Hogenmiller v. Social Security Administration

Filing 22

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the final decision of the Commissioner denying social security benefits is AFFIRMED. An appropriate Judgment shall accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 3/16/2015. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAUL HOGENMILLER,
Plaintiff,
V.

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 1:14CV4 RLW

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of
Defendant' s final decision denying Plaintiffs applications for Disability Insurance Benefits
("DIB") under Title II of the Social Security Act and for Supplemental Security Income ("SSI")
under Title XVI of the Act. For the reasons set forth below, the Court affirms the decision of the
Commissioner.
I. Procedural History

On July 25, 2008, Plaintiff filed applications for DIB and SSI alleging disability
beginning June 30, 2008 due to breathing problems, high blood pressure, and a broken right arm.
(Tr. 108, 244-50, 358) The applications were denied, and Plaintiff filed a request for a hearing
before an Administrative Law Judge ("ALJ"). (Tr. 84-85 , 108-14) On October 5, 2009, Plaintiff
appeared before an ALJ without counsel. (Tr. 32-45) Plaintiff retained an attorney and testified
at another hearing on March 15, 2010. (Tr. 46-59) On May 19, 2010, the ALJ determined that
Plaintiff had not been under a disability from June 30, 2008, through the date of the decision.
(Tr. 89-96) Plaintiff then filed a request for review, and on July 21 , 2011 , the Appeals Council
remanded the case to the ALJ for further consideration. (Tr. 100) Following a remand hearing

held on June 14, 2012, a different ALJ also found that Plaintiff was not under a disability at any
time through June 30, 2008 or through the date of the decision. (Tr. 12-26, 65-83) On
November 18, 2013_, the Appeals Council denied Plaintiff' s request for review. (Tr. 1-3) Thus,
the decision of the ALJ stands as the final decision of the Commissioner.

II. Evidence Before the ALJ
At the October 5, 2009 hearing, Plaintiff testified that he was treated by Dr. Berg for
congestive heart failure and a kidney deficiency. Another doctor had indicated that sleep apnea
could be the cause of Plaintiffs congestive heart failure. Plaintiff testified that he played up to
three shows a month as a musician, but that he could not do what he used to do and needed
people to help carry his equipment. The ALJ recommended that Plaintiff find an attorney. (Tr.
34-44)
Plaintiff appeared at a subsequent hearing with counsel on March 15, 2010. He testified
that he was self-employed as a musician. He played guitar, harmonica, fiddle, and he also sang.
He required help setting up and lifting heavy items. He further stated that his conditions caused
a lack of energy, and his right arm that he previously broke did not work as it did before. His
arm ached, and Plaintiff believed that doctors set it wrong because his arm was still crooked.
Plaintiff also had congestive heart failure, high blood pressure, depression, and borderline
diabetes. Before the accident, he experienced sleep problems and dizziness when walking to the
mailbox. He also had decreased appetite. Plaintiff continued to experience dizziness and sleep
problems after the accident. He used a CPAP machine to help with sleep. He' d always dealt
with depression, and medication helped but did not alleviate the symptoms. His symptoms
included feeling gloomy, sleeping too much, and lack of energy. (Tr. 48-58)

