Sharpton v. Colvin

Filing 16

ORDER that: Plaintiff's Motion for Summary Judgement (ECF No. 11 ) is DENIED. Defendant's Motion for Summary Judgment (ECF No. 13 ) is GRANTED. LET JUDGMENT BE ENTERED ACCORDINGLY.(Written Opinion) Signed by Magistrate Judge Tony N. Leung on 9/25/2017. (MMP)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Steven Gale Sharpton,

Case No. 16-cv-1938 (TNL)

Plaintiff,
v.

ORDER

Nancy A. Berryhill, 1
Acting Commissioner of Social Security,
Defendant.

Gerald S. Weinrich, Weinrich Law Office, 400 South Broadway, Suite 203, Rochester,
MN 55904 (for Plaintiff); and
Gregory G. Brooker, Acting United States Attorney, United States Attorney’s Office, 300
South Fourth Street, Suite 600, Minneapolis, MN 55415 (for Defendant).

I. INTRODUCTION
Plaintiff Steven Gale Sharpton brings the present case, contesting Defendant
Commissioner of Social Security’s denial of his application for disability insurance
benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The
parties have consented to a final judgment from the undersigned United States Magistrate
Judge in accordance with 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D. Minn. LR
72.1(c).

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017. The Acting
Commissioner of Social Security, Soc. Sec. Admin., https://www.ssa.gov/agency/commissioner.html (last visited
Sept. 25, 2017). Commissioner Berryhill is automatically substituted for the previous Acting Commissioner of
Social Security Carolyn W. Colvin. Fed. R. Civ. P. 25(d) (public officer’s successor is automatically substituted as
party when officer ceases to hold office while action is pending).

1

This matter is before the Court on the parties’ cross-motions for summary
judgment.

(ECF Nos. 11, 13.)

Being duly advised of all the files, records, and

proceedings herein, IT IS HEREBY ORDERED that Plaintiff’s motion for summary
judgment (ECF No. 11) is DENIED and the Commissioner’s motion for summary
judgment (ECF No. 13) is GRANTED.
II. PROCEDURAL HISTORY
Plaintiff applied for DIB in March 2013, asserting that he has been disabled since
February 2012, due to, among other things, a back impairment. (Tr. 19, 60, 68, 69, 78.)
Plaintiff’s DIB application was denied initially and again upon reconsideration. (Tr. 19,
67, 68, 77, 78.) Plaintiff appealed the reconsideration of his DIB determination by
requesting a hearing before an administrative law judge (“ALJ”). (Tr. 19, 94-97.)
The ALJ held a hearing in September 2014. (Tr. 19, 36, 38.) After receiving an
unfavorable decision from the ALJ, Plaintiff requested review from the Appeals Council,
which denied his request for review. (Tr. 1-3, 12-14, 16-35.) Plaintiff then filed the
instant action, challenging the ALJ’s decision. (Compl., ECF No. 1.) The parties have
filed cross motions for summary judgment. (ECF Nos. 11, 13.) This matter is now fully
briefed and ready for a determination on the papers.
III. ANALYSIS
Disability benefits are available to individuals who are determined to be under a
disability. 42 U.S.C. § 423(a)(1); 20 C.F.R. § 404.315. An individual is considered to be
disabled if he is unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
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death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 404.1505(a). This standard
is met when a severe physical or mental impairment, or impairments, renders the
individual unable to do his previous work or “any other kind of substantial gainful work
which exists in the national economy” when taking into account his age, education, and
work experience. 42 U.S.C. § 423(d)(2)(A); see 20 C.F.R. § 404.1505(a). In general, the
burden of proving the existence of disability lies with the claimant.

20 C.F.R.

§ 404.1512(a).
A. ALJ’S Decision
Disability is determined according to a five-step, sequential evaluation process.
20 C.F.R. § 404.1520(a)(4).
To determine disability, the ALJ follows the familiar five-step
process, considering whether: (1) the claimant was employed;
(2) []he was severely impaired; (3) h[is] impairment was, or
was comparable to, a listed impairment; (4) []he could
perform past relevant work; and if not, (5) whether []he could
perform any other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010).
In relevant part, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since his alleged onset date and his degenerative disk disease constituted a severe
impairment. (Tr. 21.) The ALJ concluded that this impairment did not meet or medically
equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1, including Listing
1.04. (Tr. 23.) After finding that Plaintiff’s subjective complaints were not fully credible
and giving little weight to Jerry Davis, M.D., Plaintiff’s treating physician, the ALJ
3

determined that Plaintiff had the residual functional capacity to perform light work with
additional limitations. (Tr. 24-29.) The ALJ then found that Plaintiff was capable of
performing his past relevant work as a security guard and ultimately concluded that
Plaintiff was not disabled. (Tr. 29-31.)
B. Issues for Review
Plaintiff challenges the ALJ’s decision on three grounds. Plaintiff asserts that the
ALJ (1) erred in determining that his degenerative disk disease did not meet Listing 1.04;
(2) improperly assessed his credibility; and (3) did not give appropriate weight to the
opinion of his treating physician.
C. Standard of Review
This Court reviews whether the ALJ’s decision is supported by substantial
evidence in the record as a whole. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir.
2011).

“Substantial evidence means less than a preponderance but enough that a

reasonable person would find it adequate to support the decision.” Id. This standard
requires the Court to “consider both evidence that detracts from the [ALJ’s] decision and
evidence that supports it.” Id. The ALJ’s decision “will not [be] reverse[d] simply
because some evidence supports a conclusion other than that reached by the ALJ.” Id.;
accord Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012). “The court must affirm the
[ALJ’s] decision if it is supported by substantial evidence on the record as a whole.”
Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016) (quotation omitted). Thus, “[i]f,
after reviewing the record, the court finds it is possible to draw two inconsistent positions
from the evidence and one of those positions represents the ALJ’s findings, the court
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must affirm the ALJ’s decision.” Perks, 687 F.3d at 1091 (quotation omitted); accord
Chaney, 812 F.3d at 676.
D. Listing 1.04
Consistent with the sequential nature of the disability evaluation process, the Court
begins with Plaintiff’s challenge to the ALJ’s determination that his degenerative disk
disease did not meet Listing 1.04.

