the right hip and Carter was diagnosed with “[m]oderately
symptomatic right hip osteoarthritis with overlying pain.” Id. Dr. Van Hofwegen
suggested that he see the pain clinic or the physiatrist again, otherwise come back for a
follow-up in a couple of years. Id.
Carter visited the emergency room at Mercy Medical Center in December 2009
for right hip pain. AR 755-69. He was prescribed a pain reliever and advised to
follow up with a family physician or the orthopaedic specialist at UIHC to manage his
pain. AR 763.
In March 2010, UIHC advised Carter that recent tests indicated he had early
diabetes and that he should make certain changes to his diet. AR 770-73.
B. State Agency Medical Consultants
As part of previous disability applications, state agency medical consultants
performed physical residual functional capacity (“RFC”) assessments in August 2005,
July 2006, August 2006 (on review), and January 2007 (on reconsideration). Physical
RFC assessments for Carter’s current application were performed in March 2008 and
June 2008 (on reconsideration). Upon reconsideration of his RFC in December 2006,
Carter also alleged a mental impairment of depression. A consultative examination was
scheduled and a psychiatric review technique was performed in January 2007.
The first physical RFC assessment in August 2005 concluded Carter could
occasionally lift or carry 20 pounds and could frequently lift or carry 10 pounds. He
could also sit and/or stand about six hours in an eight-hour workday. AR 454. These
conclusions were based on an x-ray from May 2004, the examination performed by Dr.
Martin in July 2005, and Carter’s self-reported activities of daily living including
stretching, cooking, cleaning, laundry, watching TV, shopping, and visiting with
others. AR 241-48, 455. The examiner gave more weight to the objective evidence in
the file than Carter’s subjective complaints because “[t]he credibility of his allegations
[was] further reduced due to lack of treatment for his condition.” AR 455.
On July 18, 2006, another physical RFC assessment was performed by Dr.
James Wilson. AR 524-25. Dr. Wilson concluded that Carter could occasionally lift
or carry 50 pounds and frequently lift or carry 25 pounds. He also thought that Carter
could sit and/or stand for six hours in an eight-hour workday.
assessment was based on a physical examination and a review of the objective medical
evidence. During his physical examination Dr. Wilson found four out of five positive
Waddell signs2 with no indication of muscle spasms or nerve damage/muscle wasting.
Dr. Wilson also found that although Carter reported symptoms 24 hours a day and
seven days a week with frequent muscle spasms, the objective physical findings failed
to support the severity or even presence of those symptoms. AR 528. In addition, Dr.
Wilson noted the failure to seek ongoing treatment was not consistent with the extreme
functional limitations alleged by Carter.
Any inconsistencies with examining
sources were attributed to the lack of objective findings and the erosion of Carter’s
credibility at the time of the examination. AR 529. This assessment was reviewed by
Waddell signs are an examination technique used for patients with low back pain. The technique involves five
different tests that are useful in determining whether the patient’s response to the physical test is consistent with
the signs and symptoms of low back pain or can be attributed to a psychological influence. A positive sign
suggests that the response is psychological and three or more of the five types is clinically significant. See Gordon
Waddell et al., Nonorganic Physical Signs in Low-Back Pain, 5 SPINE 117 (1980). Dr. Wilson performed the
Waddell signs technique and noted:
Claimant self limited on ROM testing, which was considered invalid by the examining source.
SLR testing was inconsistent with seat vs. supine positions. Claimant also complained of low
back pain on axial impression and w/ simulated rotation. Claimant’s report of numbness in the
lower extremities were in a nonanatomical pattern, further eroding claimant’s credibility.
Claimant was able to heel-toe walk and perform tandem gait without apparent difficulty. AR
Dr. Herbert Waxman in August 2006, who affirmed Dr. Wilson’s conclusions. AR
Philip Laughlin, Ph.D., performed a psychiatric review technique in January
2007 after reviewing Dr. Baker’s report, function reports from Carter and a third party,
and medical records from treating sources. AR 554-67. Dr. Laughlin found Carter
had no severe mental impairments but confirmed adjustment disorder with depressed
mood as diagnosed by Dr. Baker. AR 557. He concluded Carter had mild functional
limitations in activities of daily living, maintaining social functioning, and maintaining
concentration, persistence, or pace with no episodes of decompensation. AR 564.
Dr. John May was asked to reconsider Carter’s physical RFC in January 2007.