2

At the June 14, 2012 remand hearing, Plaintiff was again represented by counsel.
Plaintiff testified that he resided in Sainte Genevieve, Missouri with his mother. He weighed
319 pounds and measured 5 feet 6 inches. Plaintiff did not have medical insurance. He worked
as a musician over the past 15 years. He currently performed one show per month. He made
$4,000 in 2011 and maybe $5,000 in 2010. Plaintiff could not afford all of his expenses, which
is why he lived with his mother. He also needed to purchase items for his shows. His shows
lasted about 3 to 4 hours, and he performed 45 minutes at a time, with a 15 minute break
between sessions. His job required him to lift and carry speakers and amplifiers. He tried to get
people to help him but sometimes had to lift things himself. Plaintiff testified that lifting caused
problems in his back and legs, which he felt the next day. (Tr. 68-71)
He stated that he was injured in a car accident in July of 2008. He broke his right wrist,
which was still crooked. Plaintiff continued to experience pain, discomfort, and limitations. The
pain was consistent but worse in bad weather. Playing the guitar increased the pain, and he was
unable to play properly due to aches and stiffness. Plaintiff also testified regarding pain and
limitations in his back and his legs. The pain was consistent in his lower back and he had
difficulty standing and sitting straight. Any activities such as walking increased the pain and
limitations. The day after a show, Plaintiff was in bed all day. With regard to his legs, Plaintiff
testified that they were weak from the knees down. Both knee joints sometimes popped, locked
up, or gave out. Plaintiff also experienced problems breathing and sleeping. He became heavy
winded just walking across a room. Dr. Berg tested Plaintiffs oxygen levels, which were
normal. However, Plaintiff stated that Dr. Berg did place lifting restrictions on Plaintiff. (Tr.
71-75)

3

Plaintiff further testified that he was diagnosed with diabetes. He could no longer eat
whatever he wanted. Other symptoms included falling asleep after he ate. He attributed his
fatigue to either diabetes or blood 'pressure. He no longer tested his blood sugars because he was
unable to afford the testing supplies. He went to Dr. Berg every three months to have his blood
sugar levels tested. In addition, Dr. Berg referred Plaintiff to a psychiatrist, but Plaintiff did not
keep his appointment. Plaintiff explained that he believed doctors were conning him because he
already knew he was depressed due to his money and health situations. Plaintiff took Prozac but
was unsure whether it helped. Plaintiff was also diagnosed with sleep apnea. He used a cpap
every night, which was uncomfortable but helped him sleep. (Tr. 75-78)
Plaintiff stated that he performed chores, which included mowing the lawn on a riding
mower. He also did laundry, prepared meals, and took out the trash. Plaintiff was able to
grocery shop, but he took his time. Plaintiff thought he could stand in one spot without leaning
on anything for about 5 minutes. He had problems standing still and usually rocked from leg to
leg because of his back and pressure on his feet. He could stand for a 45-minute performance,
but he did not stand still and sometimes sat down. Plaintiff testified that he 'could not walk very
far without losing his breath. He could only sit for about 10 to 15 minutes before needing to
change positions due to back discomfort. Plaintiff slept about 8 or 9 hours a night and spent
about 2 more ho.urs lying down during the day. He did not qualify for Medicaid. (Tr. 78-82)
Plaintiff completed a Disability Report - Adult, indicating that he was 5 feet 6 inches tall
and weighed 320 pounds. He reported breathing problems, high blood pressure, and broken right
arm and stated that his accident and prior medical problems prevented him from working. (Tr.
350-57)

4

In a Function Report - Adult, Plaintiff stated that a typical day involved getting up, going
to the restroom, and eating breakfast. He then washed the dishes and did laundry. He ran
errands around town and sometimes repaired his musician equipment. Plaintiff made lunch,
washed dishes, then he rested. After checking emails, he made dinner, washed dishes, and rested
until bed time. Plaintiff previously was able to book shows and carry equipment. He was awake
a lot during the night. Plaintiff reported that he could handle his personal care, prepare meals
daily, and do laundry. He lived in an apartment that did not require yard work. He tried to get
the mail every day but experienced chest pain and problems breathing. He could shop for
groceries, household products, and necessities. Plaintiff enjoyed reading, watching TV, listening
to music, and playing music if able. He socialized with friends and family via email and visits.
Plaintiff further reported that his conditions affected his ability to lift, squat, bend, stand, reach,
walk, kneel, stair climb, complete tasks, and use hands. He had problems standing due to
breathing difficulties and performing too many physical activities. He was right-handed and
believed he could walk 20 feet before needing to rest 5 to 10 minutes. He had no problems with
paying attention, finishing what he started, following written instructions, following spoken
instructions, or getting along with authority figures. He could handle stress and changes in a
routine. (Tr. 361-68)