“[T]he listings were designed to operate as a

presumption of disability that makes further inquiry unnecessary.” Sullivan v. Zebley,
493 U.S. 521, 532 (1990); accord Lott v. Colvin, 772 F.3d 546, 549 (8th Cir. 2014); see
20 C.F.R. § 404.1520(d) (“If you have an impairment(s) which meets the duration
requirement and is listed in appendix 1 . . . , we will find you disabled without
considering your age, education, and work experience.”). When a severe impairment
meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1, “the claimant is conclusively presumed to be disabled.” Bowen v. Yuckert, 482 U.S.
137, 141 (1987).
“To meet a listing, a claimant must show that he or she meets all of the criteria for
the listed impairment.” Blackburn v. Colvin, 461 F.3d 853, 858 (8th Cir. 2014) (citing
Zebley, 493 U.S. at 531); accord KKC ex. rel. Stoner v. Colvin, 818 F.3d 364, 370 (8th
Cir. 2016) (“An impairment meets a listing only if it meets all of the specified medical
criteria.”) (quotation omitted). “Merely being diagnosed with a condition named in a
listing and meeting some of the criteria will not qualify a claimant for presumptive
disability under the listing.” McCoy v. Astrue, 648 F.3d 605, 611-12 (8th Cir. 2011).
Stated differently, “[a]n impairment that manifests only some of the list criteria, no
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matter how severely, does not qualify.” Lott, 772 F.3d at 549 (quotation omitted). The
claimant bears the burden of establishing that he meets all the criteria of the relevant
listing. Blackburn, 761 F.3d at 858.
Plaintiff asserts that his degenerative disk disease meets Listing 1.04A. Listing
1.04A requires that a spinal disorder such as degenerative disk disease be accompanied
by
[e]vidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness
or muscle weakness) accompanied by sensory or reflex loss
and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine).
20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.04A. The requisite level of severity “is
only met when all of the medical criteria listed . . . are simultaneously present.” Social
Security Acquiescence Ruling (AR) 15-1(4), Radford v. Colvin: Standard for Meeting the
Listing for Disorders of the Spine With Evidence of Nerve Root Compression, 80 Fed.
Reg. 57418-02, 57420 (Sept. 23, 2015) [hereinafter AR 15-1(4)]; accord Atkins v. Colvin,
No. 15-1168-JWL, 2016 WL 2989393, at *12 (D. Kan. May 24, 2016); see Banks v.
Colvin, No. 15-cv-01040-CJW, 2017 WL 382239, at *6 (N.D. Ia. Jan. 26, 2017), appeal
filed, No. 17-1648 (8th Cir. Mar. 28, 2017). Thus, “when the listing criteria are scattered
over time, wax and wane, or are present on one examination but absent on another, the
individual’s nerve root compression w[ill] not rise to the level of severity required by
listing 1.04A.” AR 15-1(4) at 57420.

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Addressing three of Listing 1.04A’s four criteria, Plaintiff asserts that he has
experienced “pain and numbness radiating into his lower extremities”; limited “range of
motion of the spine because of pain”; and “positive straight leg raise test[ing] on at least
two occasions.” (Pl.’s Mem. in Supp. at 20-21, ECF No. 12.) The Commissioner
responds that Plaintiff has not met his burden to show that he satisfies all of Listing
1.04A’s criteria because he has not shown that he exhibits the fourth: motor loss
accompanied by sensory or reflex loss.
The record reflects that Plaintiff injured his back in February 2012 while shoveling
wet sawdust at his place of employment. (See, e.g., Tr. 42, 263, 283.) A subsequent MRI
showed a disk bulge at T11-12, “causing mass effect to [the] L5 nerve root.” (Tr. 271;
see Tr. 320-21; see also Tr. 347 (“[T]he MRI from 3/23/2012 shows L4-5 disk disease
with small eccentric disk herniation to the right, which is not impinging on a nerve
root.”), 368 (same).) Thereafter, Plaintiff continued to seek treatment for low-back pain.
(See, e.g., Tr. 266, 269, 270, 279, 283, 285, 310, 340, 347, 356, 362, 368, 374, 376, 423,
431, 433, 436, 458.) Plaintiff’s treatment providers generally observed some tenderness
and restriction in his range of motion and noted that he frequently changed positions
while sitting. (See, e.g., Tr. 264, 265, 269, 271, 273-74, 357, 375, 376, 436.) During
these examinations, however, Plaintiff was noted to have full muscle strength. (Tr. 264,
274, 280 (February, April and May 2012); Tr. 346, 349, 367, 370 (August 2013); Tr. 387,
419, 426 (January and April 2014); see Tr. 25-27.)
Motor loss is defined in Listing 1.04A as “atrophy with associated muscle
weakness or muscle weakness.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.04A.
7

Plaintiff has not pointed to evidence in the record showing that he experienced motor loss
as a result of his degenerative disk disease and the ALJ properly observed that Plaintiff’s
examinations showed that he had full muscle strength.

Therefore, even assuming

Plaintiff met the other three criteria, Plaintiff has not met his burden to show that all of
Listing 1.04A’s medical criteria are present. See Blackburn, 761 F.3d at 858. The
presence of some but not all of the medical criteria is insufficient for Plaintiff’s
degenerative disk disease to meet Listing 1.04A. See Banks, 2017 WL 382239, at *6
(“Therefore, whether claimant consistently or episodically exhibited positive straight-leg
raises, the medical evidence fails to demonstrate she had the other conditions necessary to
meet or equal Listing 1.04(A).”); see also Lott, 772 F.3d at 549; McCoy, 648 F.3d at 61112.

