Clark v. Astrue

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 2/18/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
STEVEN CLARK,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 1:12-CV-173 CDP

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the
Commissioner‟s final decision denying Steven Clark‟s application for disability
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. and for
Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. Claimant Clark asserts claims that
he is disabled because of a combination of impairments including problems with
his left knee, shoulder, and wrists. The Administrative Law Judge (ALJ)
concluded that Clark is not disabled and can be employed to do sedentary work.
Clark appeals the decision denying his benefits. Because I conclude that the ALJ‟s
decision is supported by substantial evidence, I will affirm the decision.

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Procedural History
On May 1, 2009, Steven Clark filed an application for a Period of Disability,
Disability Insurance Benefits, and Supplemental Security Income Payments. Clark
alleged disability beginning August 17, 2008. The Social Security Administration
initially denied the application on the grounds that Clark was not under a
“disability” as defined by the Act. Thereafter, Clark filed a timely appeal and a
request for hearing. A video hearing was held on June 28, 2011. On July 14, 2011,
the Administrative Law Judge issued an opinion denying benefits. The Appeals
Council of the Social Security Administration then denied Clark‟s request for
review on September 6, 2012. The ALJ‟s decision thus stands as the final
determination of the Commissioner.
Evidence before the ALJ
In August 2008, Clark injured himself while helping another mechanic put a
front-end on a forklift. He fell and struck both his right shoulder and his left leg.
Since his accident, Clark has been in and out of medical care up to the date of his
hearing.
Clark testified that he could not stand more than 30 minutes, sit more than
30-40 minutes, or walk more than a couple of blocks at a time without his left leg
becoming numb. He reported having difficulty bending, crawling, kneeling,
lifting more than ten pounds, climbing more than 6-7 steps at a time, or grasping
things as a result of bilateral hand weakness. Clark stated that he was able to feed,
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dress and bathe himself, read, watch TV, swim for therapy, help an 8-year-old
prepare for school each day, use Facebook and other internet sites on a computer,
and drive about 20 miles a week. He also stated that he washed dishes, made beds,
and did some laundry and cooking. However, his girlfriend did the vacuuming,
mopping, sweeping, and grocery shopping. Clark reported no problems getting
along with family members or any other people and reported that his concentration
was good.
After hearing Clark‟s testimony at the hearing, the ALJ called a Vocational
Expert. The Vocational Expert classified Clark‟s past work as heavy in exertion
and skilled but with no usable transferable skills. In response to hypothetical
questions, the Vocational Expert opined that although Clark could not perform his
past relevant work because of physical limitations, there were substantial numbers
of jobs that Clark could perform. The Vocational Expert stated that Clark could
perform any of a total of about 3,200 sedentary jobs in the State of Missouri and
249,000 of the same jobs nationwide. The Vocational Expert identified these
sedentary jobs as addressers, assemblers, and charge account clerks; all of which
were consistent with the Dictionary of Occupational Titles (DOT) criteria in terms
of exertion and skill requirements.

Medical Records

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On the day of the accident, Clark received emergency room attention after
injuring his ankle and knee. X-rays of the ankle showed no fracture. However, the
knee was placed in a splint after an x-ray of the left knee showed an undisplaced
left fibular fracture. On August 11, Clark first saw Brian C. Schafer, M.D. an
orthopedist, who applied an immobilizer to the knee despite the fact that Clark was
walking without difficulty at the time. On August 14, 2008, Clark had an MRI
which showed the same fibular head fracture as well as a left lateral medial
meniscus tear, a tear of the medial collateral ligament, and a tibial plateau
contusion. Clark was prescribed Vicodin as a pain medication by Dr. Schafer and
was authorized to get regular refills through February 2009. He was also given a
control motion knee brace which was gradually adjusted to allow Clark greater
motion of his left knee as the pain improved. Dr. Schafer instructed Clark to stay
off of his usual job pending further treatment.
Clark alleged shoulder pain on September 19, 2008 after using crutches for
just over a month. (He had previously has surgery on that shoulder from an earlier
injury). Clark had an MRI of the shoulder on September 26. The MRI showed no
rotator cuff tear or labral injury. Dr. Schafer administered an injection for what he
referred to as right shoulder tendinitis on October 3, 2008.
Clark reinjured his left knee on October 10, 2008 when he slipped on a
driveway. He had an x-ray which showed that the previous fracture, sustained
during the forklift accident, had healed. When he saw his doctor on October 17,
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the doctor reduced the range of motion on the knee brace, and said that therapy on
the shoulder could stop as he had no shoulder pain complaints. On December 9,
2008, Dr. Schafer increased the Clark‟s knee brace to full motion allowance and on
December 30, 2008, Dr. Schafer changed Clark‟s brace from a long leg brace to a
short hinged one. Dr. Schafer instructed Clark to get physical therapy three times a
week and to do nothing more than sedentary work. On January 20, 2009, Dr.
Schafer told Clark that he could do light duty. Then, on February 10, 2009, Dr.
Schafer recommended a two-week course of work hardening to try to restore Clark
to where he could resume his usual maintenance worker job. However, Clark
never saw Dr. Schafer after that date. Clark failed to show for the scheduled
follow-up appointment on February 24, 2009.
On June 24, 2009, Clark began seeing Stefan Scheidler, M.D. On that visit
he reported left leg and right shoulder pain, tingling in his left foot, and new
complaints of lower back pain. Clark was prescribed pain medication by Dr.
Schiedler. On July 8, 2009, Clark reported to Dr. Scheidler that he was “under
stress,” but Dr. Scheidler prescribed no additional medication for anxiety. On July
31, 2009, Clark had an x-ray of the lumbosacral spine which showed only minimal
osteoarthritic lipping. On, August 20, 2009, Clark had additional x-rays. One xray of the back showed only minimal or early degenerative changes to L2-L3 and
another x-ray of the knee was negative.