AR 546-53. The only new medical evidence at that time was from Carter’s visit to the
emergency room at Mercy Medical Center in July 2006. AR 547. Dr. May concluded
that there was no change to Carter’s physical RFC as determined by Dr. Wilson in July
2006. AR 547-48.
Dr. May completed another physical RFC assessment in March 2008. At this
time Carter’s primary diagnosis was possible lumbar degenerative disc disease and
sacroilitis. AR 671. The record contained treatment notes from UIHC up to February
11, 2008. AR 680. Dr. May concluded Carter could occasionally lift or carry 20
pounds, could frequently lift or carry 10 pounds, and could stand and/or sit six hours in
an eight-hour workday. AR 672. Dr. May noted there was little objective medical
evidence to support Carter’s complaints of back pain until August 2007 when Carter
had an MRI, which revealed some disc degeneration without evidence of neural
Dr. May also referenced the negative EMG, physical
examination results and Carter’s sacroiliac joint injections. He reviewed Carter’s most
recent function report noting that Carter reported pain but was able to tend to his
personal needs, cook, do laundry, clean the house, shop, walk half a block, and
socialize. He also noted that Carter used a cane but it had not been ordered by a
treating source and Carter could ambulate without it. Finally, he recognized that Carter
was never considered a surgical candidate and no treating sources had indicated
physical limitations be placed on Carter due to his pain. Dr. May concluded that it
would be reasonable to assume that while Carter’s back pain would cause some
limitation based on his previous treatment, he was capable of the RFC outlined. Id.
Dr. May’s RFC assessment was submitted for reconsideration by Dr. Everett Nitzke in
June 2008. Dr. Nitzke affirmed the assessment as written. AR 683.
C. Plaintiff’s Testimony
At the administrative hearing, Carter testified that his past jobs included heavy
labor jobs and factory work where he would lift at least 150 pounds on his own. AR
36-37. Carter said he initially injured his back in 1995 but did not realize the extent of
his injury until he started seeing doctors in 2004. AR 37. He indicated that doctors
now thought that spurs on his right hip might be causing him pain. Id. Carter said the
doctors told him he was too young for hip replacement and his hip spurs could not be
shaven down. AR 38. He described his pain as sharp and achy. Id.
Carter stated doctors in Iowa City advised him to walk with a cane or a crutch
and he has been using a crutch at all times for the past six months because of the pain
in his legs. Id. He testified he is limited to sitting on his left side because he cannot
put pressure on his right hip. He explained that after five or ten minutes he has to shift
further to his left side or lay down. Id. Standing also causes him pain. He is able to
lift 10 to 30 pounds, but only for a short time. AR 40, 42. Carrying anything would
be difficult because of his need to use a crutch. AR 42.
As for his daily activities, Carter said he spends most of his day lying down and
that he reads or watches movies. AR 41. He said he tries to go shopping, but after
walking around for five to ten minutes, he has to sit down. Id. He stated he was
currently taking Tramadol (a pain reliever), but it did not give him any relief. AR 41,
D. Wanda Abraham’s Testimony
Carter’s girlfriend and roommate, Wanda Abraham, was also present at the
administrative hearing. AR 45. Ms. Abraham works as a cashier and has known
Carter for seven years. Id.
Ms. Abraham testified that Carter has trouble getting out
of bed in the morning and cannot walk or stand for more than ten minutes. AR 46.
She stated he can sit up for only five or ten minutes before he has to lie down on his
left side. Id. She explained that on a bad day Carter’s activity level is “basically
none” and he sleeps, reads, or watches television all day while lying down. Id. She
said he can clean dishes but to do so he must sit in a chair leaning on his left side. Id.
She further elaborated that he does not sleep well and when he is lying down during the
day he constantly has to re-shift his position. AR 46-47.
E. Vocational Expert Testimony
A vocational expert also testified at the hearing. He stated Carter would not be
able to perform his past work based on the alleged limitations and an assumption that
Carter’s testimony was credible because it indicated he spent most of his waking hours
lying down. AR 49. The ALJ then gave the VE a hypothetical question asking if a
person of Carter’s same age, with the same education and transferrable skills who was
able to work at a light level with a sit-stand option that entailed no climbing, repetitive
bending, twisting or turning, crawling, squatting, kneeling, or balancing would be able
to find such a job in the national or regional economy. AR 50. The VE indicated that
jobs as a production assembler and hand packager fit this description and significant
numbers for these jobs were available in the four-state region of Iowa, Nebraska,
Missouri, and Kansas and in the national economy. AR 51.
The ALJ also asked if jobs were available for a sedentary worker with the same
limitations and including a sit-stand option. Id. The VE identified jobs as a hand
packager, unskilled office helper, and production assembler were available for a
sedentary worker. Id. The ALJ then asked if work would be available for someone
who had to recline and rest frequently due to inability to relieve chronic pain, fatigue,
or medication side-effects and who was unable to sustain the concentration, persistence,
and pace on a continuing routine basis to complete the required tasks of an eight-hour
workday. AR 51-52. The VE indicated that no jobs would be available for someone
with these limitations. AR 52. When asked by Carter’s attorney if the jobs of a
production assembler or hand packager could be performed by someone who needed
the aid of a crutch, the VE answered those jobs could not be performed with a crutch
because the crutch would totally occupy the use of a hand. AR 52.
Summary of ALJ’s Decision
The ALJ made the following findings:
(1) The claimant met the insured status requirements of the Social
Security Act through June 30, 2010.
(2) The claimant has not engaged in substantial gainful activity since April
28, 2004, the alleged onset date.