Based on the foregoing, the ALJ did not err in concluding that Plaintiff’s

degenerative disk disease did not meet Listing 1.04.
E. Plaintiff’s Credibility
Next, Plaintiff challenges the ALJ’s assessment of his credibility. Plaintiff argues
that the intensity, persistence, and limiting effects of his symptoms are supported by the
objective medical evidence, examinations and observations of his treatment providers,
and his testimony regarding his activities. The Commissioner responds that the ALJ gave
good reasons for discounting Plaintiff’s subjective complaints.
1. Credibility Assessments
When determining a claimant’s residual functional capacity, an ALJ takes into
account the claimant’s subjective complaints, evaluating the credibility of such
complaints. See Perks, 687 F.3d at 1092. In the Eighth Circuit, the Polaski factors are
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used to evaluate a claimant’s subjective complaints. Halverson, 600 F.3d at 931 (citing
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984)); Hightower v. Colvin, No. 15-cv-202
(SER), 2015 WL 12683980, at *14 (D. Minn. Nov. 3, 2015). When
assessing a claimant’s credibility, the ALJ must 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; (5) any functional restrictions; (6) the claimant’s
work history; and (7) the absence of objective medical
evidence to support the claimant’s complaints.
Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009); see Halverson, 600 F.3d at 931.
“The ALJ is not required to discuss each Polaski factor as long as ‘he acknowledges and
considers the factors before discounting a claimant’s subjective complaints.’” Halverson,
600 F.3d at 932 (quoting Moore, 572 F.3d at 524). Courts “will defer to an ALJ’s
credibility finding so long as the ALJ explicitly discredits a claimant’s testimony and
gives good reasons for doing so.” Hensley v. Colvin, 829 F.3d 926, 934 (8th Cir. 2016)
(quotation omitted).
2. ALJ’s Findings
Acknowledging the appropriate factors to be considered, the ALJ found that
Plaintiff’s subjective complaints were not fully credible for several reasons. The ALJ
observed that, despite Plaintiff’s allegations of disabling pain, he was not using “physical
therapy, biofeedback, iontophoresis, a morphine pump, acupuncture, massage therapy,
braces or splints, special creams or ointments, herbal remedies, chiropractic adjustments,
or anything similar for pain relief.” (Tr. 28.) The ALJ also observed that there were no
“observable manifestations” of severe chronic pain “such as muscular atrophy due to
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muscle guarding; muscular spasms; prolonged bed rest; or adverse neurological signs.”
(Tr. 28.) As a result, the ALJ determined that “[t]he record fail[ed] to demonstrate the
presence of any pathological clinical signs, significant medical findings, or significant
neurological abnormalities that would establish the existence of a pattern of pain of such
severity as to prevent the claimant from engaging in any work on a sustained basis.” (Tr.
28.) The ALJ similarly noted that Plaintiff’s decision not to undergo surgery for his back
“because he ‘chickened out’” demonstrated that Plaintiff “had not taken all steps to
improve his impairments and . . . further reduced the credibility of his allegations.” (Tr.
27.)
Turning to Plaintiff’s daily activities, the ALJ concluded that Plaintiff “remained
quite active in his daily life in spite of his alleged pain.” (Tr. 28.) The ALJ noted that
Plaintiff
admitted that he had only minimal problems getting on socks
and shoes, and indicated no other issues with respect to
performing personal care tasks. He also admitted that he was
able to care for his dogs and cats. He stated that he could
make his own simple meals, like sandwiches. He also
admitted that he could put away dishes. He stated that he was
able to drive to the store and did his own shopping in stores
and by computer. He stated that he enjoyed watching
television and regularly spoke to his family on the phone. He
also indicated that he had no problems paying attention.
(Tr. 28 (citations omitted).) The ALJ “found that there was simply no objective evidence
during the relevant period that could reasonably produce all of the symptoms the claimant
complains of and yet, at the same time, allow him to cook, shop, clean, watch television,
drive, and perform his own personal care tasks.” (Tr. 28.) In a similar vein, the ALJ
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concluded that testimony by Plaintiff at the hearing that he needed to rest every 25 to 30
minutes to relieve pain was inconsistent with a treatment note “indicat[ing] that [Plaintiff]
took a 12 hour driving trip to Oklahoma in December 2013,” suggesting that Plaintiff
“exaggerate[d] his symptoms at the hearing and that he was not as limited by his
degenerative dis[k] disease . . . as his allegations implied when looking at the objective
medical evidence.” (Tr. 27.)
3. Substantial Evidence Supports the ALJ’s Credibility Determination
The ALJ’s credibility findings can be grouped into three categories: the objective
medical evidence, Plaintiff’s activities, and treatment measures. The Court considers
each in turn.
a. Objective Medical Evidence
Plaintiff argues that his degenerative disk disease is supported by imaging studies,
physical examinations, and the observations of his treatment providers, including notes
regarding difficulties standing and sitting, frequent position changes, and pain-avoidance
behaviors. Plaintiff additionally argues that, despite citing a lack of objective evidence to
support his symptoms, “[t]he ALJ could not point to any specific part of the medical
record contradicting [his] testimony as to his symptoms and limitations,” and there is no
indication that any of his treatment providers “believed that he is exaggerating or
embellishing his symptoms or resulting limitations.” (Pl.’s Mem. in Supp. at 18.)
The Commissioner responds that the ALJ properly concluded that the objective
medical evidence did not support the extent of the symptoms alleged. The Commissioner
states that “the ALJ expressly reviewed the objective medical evidence documenting that
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Plaintiff consistently had full muscle strength, intact sensation and reflexes, and normal
or only mildly antalgic gait.” (Comm’r’s Mem. in Supp. at 7.) The Commissioner also
states that the ALJ “found it significant that the record did not document[] observable
manifestations of severe chronic pain, such as muscular atrophy, muscle spasms, and
adverse neurologic signs.” (Comm’r’s Mem. in Supp. at 7.)
“A symptom is . . . [a claimant’s] own description of his or her physical or mental
impairments.” Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in
Disability Claims: Assessing the Credibility of an Individual’s Statements, SSR 96-7p,
1996 WL 374186, at *2 (Soc. Sec. July 2, 1996) [hereinafter SSR 96-7p] 2; accord 20
C.F.R. § 404.1528(a). Although “[s]ymptoms cannot be measured objectively through
clinical or laboratory diagnostic techniques[,] . . . their effects can often be clinically
observed.” SSR 96-7p, 1996 WL 374186, at *6.