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Clark saw Barry Burchett, M.D., for a disability determination physical
examination on September 15, 2009. Dr. Burchett reported that he had little
trouble with the left knee although he had some pain on steps. Clark reported a
history of Carpal tunnel problems but Dr. Burchett found no loss of grip strength or
digital dexterity for gross or fine movements in either hand nor any limited range
of motion in any spinal or joint area nor any signs of nerve root compression or
neurological deficit of the back. There was also no evidence of any heart disease.
Dr. Burchett said that Clark described symptoms of fairly significant carpal tunnel
syndrome, but all other physical signs and test results were normal or better.
On April 9, 2010, Clark saw Dr. Michael P. Rogalski, M.D., an orthopedic
surgeon. He reported right shoulder and left knee pain to Dr. Rogalski. To combat
this pain, Dr. Rogalski started Clark on a physical therapy course. Clark
underwent arthroscopic surgery for his right shoulder on May 13, 2010. Following
surgery, Dr. Rogalski instructed Clark to restrict himself to sedentary work and
prescribed him Vicodin. He also told Clark that if he was to wear a shoulder sling
he could participate in light work. By June 29, 2010, Dr. Rogalski had redacted all
limitations he had placed on Clark following surgery and allowed Clark to do full
duty with his right shoulder. The one limitation was Clark was instructed not to lift
more than thirty pounds.
Clark underwent surgery on his left knee for a torn anterior cruciate ligament
on July 15, 2010. As of July 20, 2010, Dr. Rogalski instructed Clark to only do
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seated work. On August 19, 2010, Dr. Rogalski limited claimant to lifting no more
than 20 pounds. He also stated that Clark should not squat or climb. However,
Clark had full range of motion in his right shoulder as of that date and reported
only mild discomfort in his left knee. On September 3, 2010, Dr. Rogalski had to
do an aspiration on Clark‟s left knee to remove some drainage.
On October 20, 2010, Clark reported to Dr. Scheidler that he had numbness
in his hands and legs as well as headaches and insomnia. Clark had an MRI of the
lumbosacral spine on November 8, 2010 which showed some degenerative disc
disease and osteophyte formation at L5-S1 and minimal facet arthritis at L4-L5,
but no evidence of disc herniation, spinal stenosis or nerve root impingement or
compression. On November 22, 2010, Clark reported to Dr. Scheidler that he had
pain in his back and left shoulder as a result of lifting an air conditioning unit. On
December 2, 2010 he reported no change in his back pain, increased severity of his
headaches, as well as a burning sensation in his right hand.
Clark was referred to Su Kin Mo, M.D. by Dr. Scheidler. Dr. Mo, a pain
management specialist, began seeing Clark on December 9, 2010. Dr. Mo
administered an epidural pain injection to the L5-S1 disc space on December 22,
2010. On December 23, 2010, Dr. Mo reported that Clark was doing well with his
medications.