(3) The claimant has the following severe impairments: degenerative disc
disease of the lumbar spine and degenerative joint disease of the right hip.
(4) The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(5) After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform sedentary
to light work as defined in 20 C.F.R. 404.1567(a), 404.1567(b),
416.967(a), and 416.967(b) except he needs a sit/stand option and is
precluded from climbing stairs or ladders; repetitive bending, twisting, or
turning; crawling, stooping, squatting, kneeling, or balancing.
(6) The claimant is unable to perform any past relevant work.
(7) The claimant was born on March 15, 1964 and was 40 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date.
(8) The claimant has at least a high school education and is able to
communicate in English.
(9) Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills.
(10) Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that claimant can perform.
(11) The claimant has not been under a disability, as defined in the Social
Security Act, from April 28, 2004 through the date of this decision.
In assessing Carter’s credibility, the ALJ noted that while he did not doubt that
Carter experienced some discomfort, his allegation of limitations and pain level that
would preclude all types of work was inconsistent with the objective medical evidence,
the absence of more aggressive treatment, medical opinions, and the evidence as a
whole. AR 16. He further elaborated:
The record reflects the claimant sought minimal medical treatment and
failed to take his treating medications on a regular basis. None of the
claimant’s treating sources assessed significant functional limitations
beyond the above residual functional capacity assessment or recommended
he limit his activities, seek further treatment or surgery, use a cane, or lie
down and rest to the degree alleged. Furthermore, the objective medical
evidence fails to support the claimant’s allegation of disability.
The ALJ also found Carter’s daily functioning had not been affected as
severely as alleged.
He noted that when Carter applied for disability he was still
working part-time as a laborer, and in February 2008, Carter reported having no
problems with personal care, preparing meals, washing dishes, doing housework and
laundry, going shopping, and playing cards, dominoes, or darts.
January 2010, Carter also stated he would occasionally clean dishes, do laundry, cook,
read, go grocery shopping, and attend church. AR 17.
The ALJ also considered testimony and a third party function report from
Carter’s girlfriend, Wanda Abraham, who lives with Carter. AR 14. At the hearing
Ms. Abraham testified that Carter lies down the entire day, constantly shifts positions,
and can only sit, stand, and walk about five to ten minutes before needing to change his
In a third party function report completed in November 2006, Ms.
Abraham reported that Carter was able to go shopping, prepare meals, and enjoy
hobbies such as watching television and cooking without any change since his medical
condition began. Id. In that report, she listed no problems with Carter’s ability to
perform personal care or household chores. Id. The ALJ did not give great weight to
Ms. Abraham’s testimony because he found it inconsistent with the record as a whole.
The ALJ gave great weight to the physical RFC assessments performed by the
state agency medical consultants finding that their conclusions were consistent with the
record as a whole, both at the time of their review and through the date of the decision.
AR 14. The ALJ also gave substantial weight to the opinions of Dr. Buck and Dr.
Martin because they were supported by the evidence and consistent with the record as a
whole. They were also generally consistent with the state agency medical consultants’
assessments that Carter would be able to perform light work. The ALJ also considered
treatment notes from the various emergency rooms Carter reported to and from
Siouxland Community Health Center and UIHC where Carter saw specialists for his
back and hip. AR 15-16.
Disability Determinations and the Burden of Proof
A disability is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or that has lasted or can be expected to last for a
continuous period of not less than twelve months.”
42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the
claimant is “not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists . . . in significant numbers either in the region where such individual lives
or in several regions of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the
Social Security Act, the Commissioner follows a five-step sequential evaluation process
outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500
F.3d 705, 707 (8th Cir. 2007). First, the Commissioner will consider a claimant’s
If the claimant is engaged in substantial gainful activity, then the
claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment is
not severe if it amounts only to a slight abnormality that would not significantly limit
the claimant’s physical or mental ability to do basic work activities.” Kirby, 500 F.3d
at 707; see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities
and aptitudes include (1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing,
and speaking; (3) understanding, carrying out, and remembering simple instructions;
(4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual
work situations; and (6) dealing with changes in a routine work setting.
§§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141,
107 S. Ct. 2287, 2291 (1987). “The sequential evaluation process may be terminated
at step two only when the claimant’s impairment or combination of impairments would
have no more than a minimal impact on her ability to work.” Page v. Astrue, 484 F.3d
1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will
consider the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled, regardless of age, education, and work experience. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v.
Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s RFC to determine the claimant’s “ability to meet the physical, mental,
sensory, and other requirements” of the claimant’s past relevant work. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform
exertional tasks or, in other words, what the claimant can still do despite his or her
physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003)
(internal quotation marks omitted); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
The claimant is responsible for providing evidence the Commissioner will use to make
a finding as to the claimant’s RFC, but the Commissioner is responsible for developing
the claimant’s “complete medical history, including arranging for a consultative
examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.”