Accordingly, objective medical

evidence is a useful indicator to assist in determining the intensity and persistence of an
individual’s symptoms and the effects such symptoms may have on the ability to
function. Id.; accord 20 C.F.R. § 404.1529(c)(2). “The examples in the regulations
(reduced joint motion, muscle spasm, sensory deficit, and motor disruption) illustrate
findings that may result from, or be associated with, the symptom of pain.” SSR 96-7p,
1996 WL 374186, at *6; see 20 C.F.R. § 404.1529(c)(2). “When present, these findings
tend to lend credibility to an individual’s allegations about pain or other symptoms and
their functional effects.” SSR 96-7p, 1996 WL 374186, at *6.
2

SSR 96-7p was superseded by Social Security Ruling 16-3p; Titles II and XVI: Evaluations of Symptoms in
Disability Claims, which went into effect on March 16, 2016. 2016 WL 1119029, at *1 (Soc. Sec. Mar. 16, 2016)
[hereinafter 16-3p]. The ALJ’s decision on Plaintiff’s application was rendered over one year before SSR 16-3p
went into effect and neither party argues for its application in the instant case.

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After reviewing the medical evidence, the ALJ found that there were no
“pathological clinical signs, significant medical findings, or significant neurological
abnormalities that would establish the existence of a pattern of pain of such severity as to
prevent the claimant from engaging in any work on a sustained basis.” (Tr. 28.) It is true
that Plaintiff’s treatment providers observed tenderness, some restriction in range of
motion, frequent adjusting of positions, and behaviors designed to avoid increased pain,
such as walking with “obvious effort to control movements in an attempt to manage his
pain.” (Tr. 376.) The ALJ noted these observations, but also noted places in the record
where Plaintiff’s treatment providers documented full strength, normal range of motion, a
mild or non-antalgic gait, and intact sensation and reflexes. (Tr. 25-27.) The Court
concludes that there is substantial evidence to support the ALJ’s conclusion that the
objective medical evidence did not support Plaintiff’s complaints of disabling pain and
the ALJ did not err in considering the absence of such evidence as one factor in
evaluating Plaintiff’s credibility. See 20 C.F.R. § 404.1529(c)(2) (“However, we will not
reject your statements about the intensity and persistence of your pain or other symptoms
or about the effect your symptoms have on your ability to work solely because the
available objective medical evidence does not substantiate your statements.”); Halverson,
600 F.3d at 931-32 (“Another factor to be considered is the absence of objective medical
evidence to support the complaints, although the ALJ may not discount a claimant’s
subjective complaints solely because they are unsupported by objective medical
evidence.”).

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b. Plaintiff’s Activities
Plaintiff also takes issue with the ALJ’s evaluation of his daily activities, arguing
that the ALJ concluded that he “remained very active[]despite his testimony that he does
very little around the home[,] leaving the cleaning and maintenance to his wife.” (Pl.’s
Mem. in Supp. at 18.) The Commissioner responds that substantial evidence supports the
ALJ’s conclusion that Plaintiff’s activities evidenced greater ability to function than
Plaintiff alleged.
“One strong indication of the credibility of an individual’s statements is their
consistency, both internally and with other information in the case record.” SSR 96-7p,
1996 WL 374186, at *5.

“The adjudicator must compare statements made by the

individual in connection with his or her claim for disability benefits with statements he or
she made under other circumstances, when such information is in the case record.” Id.
Further, “acts which are inconsistent with a claimant’s assertion of disability reflect
negatively upon that claimant’s credibility.” Halverson, 600 F.3d at 932 (quotation
omitted). “[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, 817 (8th Cir. 2009); accord Wright v. Colvin, 789 F.3d
847, 854 (8th Cir. 2015) (identifying driving, shopping, bathing, and cooking as daily
activities previously found inconsistent with disabling pain). An “ALJ may disbelieve [a
claimant’s] subjective complaints if there are inconsistencies in the evidence as a whole.”
Chaney, 812 F.3d at 677 (quotation omitted).

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In his disability reports and at the hearing, Plaintiff stated that he suffers from
constant lower back pain and, at times, his back goes out or freezes, rendering him unable
to move at all. (Tr. 43, 202, 217.) Plaintiff reported that he is unable to sit, stand, or
walk for more than 15 to 20 minutes due to pain. (Tr. 202; see Tr. 45-46.) Plaintiff
further stated that he is unable to bend or twist without severe pain and frequently
adjusts/shifts positions during the day in response to pain. (Tr. 45-47, 49, 202, 203, 209,
217.)
Plaintiff is able to manage all of his own personal care, but occasionally needs
help with his shoes and socks. (Tr. 48, 203, 218.) Plaintiff performs a few chores around
the house, but most of them are done by his wife. (Tr. 48; see Tr. 204, 219.) Plaintiff
reported taking out the trash, doing “a few dishes,” doing a load of laundry, and feeding
the family pets. (Tr. 203, 218, 219, 221.) Plaintiff also prepares simple meals for
himself, such as sandwiches. (Tr. 204, 219.) Plaintiff takes short walks, approximately
two blocks total, with his wife and the dog. (Tr. 49; see Tr. 49, 50, 202, 207.) Plaintiff
reported that he used to run, hunt, fish, go out with friends, play cards, and bowl, but can
no longer do so because of pain, and now spends time watching television. (Tr. 49, 206,
218, 221.)
Plaintiff is able to drive, but most of the time his wife drives. (Tr. 40, 46, 205,
220.) Plaintiff does, however, drive a short distance to a local grocery store a few blocks
away to pick up a couple of items on a daily basis. (Tr. 205, 206.) At the hearing, the
ALJ asked Plaintiff about driving to Oklahoma in December 2013 given his difficulty
with sitting for long periods of time. (Tr. 46.) Plaintiff testified that “[i]t wasn’t easy”
15