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Clark was prescribed C-PAP therapy for sleep apnea following diagnostic
sleep study tests on February 6 and February 27 of 2011. On March 1, 2011, he
underwent release surgery for left carpal tunnel syndrome. Between March 14,
and March 18 of 2011 he was treated for a left hand abscess.
On July 27, 2011, Dr. Scheidler indicated that Clark could not do even
sedentary work for a sustained basis on a form questionnaire submitted by Clark‟s
attorney. Dr. Scheidler stated that Clark‟s various chronic pains and other
symptoms combined with his prescribed medications that might cause him to
become drowsy would keep him from such work. However, Dr. Scheidler did not
indicate the date on which he last saw Clark to make this analysis.
Legal Standard
A court‟s role is to determine whether the Commissioner‟s findings are
supported by substantial evidence on the records as a whole. See Finch v. Astrue,
547 F.3d 933, 935 (8th Cir. 2008); Growell v. Apfel, 2542 F.3d 793, 796 (8th Cir.
2001). Substantial evidence is less than a preponderance, but is enough that a
reasonable person would find it adequate to support the ALJ‟s conclusion. Prosch
v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). As long as there is substantial
evidence on the record to support the Commissioner‟s decision, a court may not
reverse because substantial evidence exists in the record that would have supported
a contrary outcome, id., or because the court would have decided the case
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differently. Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). Evidence that
supports as well as evidence that detracts from the ALJ‟s decision should be
considered. See Finch 547 F.3d at 925.
To determine whether the decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole to consider:
1. the credibility of the findings made by the Administrative Law Judge;
2. the education, background, work, and age of the claimant;
3. the medical evidence from treating and consulting physicians;
4. the plaintiff‟s subjective complaints relating to extertional and
nonextertional impairments;
5. any corroboration by third parties of the plaintiff‟s impairments; and
6. the testimony of vocational experts when required which is based upon a
proper hypothetical question.
Brand v. Secretary of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th
Cir. 1980).
When evaluating evidence of subjective complaints, the ALJ is never free to
ignore the subjective testimony of the plaintiff, even if it is uncorroborated by
objective medical evidence. Basinger v. Heckler, 725 F.2d 1166, 1169 (8th
Cir.1984). The ALJ may, however, disbelieve a claimant's subjective complaints
when they are inconsistent with the record as a whole. See, e.g., Battles v. Sullivan,
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992 F.2d 657, 660 (8th Cir.1990). In considering the subjective complaints, the
ALJ is required to consider the factors set out by Polaski v. Heckler, 739 F.2d 1320
(8th Cir.1984), which include:
claimant's prior work record, and observations by third parties and treating
and examining physicians relating to such matters as: (1) the objective
medical evidence; (2) the subjective evidence of the duration, frequency, and
intensity of plaintiff's pain; (3) any precipitating or aggravating factors; (4)
the claimant's daily activities; (5) the dosage, effectiveness and side effects
of any medication; and (6) the claimant's functional restrictions.
Id. at 1322.
The ALJ’s Findings
The ALJ issued the following specific findings:
1. The claimant met the special earnings requirements of the Act as of August
17, 2008, the alleged onset of disability, and continues to meet them through
the date of this decision.
2. The claimant has not engaged in substantial gainful activity since August 17,
2008. He did resume work for a short while in 2009, but that work did not
constitute substantial gainful activity in terms of duration of employment.
3. The medical evidence establishes that the claimant has status-post right
shoulder arthroscopic surgery, status-post left knee fracture and torn anterior
cruciate ligament, status-post left carpal tunnel syndrome, mild degenerative
disease of the lumbosacral spine, and recently-diagnosed sleep apnea
controlled by therapy, but no specifically-diagnosed mental impairment and
no impairment or combination of impairments that meets or equals in
severity the requirements of any impairment listed in Appendix 1, Subpart P,
Regulations No. 4.
4. The claimant‟s allegations of impairments, either singly or in combination,
producing symptoms and limitations of sufficient severity to prevent the
performance of any sustained work activity is not credible, for the reasons
set out in the body of this decision.
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5. The claimant has the residual functional capacity to perform the physical
exertional and nonexertional requirements of work except probably for
doing prolonged or frequent standing or walking; lifting or carrying objects
weighing more than 10 pounds; climbing of ropes, ladders or scaffolds;
doing more than occasional climbing or ramps and stairs or more than
occasional balancing, stooping, kneeling, crouching, or crawling; doing
more than occasional overhead reaching with the right upper extremity; or
having concentrated or excessive exposure to unprotected heights or
dangerous moving machinery. There are no credible, medically-established
mental or other nonextertional limitations (20 CFR 404.1545 and 416.945).
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).
7. The claimant‟s residual functional capacity for the full range of at least
sedentary work is reduced by the limitations described in Finding No. 5.
8. The claimant is 42 years old, defined as a younger individual (20 CFR
404.1563 and 416.963).
9. The claimant is a high school graduate (20 CFR 404.1564 and 416.964).
10. The claimant has acquired but not usable skills transferable to the skilled or
semi-skilled functions of other work (20 CFR 404.156 and 416.96).
11. Based on extertional functional capacity for at least sedentary work, and the
claimant‟s age, education, and work experience, 20 CFR 404.1569 and