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non17
medical evidence and other evidence listed in the regulations. See id. If a claimant
retains the RFC to perform past relevant work, then the claimant is not disabled. Id.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the
claimant to perform past relevant work, then the burden shifts to the Commissioner to
prove that there is other work that the claimant can do, given the claimant’s RFC as
determined at Step Four, and his or her age, education, and work experience. See
Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must
prove not only that the claimant’s RFC will allow the claimant to make an adjustment to
other work, but also that the other work exists in significant numbers in the national
economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to
other work that exists in significant numbers in the national economy, then the
Commissioner will find the claimant is not disabled. If the claimant cannot make an
adjustment to other work, then the Commissioner will find that the claimant is disabled.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
At Step Five, even though the
burden of production shifts to the Commissioner, the burden of persuasion to prove
disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
The Substantial Evidence Standard
The court will affirm the Commissioner’s decision “if it is supported by
substantial evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577
(8th Cir. 2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
conclusive . . . .”). “Substantial evidence is less than a preponderance, but enough that
a reasonable mind might accept as adequate to support a conclusion.” Lewis, 353 F.3d
at 645. The Eighth Circuit explains the standard as “something less than the weight of
the evidence and [that] allows for the possibility of drawing two inconsistent
conclusions, thus it embodies a zone of choice within which the [Commissioner] may
decide to grant or deny benefits without being subject to reversal on appeal.”
Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994).
In determining whether the Commissioner’s decision meets this standard, the
court considers “all of the evidence that was before the ALJ, but it [does] not re-weigh
the evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court
considers both evidence which supports the Commissioner’s decision and evidence that
detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court
must “search the record for evidence contradicting the [Commissioner’s] decision and
give that evidence appropriate weight when determining whether the overall evidence in
support is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing
Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must
apply a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health
& Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates
v. Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.”
Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186,
188 (8th Cir. 1994)).
Instead, if, after reviewing the evidence, the court finds it
“possible to draw two inconsistent positions from the evidence and one of those
positions represents the Commissioner’s findings, [the court] must affirm the
[Commissioner’s] denial of benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v.
Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). This is true even in cases where the court
“might have weighed the evidence differently.” Culbertson, 30 F.3d at 939 (quoting
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)). The court may not reverse
the Commissioner’s decision “merely because substantial evidence would have
supported an opposite decision.” Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
1984); see Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative
decision is not subject to reversal simply because some evidence may support the
A. Carter’s Credibility
Carter argues the ALJ failed to consider his subjective complaints of pain and
inability to function due to his back and hip impairments and erred in finding that
Carter’s subjective complaints were not entirely credible. He specifically argues that
his subjective complaints were consistent with the medical records and the ALJ erred
by failing to provide reasons for discrediting the testimony and to set forth the
The Commissioner responds by stating the ALJ properly
considered and listed inconsistencies between Carter’s subjective allegations and the
objective medical evidence to support his credibility determination.
“The credibility of a claimant’s subjective testimony is primarily for the ALJ to
decide, not the courts.” Baldwin, 349 F.3d at 558 (citing Benskin v. Bowen, 830 F.2d
878, 882 (8th Cir. 1987)). The court will therefore defer to the ALJ’s credibility
determinations so long as they are supported “by good reasons and substantial
evidence.” Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). An ALJ may
discount a claimant’s subjective complaints if there are inconsistencies in the record as
a whole. Id. To evaluate a claimant’s credibility, the ALJ uses the test laid out in
Polaski v. Heckler which requires the ALJ to consider:
(1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of pain; (3) the precipitating and aggravating factors; (4) the
dosage, effectiveness, and side effects of medication; and (5) any
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). “Other relevant factors
include the claimant’s relevant work history, and the absence of objective medical
evidence to support the complaints.” Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir.
2008) (quoting Wheeler v. Apfel, 224 F.3d 891, 895 (8th Cir. 2000)). An ALJ is not
required to “discuss methodically each Polaski consideration, so long as he
acknowledged and examined those considerations before discounting the [claimant]’s
subjective complaints.” Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). If an ALJ
discounts a claimant’s subjective complaints, he or she is required to “detail the reasons
for discrediting the testimony and set forth the inconsistencies found.” Ford v. Astrue,
518 F.3d 979, 982 (8th Cir. 2008) (quoting Strongson v. Barnhart, 361 F.3d 1066,
1072 (8th Cir. 2004)).
The ALJ acknowledged the Polaski test before discounting Carter’s subjective
complaints. AR 14. The ALJ also provided reasons for discrediting Carter’s testimony
and identified the inconsistencies in the record using the Polaski factors. Beginning
with the first factor of the claimant’s daily activities, the ALJ concluded that Carter’s
daily functioning was not as limited as he claimed. AR 16. “Pain may be discredited
by evidence of daily activities inconsistent with such allegations.” Davis v. Apfel, 239
F.3d 962, 967 (8th Cir. 2001). “[A]cts such as cooking, vacuuming, washing dishes,
doing laundry, shopping, driving, and walking, are inconsistent with subjective
complaints of disabling pain.” Medhaug v. Astrue, 578 F.3d 805, 816 (8th Cir. 2009).