and he was usually able to drive around 25 to 30 minutes before needing to pull over.
(Tr. 46.) Plaintiff also testified that, when his wife drives, he is able to “maneuver around
a little longer.” (Tr. 46.) Plaintiff further testified that his wife drove most of the
approximately two hours it took them to get to the hearing and they had to stop four times
along the way. (Tr. 47.)
Finding that Plaintiff “appear[ed] to have remained quite active in his daily life in
spite of his alleged pain,” the ALJ pointed to, among other things, Plaintiff’s ability to
manage his own personal care with “minimal problems getting on socks and shoes”; care
for family pets; make simple meals; put dishes away; and drive to the store and shop.
(Tr. 28.) The ALJ also found that Plaintiff’s trip to Oklahoma was not consistent with his
testimony that he needed to stop every 25 to 30 minutes due to pain and suggested
Plaintiff was not as limited as he alleged. (Tr. 27.) While Plaintiff’s activities may
arguably not seem to be extensive, there is substantial evidence in the record to support
the ALJ’s conclusion that the activities Plaintiff does engage in are inconsistent with his
complaints of disabling pain. See Wright, 789 F.3d at 854; Medhaug, 578 F.3d at 817.
c. Treatment Measures
Lastly, “[t]he ALJ may properly consider . . . the claimant’s willingness to submit
to treatment . . . in order to determine the sincerity of the claimant’s allegations of pain.”
Gray v. Apfel, 192 F.3d 799, 804 (8th Cir. 1999); see Turpin v. Colvin, 750 F.3d 989, 993
(8th Cir. 2014) (impairments controllable by treatment or medication not disabling).
Plaintiff argues that “[t]he ALJ cited lack of steps to improve symptoms, but could not
point to any treatment modality recommended to [him] that he had refused.” (Pl.’s Mem.
16

in Supp. at 18.) The Commissioner responds that the ALJ’s properly took into account
Plaintiff’s willingness to undergo treatment by “not[ing] Plaintiff’s admission that he
‘chickened out’ and did not undergo his scheduled back surgery, indicating he was not
willing to take whatever steps were necessary to alleviate his alleged pain.” (Comm’r’s
Mem. in Supp. at 7.)
When assessing a claimant’s credibility, the ALJ is required to consider
medication and other treatment the claimant has received. 20 C.F.R. § 404.1529(c)(3)(iv)
(medication), (v) (treatment other than medication); SSR 96-7p, 1996 WL 374186, at *3.
Persistent attempts by the individual to obtain relief of pain or
other symptoms, such as by increasing medications, trials of a
variety of treatment modalities in an attempt to find one that
works or that does not have side effects, referrals to
specialists, or changing treatment sources may be a strong
indication that the symptoms are a source of distress to the
individual and generally lend support to an individual’s
allegations of intense and persistent symptoms.
SSR 96-7p, 1996 WL 374186, at *7 (footnote omitted).
The ALJ’s evaluation of Plaintiff’s medication and treatment gives the Court
pause. The ALJ noted that, “[i]n spite of allegations of disabling pain, the claimant
reports no current use of physical therapy, biofeedback, iontophoresis, a morphine pump,
acupuncture, massage therapy, braces or splints, special creams or ointments, herbal
remedies, chiropractic adjustments, or anything similar for pain relief.” (Tr. 28.) Yet,
medical evidence in the record shows that Plaintiff attended physical therapy for
approximately three months without relief. (See, e.g., Tr. 264, 265, 267, 269, 271, 279;

17

see also Tr. 43.) Plaintiff was also prescribed a TENS unit 3 for pain relief, which he used
during the relevant period. (Tr. 275; see Tr. 43, 202, 203, 217, 223, 436.) Neither of
these treatment modalities was recognized by the ALJ.
Further, while noting that Plaintiff was prescribed Tramadol 4 and Lortab 5 in the
discussion of the medical record, the ALJ does not appear to have taken into account
Plaintiff’s chronic use of these narcotic pain relievers approximately twice per day to
manage his pain when assessing his credibility. (Compare Tr. 25, 26 with Tr. 28; see,
e.g., Tr. 44, 264, 275, 279, 287, 306-07, 315, 340, 350-51, 362, 374, 387, 419, 435.) See
20 C.F.R. § 404.1529(c)(3)(iv) (considering “[t]he type, dosage, effectiveness, and any
side effects of any medication you take or have taken to alleviate your pain or other
symptoms”). Nor did the ALJ discuss the fact that Plaintiff tried four different muscle
relaxers—Flexeril 6 (Tr. 264, 279), Robaxin 7 (Tr. 265), baclofen 8 (Tr. 270), and