III. Medical Evidence
On June 21 , 2008, Dr. Dan Frissell treated Plaintiff for complaints of cough, chest
congestion, and shortness of breath. Plaintiff also complained of fluid in lungs, stomach pain,
and dizziness. Dr. Frissell noted that Plaintiff was uncomfortable with congestion and was
overweight. He diagnosed cough, upper respiratory infection, acute sinusitis, hypertension, and

5

obesity. Dr. Frissell prescribed medication and advised Plaintiff to return in one week if he did
not improve. (Tr. 412-16)
On July 18, 2008, Plaintiff presented to the Ste. Genevieve County Memorial Hospital
Emergency Department after he ran off the road while driving 30 to 45 miles per hour. An x-ray
of Plaintiffs right wrist showed a fracture of his distal radius. (Tr. 426-30)
On July 21, 2008, Scott VanNess, D.O., performed a closed reduction with manipulation
of a right distal radius fracture. Dr. V anNess also observed a fairly significant blood pressure
elevation and recommended that Plaintiff follow-up with his primary care physician for
monitoring. (Tr. 425, 437)
On July 22, 2008, Plaintiff followed up with Dr. Frissell. Dr. Frissell noted that
Plaintiffs blood pressure was elevated. Plaintiff complained of dizziness when getting up
quickly, nausea, loss of appetite, and fatigue. He also complained of chest pain where the air bag
hit, joint pain after the accident, and anxiety over his blood pressure and weight. He denied
shortness of breath or urinary frequency. Dr. Frissell diagnosed hypertension, obesity, and
fracture of the upper forearm. (Tr. 406-10)
On August 19, 2008, Plaintiff presented for treatment with Sanjay Sharma, D.O. He
complained of pain in his stomach, swelling in his ankles and trouble breathing. Plaintiff
reported that his legs had been swelling for the past year. Dr. Sharma assessed hypertension,
peripheral edema, and obesity. (Tr. 484) Plaintiff returned to Dr. Sharma on August 26, 2008,
and he added new onset diabetes and a renal impairment to his impressions. (Tr. 488)
Plaintiff was treated by Dr. Snehal Gandhi on September 10, 2008, at the request of
Plaintiffs primary care physician because Plaintiff was unable to afford tests. Plaintiff reported
an abrupt onset of shortness of breath about a year ago. He also had progressive weight gain and

6

hardening of the abdomen wall. Upon examination, Dr. Gandhi noted that Plaintiff appeared
comfortable sitting up. Dr. Gandhi diagnosed obesity and edema of the legs and abdominal wall.
(Tr. 463-64) Plaintiff returned to Dr. Gandhi on September 25, 2008, reporting continued
shortness of breath, but improved activity capacity. Dr. Gandhi noted that Plaintiffs lower
extremity and abdominal edema had decreased, and he assessed improved congestive heart
failure. (Tr. 462)
On October 15, 2008, Plaintiff reported feeling much better. Dr. Ghandi noted that
Plaintiffs chronic right-sided congestive heart failure was reaching maximum therapeutic
efficacy. Plaintiff continued to have edema in his lower extremities. Gandhi recommended that
Plaintiff wear leg hose for swelling. (Tr. 460) On November 17, 2008, Plaintiff reported that he
had lost dietary motivation. Examination of Plaintiffs legs showed chronic brawny edema. Dr.
Gandhi assessed congestive heart failure, fairly well compensated. He advised Plaintiff to watch
his diet and continue his diuretics. (Tr. 458)
On February 23, 2009, Plaintiff returned to Dr. Gandhi and stated that he was well.
He complained of periodic leg swelling, although Dr. Gandhi noted that Plaintiffs lower
extremities were free of edema. Dr. Gandhi assessed metabolic syndrome and congestive
heart failure. (Tr. 457) On Maren 23, 2009, Dr. Gandhi noted that Plaintiff had made
significant therapeutic gains with Crestor. Plaintiff reported making dietary changes and
increasing aerobic activity. Dr. Gandhi recommended an increase in Plaintiffs aerobic
activity to one hour per day. (Tr. 455)
On July 21, 2009, Plaintiff began primary care treatment with Daniel Berg, M.D. Plaintiff
reported that his swelling was much improved. Dr. Berg obtained a history from Plaintiff and
refilled his medications. (Tr. 451)