The ALJ noted that in February 2008 Carter reported no problems with personal
care, preparing meals, washing dishes, doing housework and laundry, going shopping,
and enjoying hobbies. AR 16-17, 390-95. Carter’s function report from February
2008 alleges some discomfort with these activities, but he indicated that he would do
these activities on a regular basis for an hour at a time. AR 390-95. The ALJ also
referenced Carter’s answers to interrogatories in January 2010, where he reported that
he would occasionally wash dishes, do laundry, cook, read, shop for groceries, and
attend church. AR 17, 435-42. While the Eighth Circuit has held “the ability to do
activities such as light housework and visiting with friends provides little or no support
for the finding that a claimant can perform full-time competitive work,” Reed v.
Barnhart, 399 F.3d 917, 923-24 (8th Cir. 2005), the ALJ also noted that Carter was
working part-time as a laborer at the time of his current application. AR 16, 344. The
record shows Carter held two other part-time jobs as a laborer since his alleged onset
date in 2004.
Although this work activity did not rise to the level of
substantial gainful activity, it is relevant in determining credibility. See Medhaug, 587
F.3d at 816 (holding the ALJ properly considered the claimant’s employment positions
maintained after the alleged onset date in helping determine the claimant’s credibility).
During the administrative hearing, Carter alleged much more severe limitations
to his daily functioning than was supported by objective medical evidence. “[A]n ALJ
may not discount a claimant’s allegations of disabling pain solely because the objective
medical evidence does not fully support them.”
Goff, 421 F.3d at 792 (quoting
O’Donnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003)).
“The absence of an
objective medical basis which supports the degree of severity of subjective complaints
alleged is just one factor to be considered in evaluating the credibility of the testimony
Polaski, 739 F.2d at 1322.
“Subjective complaints may be
discounted if there are inconsistencies in the evidence as a whole.” Id. During the
hearing, Carter claimed he spent most of his day sitting or lying down and was only
able to sustain activities such as walking for five to ten minutes. AR 40-41. The ALJ
referenced Carter’s treatment notes which included no recommendations that he limit
his activities or lie down and rest to the extent Carter claimed was necessary. AR 16.
Because the inconsistencies concerning Carter’s daily activities were not based solely
on the lack of objective medical evidence, but also on Carter’s own self-reported
activities and work as a laborer while allegedly disabled with back pain, the ALJ
properly considered Carter’s activities of daily living in evaluating the credibility of his
The ALJ also evaluated the duration, intensity, and frequency of pain, along
with the treatment Carter was receiving to help determine the credibility of his
subjective complaints. The ALJ noted that Carter sought minimal medical treatment for
his condition and he failed to take his treating medications on a regular basis. AR 16.
The ALJ also pointed out that the objective medical evidence failed to support his
allegations of disabling pain since his treating sources did not recommend further
treatment, surgery, or use of a cane, and they did not assess significant functional
limitations beyond the limitations identified in the RFC assessment. AR 16.
The ALJ properly considered Carter’s credibility based on the evidence in the
record concerning the extent of his pain and his treatment. “A claimant’s allegations of
disabling pain may be discredited by evidence that the claimant has received minimal
medical treatment and/or has taken only occasional pain medications.”
Astrue, 499 F.3d 842, 851 (8th Cir. 2007).
“A failure to follow a recommended
course of treatment also weighs against a claimant’s credibility.” Guilliams, 393 F.3d
at 802. Carter often sought medical treatment, but it was not the recommended course
of treatment. The majority of Carter’s treatment consisted of intermittent emergency
room visits, where he would complain of back and hip pain.
He was prescribed
various pain relievers, anti-inflammatory medication, and muscle relaxants throughout
these visits. Although Carter was consistently advised to seek follow-up treatment with
a primary care provider to manage his pain, Carter failed to do so until January 2007.
AR 537, 613, 624, 763.
Carter claims his failure to seek regular treatment was due to lack of funds, but
physicians often directed him to Siouxland Community Health Center, which provides
healthcare to low-income individuals. See Murphy v. Sullivan, 953 F.2d 383, 386-87
(8th Cir. 1992) (finding claimant’s failure to seek low-cost medical treatment or present
evidence that claimant had been denied medical care because of her financial condition
was enough for the ALJ to determine that the claimant’s financial hardship was not
severe enough to justify her failure to seek treatment).
Carter eventually sought
treatment at Siouxland Community Health Center in January 2007, which lasted four
months before he was referred to Dr. Yang, an orthopaedic specialist at UIHC through
the IowaCare program which provides some health care coverage to people who
otherwise have no coverage.
Treatment at UIHC provided some objective evidence of the cause of Carter’s
pain but the treatment he received does not support Carter’s allegations of disabling
pain or significant functional limitations.