3

“A transcutaneous electrical nerve stimulator (TENS) is a device that uses electrical current delivered through
electrodes placed on the skin to decrease a recipient’s perception of pain by inhibiting the transmission of pain nerve
impulses toward the brain and[] stimulating the release of endorphins.” Transcutaneous Electrical Nerve Stimulator
(TENS), Minn. Dep’t Human Servs., http://www.dhs.mn.gov/main/idcplg?IdcService=GET_DYNAMIC_
CONVERSION&dDocName=dhs16_143044&RevisionSelectionMethod=LatestReleased (last visited Aug. 28,
2017).
4
Tramadol is a narcotic pain reliever used to “[t]reat[] moderate to severe pain.” Tramadol (By mouth), PubMed
Health, U.S. Nat’l Library of Medicine, https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0012486/ (last visited
on Aug. 28, 2017).
5
Lortab is a brand name for a hydrocodone-acetaminophen combination. Hydrocodone/Acetaminophen (By mouth),
PubMed Health, U.S. Nat’l Library of Medicine, https://www ncbi nlm nih.gov/pubmedhealth/
PMHT0010590/?report=details (last visited on Aug. 28, 2017). Hydrocodone is a narcotic pain reliever. Id.
6
Flexeril is a brand name for cyclobenzaprine, a muscle relaxer used to “[t]reat pain and stiffness caused by muscle
spasms.” Cyclobenzaprine (By mouth) (Flexeril), PubMed Health, U.S. Nat’l Library of Medicine, https://www.
ncbi.nlm.nih.gov/pubmedhealth/PMHT0009767/ (last visited on Aug. 28, 2017).
7
Robaxin is a brand name for methocarbamol, a muscle relaxer “used to relieve the discomfort caused by acute
(short-term), painful muscle or bone conditions.” Methocarbamol (Robaxin), PubMed Health, U.S. Nat’l Library of
Medicine, https://www.ncbi nlm nih.gov/pubmedhealth/PMHT0001156/ (last visited on Aug. 28, 2017).
8
Baclofen is a muscle relaxer. Baclofen, PubMed Health, U.S. Nat’l Library of Medicine, https://www.ncbi nlm.
nih.gov/pubmedhealth/PMHT0000200/ (last visited on Aug. 28, 2017).

18

tizanidine 9 (Tr. 438)—and at least two other pain medications—gabapentin 10 (Tr. 44-45,
357, 376) and Lyrica 11 (Tr. 438). It is not clear to this Court how and to what extent, if
any, the ALJ considered Plaintiff’s use of medication in evaluating his subjective
complaints of pain. See 20 C.F.R. § 404.1529(c)(3)(iv); SSR 96-7p, 1996 WL 374186, at
*3.
Similarly, the ALJ’s reliance on Plaintiff’s cancellation of his December 2013
back surgery as demonstrating that “he had not taken all steps to improve his
impairments” is less persuasive when placed in the appropriate context. True, Plaintiff
did testify at the hearing that he “chickened out” of the surgery. (Tr. 51.) And, at the
time of cancellation, it was noted that Plaintiff “is very nervous and wished to cancel at
this time.” (Tr. 380.) At this time, however, it was also noted that “family problems
came up” and Plaintiff needed to travel to Oklahoma because “[h]is brother and sister are
both terminal” and “[h]e is planning to see them for the last time.” (Tr. 377; see Tr. 51,
392, 423.) Plaintiff explained at the hearing:
Then when it came time for surgery I ended up having to
make a trip to Oklahoma because my brother had just had a
heart attack. He went in for surgery, for like a multi bypass
surgery and ended up having another heart attack on, in the
surgery. I don’t know. It just kind of got to me.

9

Tizanidine is a muscle relaxer used to “[t]reat muscle spasticity.” Tizanidine (By mouth), PubMed Health, U.S.
Nat’l Library of Medicine, https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0012442/ (last visited on Aug. 28,
2017).
10
Gabapentin is used to treat postherpetic neuralgia and “relieves pain . . . by changing the way the body senses
pain.” Gabapentin, MedlinePlus, U.S. Nat’l Library of Medicine, https://medlineplus.gov/druginfo/meds/
a694007 html (last visited on Aug. 28, 2017).
11
Lyrica is a brand name for pregabalin, a medication used to “[t]reat nerve and muscle pain . . . .” Pregabalin (By
mouth) (Lyrica), PubMed Health, U.S. Nat’l Library of Medicine, https://www.ncbi.nlm.nih.gov/pubmedhealth/
PMHT0011830/ (last visited on Aug. 28, 2017).

19

(Tr. 51.)
Plaintiff further testified that, when he returned, Dr. Davis informed him that he
should not have the surgery and “it probably wouldn’t do any good.” (Tr. 51-52.)
Indeed, when Plaintiff saw Dr. Davis in May 2014, Dr. Davis noted:
I think this [cancellation] was fortuitous because he is now
presenting again with pain in multiple locations in his lower
back. He has pain at the thoracolumbar junction and he also
continues to have pain in the lumbosacral junction. He is
applying for disability because of the severity of his pain. He
is also seeing a counselor because of depression. All of this
in total I think tells me that surgery would not be indicated for
him. We certainly cannot address back pain in multiple
locations. The severity of his pain also would be a relative
contraindication to the success of our surgery. I, therefore,
told him today that his cancellation of his surgery has helped
us to make a better clinical decision and that he is not a
candidate for a spinal fusion at the L4-5 level as this certainly
will not address the multiple areas of back pain that he is now
exhibiting.
(Tr. 423-24.) The ALJ summarized Dr. Davis’s conclusion as “stating at this time that
[Plaintiff] was not a candidate for spinal fusion.” (Tr. 27.) Despite noting that surgery
was no longer recommended, the ALJ still relied on the cancellation to discount
Plaintiff’s credibility.
Considering the foregoing, the question of whether substantial evidence supports
the ALJ’s analysis of Plaintiff’s willingness to submit to treatment as a factor in assessing
his credibility is a closer call in this case. But, even when an ALJ draws erroneous
references from the record in assessing a claimant’s credibility, “reversal is warranted
only where the remainder of the record does not support . . . [the] ALJ’s credibility
determination.” Chaney, 812 F.3d at 677.
20