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On July 28, 2009, Plaintiff underwent an echocardiogram at St. Anthony's Medical
Center. The views were limited due to Plaintiff's obesity. However, the report indicated that
values were within normal range. (Tr. 4 77)
Plaintiff returned to Dr. Berg on September 2, 2009. Plaintiff reported feeling fine, and
Dr. Berg noted no swelling in Plaintiff's ankles. Dr. Berg further noted that Plaintiff was
scheduled for a sleep study, and if the study was negative, he would refer Plaintiff to cardiology.
(Tr. 447)
On September 21, 2009, Plaintiff had an all-night polysomogram (sleep study) at the
Washington University School of Medicine due to symptoms of snoring, witnessed apneas,
gasping for air, and morning headaches. The results were abnormal, showing moderate
obstructive sleep apnea syndrome. (Tr. 475) A follow-up polysornnogram on September 30,
2009 indicated that Plaintiffs moderate sleep apnea worsened to severe in REM and in supine
sleep. The optimal C-PAP pressure for Plaintiff was 12 cm H20. (Tr. 527-28)
On October 6, 2009, Plaintiff saw Dr ..Berg and indicated that he had undergone a
sleep study and would be getting a C-PAP machine. Plaintiff also complained of occasional
dull pain in the left side o~ his chest, associated with a fluttering sensation. Dr. Berg noted
edema in Plaintiff's legs, as well as a flat affect. Dr. Berg assessed probable depression and
recommended a trial of Prozac. Dr. Berg also noted that an echocardiogram had shown
decreased systolic function. (Tr. 446)
Plaintiff saw Dr. Berg again on December 1, 2009. Plaintiff reported that his mood h~d
been a little low, but he did not have shortness of breath or chest pains. Dr. Berg doubled
Plaintiffs dosage of Prozac and also assessed low back pain. (Tr. 558)

8

Dr. Berg completed a physical medical source statement on December 1, 2009. Dr. Berg
indicated diagnoses of congestive heart failure - diastolic dysfunction; chronic renal
insufficiency; obstructive sleep apnea; diet controlled diabetes; low back pain; and depression.
He opined that Plaintiffs balance was limited and that he sometimes felt dizzy. Dr. Berg
believed that, at one time and without a break, Plaintiff could sit for 2 hours, stand for 60-90
minutes, and walk for 60-90 minutes. During an 8 hour workday, Plaintiff could sit for an
unlimited amount of time, stand 3-5 hours, and walk about 2 hours. He could lift and carry up to
25 pounds occasionally and 2-5 pounds continuously. Additionally, Dr. Berg opined that
Plaintiff could rarely stoop, crouch, crawl, or climb ladders or scaffolds. He could frequently
reach above his head. Dr. Berg noted that Plaintiff could rarely tolerate odors or dust, or
exposure to temperature or humidity extremes. Dr. Berg believed that Plaintiff was significantly
limited in his ability to perform gross handling with his right hand, as well as reduced grip
strength or pain upon gripping with his right hand due to a previous wrist fracture. Dr. Berg
further opined that, based on Plaintiff subjective complaints, Plaintiffs low back pain was a
medically determinable impairment that could be expected to produce pain. He stated that this
pain occurred daily, all day. Dr. Berg further stated that Plaintiff would not need to lie down or
take a nap, but he needed to take hourly breaks every hour during an 8 hour workday. Dr. Berg
opined that the above limitations had been present for twelve continuous months. (Tr. 544-4 7)
On February 1, 2010, Plaintiff reported depression and weight gain. He did not have
edema. br. Berg increased Plaintiffs dosage of Prozac and noted that Plaintiffs hypertension
was well controlled. (Tr. 603) On April 10, 2010, Plaintiff reported to Dr. Berg that he felt
dizzy and nauseous for the previous three days, which was causing him to have problems with
balance. Dr. Berg noted that Plaintiff had some mild dehydration. (Tr. 600)