Dr. Yang initially found evidence of
degenerative disc disease from an MRI scan, but concluded the MRI results were of
“uncertain clinical importance” after an EMG showed no evidence of lumbosacral
radiculopathy. AR 653, 659. Dr. Yang suggested that Carter’s physical examinations
were indicative of a sacroiliac joint pain generator, which is predominantly
inflammatory. AR 654. Carter was prescribed anti-inflammatory medication and also
had sacroiliac joint injections. Id. Carter tried various treatment options suggested by
Dr. Yang, but claimed none of them permanently resolved his pain. Carter was not
considered a good candidate for surgery.
Carter continued to report to emergency rooms between appointments with Dr.
Yang. In May 2008, Dr. Yang suggested the problem was in his hip and found that
Carter’s spine was fine. AR 703. An x-ray of his hip revealed coxa profunda with
moderate degenerative changes of the hip. AR 712. Dr. Van Hofwegen saw Carter for
his hip and concluded that Carter had mild hip arthritis with symptoms that seemed to
be worse than the radiographs revealed. AR 748. Carter was not considered a good
candidate for total hip replacement. Dr. Van Hofwegen prescribed anti-inflammatories
and recommended “being aggressive about being active.” AR 748. At a follow-up
four months later, Dr. Van Hofwegen noted the radiographs showed minimal
degenerative changes in the right hip, referred Carter to the pain clinic, and scheduled a
follow-up a couple years later. AR 753. At the time of the hearing, Carter was taking
Tramadol, a pain reliever, but claimed it did not provide him any relief.
The ALJ also considered the examinations and assessments by state agency
medical consultants, who provided opinions on Carter’s functional capacities despite the
pain he was reporting. “As is true in many disability cases, there is no doubt that the
claimant is experiencing pain; the real issue is how severe that pain is.” Thomas v.
Sullivan, 928 F.2d 255, 259 (8th Cir. 1991). “Pain is recognized as disabling when it
is not remediable and precludes a claimant from engaging in any form of substantial
gainful activity.” Cruse v. Bowen, 867 F.2d 1183, 1186 (8th Cir. 1989) (citing Benson
v. Matthews, 554 F.2d 860, 863 (8th Cir. 1977)). In March 2008, Dr. May found the
medical evidence failed to substantiate Carter’s low back pain until August 2007, and
concluded that even though it would be reasonable to assume his back pain would cause
some limitation, the evidence demonstrated Carter could still perform light work. AR
678. This assessment was affirmed upon reconsideration of the evidence in June 2008,
by Dr. Nitzke, another state agency medical consultant.
The ALJ also noted the
previous examinations in 2005 and 2006 by Dr. Buck and Dr. Martin were consistent
with the state agency medical consultants’ assessments for light work and were
supported by evidence and consistent with the record as a whole.
After reviewing all the evidence concerning the duration, intensity, and
frequency of pain, along with the treatment Carter received to determine the credibility
of his subjective allegations, the ALJ concluded:
While the undersigned does not doubt that the claimant experiences some
discomfort, the allegations of limitations and a pain level that precludes all
types of work are inconsistent with the objective medical evidence, the
absence of more aggressive treatment, medical opinions, the evidence as a
whole, and thus, the allegations are not fully credible.
AR 16. As demonstrated above, this reasoning is supported by substantial evidence in
the record as a whole. In addition, the ALJ found Carter could only perform light or
sedentary work, with a sit-stand option, indicating he took into account some of
Carter’s subjective complaints that were supported by the record.
The ALJ thoroughly outlined the inconsistencies in the record as a whole and
gave legitimate reasons for discrediting the claimant’s subjective complaints. These
reasons are supported by substantial evidence, and thus, the court will not disturb the
ALJ’s credibility determination.
B. Weighing of Medical Evidence
Carter also argues the ALJ erred in weighing the medical opinions to determine
his RFC. First, he argues the ALJ erred by failing to describe the weight given to the
state agency medical consultants. Second, he argues the ALJ should not have given
significant weight to the opinions of the state agency medical consultants because their
reports did not consider treatment notes from UIHC. Finally, he argues the opinions of
treating sources at UIHC must be given controlling weight.
responds that the ALJ properly relied on the opinions of the state agency medical
consultants because he did not rely solely on these opinions but conducted an
independent review of the medical evidence and found the subsequent treatment notes
and opinions were consistent with the consultants’ findings and did not contradict the
The Commissioner also argues that none of the treating source
opinions contradict the ALJ’s RFC finding.
“In deciding whether a claimant is disabled, the ALJ considers medical opinions
along with ‘the rest of the relevant evidence’ in the record.” Wagner, 499 F.3d at 848
(quoting 20 C.F.R. §§ 404.1527(b), 416.927(b)). “Medical opinions” are defined as
“statements from physicians and psychologists or other acceptable medical sources that
reflect judgments about the nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and
your physical or mental restrictions.”
20 C.F.R. §§404.1527(a)(2), 416.927(a)(2).
Other relevant evidence includes medical records, observations of treating physicians
and others, and an individual’s own description of his limitations. McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000).