The Court does not doubt that Plaintiff experiences pain. But, in the end, the
question is not whether Plaintiff does or does not experience pain. See Perkins v. Astrue,
648 F.3d 892, 900 (8th Cir. 2011) (“While pain may be disabling if it precludes a
claimant from engaging in any form of substantial gainful activity, the mere fact that
working may cause pain or discomfort does not mandate a finding of disability.”)
(quotation omitted). Nor is the question “whether substantial evidence exists to reverse
the ALJ.” Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010); see Igo v. Colvin, 839
F.3d 724, 728 (8th Cir. 2016) (“We may not reverse simply because we would have
reached a different conclusion than the ALJ or because substantial evidence supports a
contrary conclusion.”). The question is “whether substantial evidence supports the ALJ’s
decision.” Vossen, 612 F.3d at 1015; see Chaney, 812 F.3d at 676; Perks, 687 F.3d at
1091.
“[T]he credibility of a claimant’s subjective testimony is primarily for the ALJ to
decide, not the courts.” Moore, 572 F.3d at 524 (quotation omitted); see Hensley, 829
F.3d at 934. Notwithstanding any error in the ALJ’s analysis of Plaintiff’s willingness to
submit to treatment, the ALJ properly considered Plaintiff’s daily activities alongside the
lack of objective evidence supporting his complaints of disabling pain when assessing his
credibility. See Milam v. Colvin, 794 F.3d 978, 985 (8th Cir. 2015) (extent of claimant’s
regular physical activities when considered in conjunction with the medical record
undermined claimant’s credibility).

These good reasons for finding a claimant’s

subjective complaints not fully credible are supported by substantial evidence. While this
Court may have conducted the credibility analysis differently, the ALJ sufficiently
21

considered Plaintiff’s subjective complaints of disabling pain in light of the evidence as a
whole and the ALJ’s overall credibility determination is supported by substantial
evidence. See Chaney, 812 F.3d at 677; Vossen, 612 F.3d at 1015.
F. Dr. Davis
Lastly, Plaintiff challenges the ALJ’s assignment of little weight to the opinion of
Dr. Davis, his treating physician.
1. Dr. Davis’s Opinion
Dr. Davis is a neurosurgeon who evaluated Plaintiff in connection with his
degenerative disk disease. (Tr. 283, 285, 376, 423, 458, 445, 446.) While Dr. Davis at
one point recommended that Plaintiff undergo back surgery, Dr. Davis subsequently
determined that Plaintiff was not a candidate for surgery. (Tr. 285, 423-24, 458.) In his
treatment notes, Dr. Davis wrote: “Since [Plaintiff] says he cannot work and I have no
surgical procedures that can relieve him of his pain, I would therefore support disability
based on this.” (Tr. 424; accord Tr. 458.)
Dr. Davis completed a medical source statement in September 2014. (Tr. 445-56.)
In relevant part, Dr. Davis opined that Plaintiff was limited in his lumbar range of
motion, but did not specify to what extent, noting that loss of range of motion was not
quantified. (Tr. 447.) Dr. Davis opined that Plaintiff had no sensory abnormalities,
weakness or muscle atrophy, or arachnoiditis.

22

(Tr. 447-48.)

Dr. Davis checked

“unknown” with respect to any reflex abnormalities. (Tr. 448.) Dr. Davis also indicated
that Plaintiff did not have pseudoclaudication. 12
With respect to Plaintiff’s functional abilities, Dr. Davis opined that Plaintiff was
limited by back pain and had difficulty sitting, sleeping, and riding in cars without
changing positions “frequently.” (Tr. 453.) Dr. Davis opined that Plaintiff needed to
change positions every 30 minutes to relieve pain.

(Tr. 449.)

Dr. Davis checked

“unknown” regarding Plaintiff’s ambulatory abilities. (Tr. 451.) Dr. Davis also did not
answer more specific questions regarding Plaintiff’s abilities to stand and/or walk, lift
and/or carry, and bend/stoop, noting that Plaintiff “did not have functional testing that . . .
[Dr. Davis was] aware of.” (Tr. 453.)
2. ALJ’s Findings
The ALJ gave “little weight” to Dr. Davis’s opinion. (Tr. 28.) In making this
determination, the ALJ pointed to Dr. Davis’s “own admission” that functional testing
was not performed. (Tr. 28.) The ALJ also found that Dr. Davis’s assessment “appeared
to [be] bas[ed] on . . . [Plaintiff’s] subjective complaints.” (Tr. 28.) The ALJ also cited a
lack of “objective evidence in the record to support . . . [the] limitations” identified by Dr.
Davis. (Tr. 28.)
12

“Pseudoclaudication can be a symptom of lumbar spinal stenosis, a condition that occurs when the spinal canal
narrows in your lower back.” Pseudoclaudication: Is it related to claudication?, Mayo Clinic, http://www.
mayoclinic.org/diseases-conditions/spinal-stenosis/expert-answers/pseudoclaudication/faq-20057779?p=1 (last
accessed Aug.29, 2017).
The nerve roots that control movement and sensation in your legs pass through
these narrow areas in your spinal canal. If these areas become too narrow, they
can put pressure on the nerve roots. Pseudoclaudication pain is made worse by
standing or walking, and is usually relieved by sitting or lying down.
Id.; see Spinal Stenosis, PubMed Health, U.S. Nat’l Library of Medicine, https://medlineplus.gov/spinalstenosis.
html (last visited on Aug. 29, 2017) (linking to Mayo Clinic article).