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On May 3, 2010, Plaintiff saw cardiologist Dr. James M. Perschbacher, who noted that
Plaintiff had undergone a stress test, which was unremarkable. Plaintiff complained of
occasional discomfort, which was random and not associated with exertion. He felt short of
breath, likely due to increased weight. Overall, Plaintiff reported feeling fine. He had no lower
extremity edema, and physical examination was normal. Dr. Perschbacher assessed shortness of
breath, likely multi-factorial due to diastolic dysfunction as well as deconditioning. He also
assessed hypertension, hyperlipidemia, and antiplatelet regimen. (Tr. 574-75)
Plaintiff returned to Dr. Berg on July 19, 2010. Plaintiff reported feeling okay, but he
was upset that his disability application was denied. He did not have edema or shortness of
breath, but he felt his conditions limited his ability to do work or exercise. He also noted feeling
very tired after eating, which Dr. Berg believed was due to Plaintiffs diabetes. (Tr. 597) On
November 8, 2010, Dr. Berg noted that Plaintiff had gained 21 pounds since his previous visit.
Plaintiff reported that he ran out of medications due to lack of money. (Tr. 593)
On February 5, 2011 , Dr. Berg noted that Plaintiffs diabetes was diet controlled until
now and prescribed glipizide. (Tr. 591) Plaintiff returned to Dr. Berg on May 2, 2011 , with
complaints of low mood, general fatigue, and trouble with his knees. He reported no chest pain
or discomfort and no dyspnea. He ran out of glipizide a week prior. He no longer wanted to
take an anti-depressant, and he was not interested in counseling. Dr. Berg assessed chronic
kidney disease Stage 3; congestive heart failure, New York Heart Association Class 2; essential
hypertension, elevated today; obesity; type 2 diabetes mellitus, uncomplicated and controlled
improved with glipizide; and obstructive sleep apnea using CP AP. (Tr. 5 87-89).
When Plaintiff returned to Dr. Berg on June 7, 2011, he complained that his right knee
had been clicking, popping, and throbbing for the previous month or two. He also reported

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missing his diabetes medications for 4 days and not being careful with his diet. Upon
examination, Plaintiff was in no acute distress, but his knees exhibited abnormalities, with
crepitus on the right. Dr. Berg noted that Plaintiffs hypertension was much better on
medications. He added a diagnosis of osteoarthritis of the knee. (Tr. 583-84)
On August 29, 2011 , Dr. Charles Mannis performed a consultative examination. Plaintiff
complained of right wrist injury, back pain, and knee pain, right greater than left. Upon
examination, Dr. Mannis noted that Plaintiffs stance and gait were normal. He had full range of
motion of the cervical spine and up to 75 degrees flexion of the lumbar spine. Dr. Mannis also
noted a slight radial deformity of the right wrist with radial deviation and prominence of the
ulnar styloid. Dr. Mannis assessed limited range of motion in Plaintiffs right wrist and 4/5 grip
strength of the right hand. Dr. Mannis diagnosed status post right distal radius fracture, chronic
low back pain, and bilateral knee pain with possible mild arthritis, right greater than left. (Tr.
562-64, 571-72)
Dr. Mannis also completed a medical source statement, wherein he opined that Plaintiff
could frequently lift or carry up to ten pounds, and occasionally lift or carry up to fifty pounds.
Dr. Mannis stated that Plaintiff could sit for 4 hours, stand for 2 hours, and walk for 2 hours
during an 8 hour workday. At one time, Plaintiff could sit for 30 minutes, stand for 20 minutes,
and walk for 20 minutes. In addition, Plaintiff could frequently reach, handle, finger, feel, and
push/pull with the right hand, as well as continuously perform these activities with the left hand.
He could operate foot controls with both feet occasionally. Further, Dr. Mannis opined that
Plaintiff could occasionally climb stairs, ramps, ladders, or scaffolds; balance; stoop; kneel ;
crouch; or crawl. He could occasionally tolerate exposure to unprotected heights, moving
mechanical parts, and operation of a motor vehicle. Plaintiff was able to perform activities such