“Some medical evidence ‘must support the
determination of the claimant’s RFC, and the ALJ should obtain medical evidence that
addresses the claimant’s ability to function in the workplace.’” Hutsell v. Massanari,
259 F.3d 707, 712 (8th Cir. 2001) (quoting Lauer v. Apfel, 245 F.3d 700, 704 (8th
“Unless a treating source’s opinion is given controlling weight, the
administrative law judge must explain in the decision the weight given to the opinions
of a state agency medical . . . consultant.”
20 C.F.R. §§ 404.1527(e)(2)(ii),
Carter argues the ALJ erred by not explaining the weight given to the state
agency medical consultants’ opinions.
However, the ALJ expressly stated he gave
“great weight” to the assessments completed by the state agency medical consultants.
AR 14. He reasoned “they are acceptable medical sources and their conclusions are
consistent with the record as a whole, both at the time of their review and through the
date of this decision.” Id. The ALJ also gave “substantial weight” to the opinions of
Dr. Buck and Dr. Martin, who briefly examined Carter in 2005 and 2006.
reasoned these opinions were generally consistent with the assessments of the state
agency medical consultants and the record as a whole. AR 15. As for Dr. Bertram,
who briefly treated Carter in 2004 and found that he had unrestricted work duty and no
permanent partial disability, the ALJ assigned “some weight” to this opinion because
later evidence supported limitations of light or sedentary work. AR 15.
The specialists at UIHC offered no opinions on Carter’s physical limitations or
the work activity Carter could still perform despite his impairment. AR 16. However,
the ALJ considered the treatment notes and nothing suggests he discredited any of the
findings contained therein. The ALJ properly explained the weight given to the nontreating and treating sources as required by the regulations.
The ALJ was also entitled to assign significant weight to the opinions from the
state agency medical consultants despite the fact that they did not review all of the
medical records from UIHC. When evaluating a non-examining source’s opinion, the
ALJ “evaluate[s] the degree to which these opinions consider all of the pertinent
evidence in [the] claim, including opinions of treating and other examining sources.”
20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3).
The weight given to their opinions
“depend[s] on the degree to which they provide supporting explanations for their
opinions.” Id. While opinions of non-examining sources do not constitute substantial
evidence, see Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003), an ALJ does not
commit reversible error when he or she undertakes an independent review of the
medical evidence and does not rely solely on the opinion of a non-examining source in
determining a claimant’s RFC. Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th Cir.
2002) (citing Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995)).
The state agency medical consultants completed evaluations in 2005, 2006,
2007, and 2008. The physical RFC assessment for the current disability application
was completed by Dr. May in March 2008 and was affirmed upon reconsideration by
Dr. Nitzke in June 2008. Dr. May concluded Carter could occasionally lift or carry 20
pounds, could frequently lift or carry 10 pounds, and could stand and/or sit six hours in
an eight-hour workday. AR 672. Dr. May’s assessment was based on medical records
from Carter’s emergency room visits up to February 11, 2008, treatment notes from
Siouxland Community Health Center and UIHC up to February 11, 2008, as well as
function reports and other documents Carter submitted with his disability application.
AR 671-82. In explaining his RFC assessment, Dr. May referenced the MRI and EMG
results from UIHC as well as results from physical examinations, Carter’s activities of
daily living, and the treatment he was receiving for his back pain. AR 678. He stated
that while it was reasonable to assume that Carter’s pain would cause some limitations,
he thought Carter was capable of the RFC suggested. Id.
The fact that Dr. May did not have access to all of the records from UIHC does
not prevent the ALJ from assigning significant weight to his assessment if the ALJ
conducted an independent review of the evidence, which included treatment notes the
consultant had not considered. Dr. May reviewed records from UIHC dating from
2003 to February 11, 2008 for his RFC assessment. Carter began treatment at UIHC
in May 2007. Dr. May adjusted his previous RFC assessment based on these records
by decreasing the limits that Carter could be expected to lift or carry and citing test
results from UIHC. AR 671, 678.
The state agency medical consultants did not review treatment records relating to
Carter’s hip because that was not part of his diagnosis until August 2008. AR 745.
Carter’s hip problem was deemed to be another possible explanation for his persistent
pain, not a new or additional impairment. AR 703. The ALJ reviewed the subsequent
treatment notes from UIHC concerning Carter’s hip. AR 16. He summarized the
treatment notes which contained a diagnosis of mild hip arthritis with symptoms that
seemed to be worse than the radiographs revealed. AR 16, 748. Those treatment notes
also indicated that Carter was not a good candidate for total hip replacement and the
physician recommended a course of anti-inflammatories and “being aggressive about
The ALJ concluded that the state agency medical consultants’
assessments were “consistent with the record as a whole, both at the time of their
review and through the date of this decision,” indicating that he considered them in
light of the subsequent treatment notes from UIHC. AR 14. The ALJ did not err in
assigning significant weight to the consultants’ opinions because those opinions were
not the sole basis for his RFC determination and his independent review of the evidence
revealed that the assessments were further substantiated by subsequent treatment notes
from UIHC and the record as a whole.