416.969 and Rule 201.28, Table No. 1, Appendix 2, Subpart P, Regulations
No. 4 would direct a conclusion of “not disabled.”
12. Although the claimant‟s limitations do not allow the performance of the full
range of sedentary work, there is, using the above-cited Rule as a framework
for decision-making, a significant number of jobs in the local and national
economies which the claimant could perform. Examples of such jobs are any
of a total of about 3200 sedentary jobs in the State of Missouri and 249,000
of the same jobs nationwide as an addresser, assembler, and charge account
clerk, according to vocational expert opinion.
13. The claimant was not under a “disability,” as defined in the Social Security
Act, at any time through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).
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Discussion
When reviewing a denial of Social Security benefits, a court cannot reverse
an ALJ's decision simply because the court may have reached a different outcome,
or because substantial evidence might support a different outcome. Jones ex rel.
Morris v. Barnhart, 315 F.3d 974, 977 (8th Cir.2003); Woolf v. Shalala, 3 F.3d
1210, 1213 (8th Cir.1993). Rather, the court's task is a narrow one: to determine
whether there is substantial evidence on the record as a whole to support the ALJ's
decision. 42 U.S.C. § 405(g); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir.2002).
The answer to that question is yes.
First, Clark argues that because of his injuries he should have been entitled
to a closed period of disability and therefore the ALJ decision is not supported by
substantial evidence. Clark argues that the ALJ should have considered his
impairments as a whole instead of taking each injury and assessing it separately.
However, the ALJ did acknowledge that Clark had multiple serious injuries and
did take all the injuries into consideration as a whole but still concluded that no
closed period of disability was necessary. Clark reports that he continuously
complained of chronic left knee, left leg, shoulder, and carpal tunnel symptom
induced pain but that continuousness was not reflected in the discontinuous
treatment Clark sought.
It was the ALJ‟s problem with the exaggeration of Clark and the gaping
holes in the treatment timeline that led to the ALJ‟s conclusion that there should be
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no period of disability. When evaluating evidence of subjective complaints, the
ALJ is never free to ignore the subjective testimony of the plaintiff, even if it is
uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d
1166, 1169 (8th Cir.1984). The ALJ may, however, disbelieve a claimant's
subjective complaints when they are inconsistent with the record as a whole. See,
e.g., Battles v. Sullivan, 992 F.2d 657, 660 (8th Cir.1990). In this case, the ALJ
believed that Clark‟s subjective testimony is exaggerated. This belief is supported
with substantial evidence.
Second, Clark argues that the ALJ erred in discrediting the opinion of Dr.
Scheidler. As stated in Goff v. Barnhart, “„[A] treating physician's opinion is
given controlling weight if it is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence.‟” Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.2005) (quoting
Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.2005) (internal marks omitted)).
However, “„A treating physician's opinion does not automatically control, since the
record must be evaluated as a whole.‟” Id. (quoting Bentley v. Shalala, 52 F.3d
784, 786 (8th Cir.1995) (internal marks omitted)). “An ALJ may „discount or even
disregard the opinion of a treating physician where other medical assessments are
supported by better or more thorough medical evidence, or where a treating
physician renders inconsistent opinions that undermine the credibility of such
opinions.‟” Id. (quoting Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir.2000)).
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The ALJ in this case adequately explained his reasoning for discounting Dr.
Scheidler‟s opinion. First, Dr. Scheidler‟s opinion in response to the lawyer‟s
request is inconsistent with anything Dr. Scheidler had said before that as well as
with all of the records from Dr. Schafer, Dr. Rogalski, and Dr. Mo. Second, in the
opinion, Dr. Scheidler failed to indicate when he last saw Clark and there is no
evidence that Dr. Scheidler had seen Clark since March 2011. The conclusion of
the ALJ to discredit this assertion is supported by substantial evidence.
Third, Clark argues that the ALJ erred when concluded that Clark retained
the residual functional capacity to perform sedentary work activity. However, the
ALJ based his conclusion on statements made by the vocational expert, based on
an accurate assessment of Clark‟s impairments, age, education, and work
experience. The ALJ took into consideration Clark‟s exaggeration of some of his
complaints, his infrequent visits to the doctor and his testimony as to his daily
activities which, although restricted, are consistent with his ability to do sedentary
work. These conclusion are supported by the evidence.
Conclusion
Remand is unnecessary because the record contains substantial evidence
supporting the finding that Clark retains the residual functional capacity to perform
available sedentary work despite his impairments. Clark's remaining arguments are
without merit. The ALJ properly posed hypotheticals to the vocational expert and
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adequately considered the effects of all Clark‟s impairments that the ALJ found
credible. The Commissioner, therefore, met his burden of proving that Clark was
capable of performing other jobs in the national economy that are consistent with
Clark‟s medically determinable impairments, age, education, and work experience.
For the aforementioned reasons, the ALJ‟s determination that Steven Clark
was not disabled is supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed. A separate judgment in accordance with this Memorandum and Order is
entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 18th day of February, 2014.

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