23

3. Weighing Opinions from Treating Sources
Opinions from acceptable medical sources are statements from physicians about
the nature and severity of a claimant’s impairments, including any symptoms, diagnosis,
and prognosis; what the claimant is still able to do despite the impairments; and any
physical or mental restrictions. 20 C.F.R. § 404.1527(a)(2). These opinions are weighed
according to a number of factors, including the examining relationship, treatment
relationship, opinion’s supportability, opinion’s consistency with the record as a whole,
specialization of the provider, and any other factors tending to support or contradict the
opinion. 20 C.F.R. § 404.1527(c).
There is no dispute that Dr. Davis is an acceptable medical source who treated
Plaintiff. See 20 C.F.R. §§ 404.1502 (identifying claimant’s own physician as treating
source), .1513(a)(1) (identifying licensed physicians as acceptable medical sources). A
treating source’s “opinion is entitled to controlling weight when it is supported by
medically acceptable techniques and is not inconsistent with substantial evidence in the
record.” Julin v. Colvin, 826 F.3d 1082, 1088 (8th Cir. 2016); accord Cline v. Colvin,
771 F.3d 1098, 1103 (8th Cir. 2014).
“Yet[, this controlling] weight is neither inherent nor automatic and does not
obviate the need to evaluate the record as a whole.” Cline, 771 F.3d at 1103 (citation and
quotation omitted); see Bernard v. Colvin, 774 F.3d 482, 487 (8th Cir. 2014) (“Since the
ALJ must evaluate the record as a whole, the opinions of treating physicians do not
automatically control.”). A treating source’s opinion may be discounted or disregarded
“where other medical assessments are supported by better or more thorough medical
24

evidence, or where a treating [source] renders inconsistent opinions that undermine the
credibility of such opinions.” Cline, 771 F.3d at 1103 (quotation omitted). When a
treating source’s opinion is not given controlling weight, the opinion is weighed based on
the several factors identified above. 20 C.F.R. § 404.1527(c)(2); Shontos v. Barnhart, 328
F.3d 418, 426 (8th Cir. 2003). The ALJ is required to “give good reasons” for the weight
assigned to a treating source’s opinion. 20 C.F.R. § 404.1527(c)(2); Cline, 771 F.3d at
1103.
4. Substantial Evidence Supports the Weight Given to Dr.
Davis’s Opinion
Plaintiff argues that, even though functional testing was not performed, “Dr. Davis
felt confident that due to [Plaintiff’s] impairment of the spine [he] will need to alternate
body positions at least every 30 minutes.” (Pl.’s Mem. in Supp. at 19.) Plaintiff argues
that “the medical history shows on numerous occasions [his] treating physicians observed
limitations of motion of the spine, positive straight leg rise, and symptoms that would
make it very difficult for [him] to perform light work.” (Pl.’s Mem. in Supp. at 19; see
Pl.’s Reply at 3-4, ECF No. 15.) Plaintiff also argues that “it is hard to imagine a
circumstance where a physician’s assessment and conclusions regarding their patient’s
condition does not take into account the patient’s report of their symptoms.” (Pl.’s Reply
at 3.) The Commissioner responds that the ALJ properly discounted Dr. Davis’s opinion
based on the lack of objective evidence supporting the opinion and Dr. Davis’s reliance
on Plaintiff’s subjective complaints.

25

Dr. Davis’s medical source statement was the only direct evidence of a functional
limitation regarding Plaintiff’s need to alternate positions every 30 minutes. Plaintiff
points to medical evidence in the record related to the diagnosis of degenerative disk
disease in support of Dr. Davis’s opinion. (See Pl.’s Mem. in Supp. at 19; Pl.’s Reply at
3.) But, the fact that Plaintiff suffers from degenerative disk disease is not in dispute, nor
does the presence of a medically documented impairment “perforce result in a finding of
disability.” Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004).
Dr. Davis himself stated that no functional testing was performed. And, aside
from imaging supporting the diagnosis of degenerative disk disease and limitation in
Plaintiff’s lumbar range of motion that Dr. Davis was unable to quantify, no other
medical evidence was cited by Dr. Davis in support of Plaintiff’s need to alternate
positions every 30 minutes. See 20 C.F.R. § 1527(c)(3); Teague v. Astrue, 638 F.3d 611,
616 (8th Cir. 2011). Therefore, the ALJ reasonably concluded that Dr. Davis’s opinion
was based on Plaintiff’s subjective statements. Such reliance is further evidenced by Dr.
Davis’s own treatment note stating that he would support disability because Plaintiff
“says he cannot work and I have no surgical procedures that can relieve him of his pain.”
(Tr. 424; accord Tr. 458.) As discussed above, the ALJ’s determination that Plaintiff was
not fully credible is supported by substantial evidence. “Because the ALJ declined to
credit [Plaintiff], the ALJ was entitled to discount Dr. [Davis’s] opinion[] insofar as [it]
relied on [Plaintiff’s] subjective complaints.” Julin, 826 F.3d at 1089; see Renstrom v.
Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012); Teague, 638 F.3 at 615-16.

26

At the same time, the ALJ did not entirely disregard evidence in the record
concerning Plaintiff’s ability to maintain a particular position. In addition to Dr. Davis’s
medical source statement and Plaintiff’s subjective statements, other evidence in the
record bearing on this aspect of Plaintiff’s residual functional capacity included
observations from treatment providers that he shifted positions often. When determining
Plaintiff’s residual functional capacity, the ALJ limited Plaintiff to light work that would
allow him the option to change positions from sitting to standing and vice versa every
hour. (Tr. 24.) Thus, while the ALJ did not give controlling weight to Dr. Davis’s
opinion and did not fully credit Plaintiff’s own description of his limitations, the ALJ
included a limitation addressing Plaintiff’s ability to maintain a particular position to the
extent supported by the record. See Myers v. Colvin, 721 F.3d 521, 527 (8th Cir,. 2013)
(residual-functional-capacity determination must be “based on all of the relevant
evidence, including the medical records, observations of treating physicians and others,
and an individual’s own description of [his] limitations”) (quotation omitted).
In sum, the Court concludes that the ALJ properly considered the entire record in
determining the weight to be given to Dr. Davis’s opinion and gave good reasons for not
allocating controlling weight to this opinion. The weight assigned to Dr. Davis’s opinion
is supported by substantial evidence in the record.

27

IV. ORDER
Based upon the record, memoranda, and the proceedings herein, IT IS HEREBY
ORDERED that:
1. Plaintiff’s Motion for Summary Judgement (ECF No. 11) is DENIED.
2. Defendant’s Motion for Summary Judgment (ECF No. 13) is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: September

25

, 2017

s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
for the District of Minnesota
Sharpton v. Berryhill
Case No. 16-cv-1938 (TNL)

28