Finally, Carter contends the ALJ should have given controlling weight to
treating source opinions.
Medical opinions from treating physicians are entitled to
substantial weight. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). If the ALJ
finds that a treating physician’s opinion on the nature and severity of the claimant’s
impairment is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the
claimant’s] record, [the ALJ] will give it controlling weight.”
20 C.F.R. §§
“When an ALJ discounts a treating physician’s
opinion, he should give good reasons for doing so.” Brown v. Astrue, 611 F.3d 941,
951-52 (8th Cir. 2010).
Carter does not identify which treating opinions were not given substantial
weight that should have been given such weight.
The Commissioner correctly
identifies that the only medical opinions from treating sources were Dr. Bertram’s
opinion in 2004 that Carter had unrestricted work duty and Dr. Buck’s opinion that
Carter could lift 10 to 20 pounds and perform limited bending and twisting. The ALJ
gave Dr. Bertram’s opinion “some weight” and provided sufficient reasoning to
discredit this opinion because it was inconsistent with later evidence that revealed
Carter was limited to performing only light or sedentary work. The ALJ gave Dr.
Buck’s opinion “substantial weight” and reasoned that his opinion was consistent with
the record as a whole. Carter’s only other treating sources were Dr. Yang and Dr. Van
Hofwegen at UIHC who did not provide any opinions on Carter’s ability to function in
the workplace and did not indicate any functional limitations in their treatment notes.
Nothing in the record suggests the ALJ gave the UIHC specialists’ findings anything
other than controlling weight and their treatment notes are consistent with the RFC
Thus, the ALJ gave proper weight to the treating source opinions and
treatment notes in the record.
The ALJ properly weighed the medical evidence in the record. He assigned
appropriate weight to the state agency medical consultants’ assessments and conducted
an independent review of the medical evidence to determine whether it supported an
RFC determination of light or sedentary work. The ALJ also gave appropriate weight
and consideration to the evidence from treating sources. Therefore, the ALJ did not err
in weighing the medical evidence.
C. Hypothetical Question to VE
Carter argues that because the ALJ erred in discrediting the claimant’s testimony
and did not properly weigh the medical opinions, the ALJ’s hypothetical question to the
VE was also improper because it did not include all of Carter’s limitations. Carter
specifically argues that the hypothetical question should have addressed Carter’s need to
use a cane. The Commissioner argues that the ALJ’s hypothetical question was proper
because it only had to include the claimant’s credible limitations, which did not include
Carter’s use of a cane because that limitation was not established by the record as a
“A vocational expert’s testimony constitutes substantial evidence when it is
based on a hypothetical that accounts for all of the claimant’s proven impairments.”
Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010). The hypothetical question must
include “those impairments that the ALJ finds are substantially supported by the record
as a whole.” Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996).
“[A]n ALJ may
omit alleged impairments from a hypothetical question posed to a vocational expert
when ‘[t]here is no medical evidence that those conditions impose any restrictions on
[the claimant’s] functional capabilities.’” Owen v. Astrue, 551 F.3d 792, 801-02 (8th
Cir. 2008) (quoting Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir. 1994)).
Here, the limitations included in the hypothetical question to the VE were light
level or sedentary work with a sit-stand option that entailed no climbing, repetitive
bending, twisting or turning, crawling, squatting, kneeling, or balancing. AR 50-51.
The VE identified jobs as a hand packager, production assembler, and unskilled office
helper were available with these limitations. Id. During the administrative hearing,
Carter’s attorney asked the VE whether any of these jobs could be performed if the
individual had to use a cane to support himself. AR 52. The VE responded that none
of the identified jobs would be available because the cane would totally occupy the use
of one of his hands. Id.
The ALJ’s hypothetical question to the VE was proper because it included the
limitations the ALJ found credible and supported by the record as a whole.
discussed above, the ALJ’s credibility determination and weighing of the medical
evidence is supported by substantial evidence and therefore the ALJ did not err by
including only those credible limitations in the hypothetical question posed to the VE.
The ALJ also found that Carter’s need to use a cane was not supported by the record.
He noted that the cane was not prescribed and treatment notes indicated that he could
ambulate without it. AR 14, 705, 745. Because the ALJ provided good reasons for
discrediting this limitation that are supported by substantial evidence in the record, the
ALJ was not required to include the use of a cane in the limitations for the hypothetical
question. Therefore, the ALJ’s hypothetical question to the VE was proper and the
VE’s testimony constitutes substantial evidence.
After a thorough review of the entire record and in accordance with the standard
of review this court must follow, the court concludes that the ALJ’s determination that
Carter was not disabled within the meaning of the Act is supported by substantial
evidence in the record.
Accordingly, the decision of the ALJ must be affirmed.
Judgment will be entered in favor of the Commissioner and against Carter.
IT IS SO ORDERED.
DATED this 20th day of August, 2012.
LEONARD T. STRAND
UNITED STATES DISTRICT COURT
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