11

as shopping and preparing meals. Dr. Mannis was unable to determine when Plaintiff's
limitations were first present. (Tr. 565-70)
Plaintiff followed up with Dr. Berg on November 8, 2011. He was generally okay but
reported some congestion. Plaintiff reported sleeping better. However, he had been eating
candy and not taking his medications, which he attributed to mild depression. Plaintiff had lost
his medical insurance. Dr. Berg assessed essential hypertension; chronic kidney disease, stage 3,
obesity, type 2 diabetes mellitus, uncomplicated and controlled; and obstructive sleep apnea. He
suggested that Plaintiff see a counselor to help him with depression and motivational issues.
Plaintiff was agreeable. (Tr. 579-82)
On December 7, 2011 , Dr. Berg stated that he had not been trained to assess functional
limitations associated with disability claims. He opined, however, that Plaintiff had a significant
disability from his chronic medical problems fach that he could not work. (Tr. 620) Plaintiff
returned to Dr. Berg for medication refills on February 6, 2012. Plaintiff complained of
problems with bladder control over the past 1-2 years. He also reported always being tired.
Plaintiff had no swelling in his legs or chest pain, but examination revealed trace edema in the
extremities. Plaintiff further reported that he could not walk more than 100 feet without feeling
short of breath. Dr. Berg assessed congestive heart failure euvolemic, overflow incontinence,
diabetes mellitus, fatigue, and obstructive sleep apnea. He prescribed medication for
incontinence, in addition to other medications. (Tr. 614-17)

IV. The ALJ's Determination
In a decision dated July 10, 2012, the ALJ thoroughly assessed the medical records, as
well as Plaintiff's testimony and subjective complaints. The ALJ found that Plaintiff met the
special earnings requirements of the Social Security Act as of June 30, 2008, his alleged onset

12

date, and continued to meet them through that date, but not thereafter. He had not engaged in
substantial gainful activity since June 30, 2008, but he continued to work steadily as a musician.
The ALJ further determined that Plaintiff had obesity, metabolic syndrome, diabetes mellitus,
hypertension, hyperlipidemia, sleep apnea, probable mild osteoarthritis of his right knee, a
history of two episodes ofright-sided congestive heart failure, chronic kidney disease, and
history of mild depression. However, no impairment or combination thereof met or equaled any
impairment listed in Appendix 1, Subpart P, Regulations No. 4. The impairments were either not
severe, or they were controlled or controllable by medication. (Tr. 15-25)
The ALJ found Plaintiffs allegation of impairment producing symptoms and limitations
of sufficient severity to prevent the performance of any work activity was not credible. The ALJ
determined that Plaintiff had the residual functional capacity ("RFC") to perform the physical
exertional and nonexertional requirements of work except for lifting or carrying more than 10
pounds frequently and 20 pounds occasionally. He was also limited to doing no more than
occasional climbing, stooping, kneeling, crouching, crawling, or bending. The record did not
establish mental or other nonexertional limitations such as in fingering, handling, reaching, or
basic balancing. TheALJ found that Plaintiffs limitations did not prevent him from performing
his past relevant work as an instrumental and vocal musician. Therefore, the ALJ concluded that
Plaintiff was not under a disability at any time through June 30, 2008 or the date of the decision.
(Tr. 25-26)
V. Legal Standards

A claimant for social security disability benefits must demonstrate that he or she suffers
from a physical or mental disability. The Social Security Act defines disability "as the inability
to do any substantial gainful activity by reason of any medically determinable physical or mental

13

impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a).
To determine whether a claimant is disabled, the Commissioner engages in a five step
evaluation process. See 20 C.F.R. § 404.1520(a)(4). Those steps require a claimant to show: (1)
that claimant is not engaged in substantial gainful activity; (2) that he has a severe physical or
mental impairment or combination of impairments which meets the duration requirement; or (3)
he has an impairment which meets or exceeds one of the impairments listed in 20 C.F.R.,
Subpart P, Appendix 1; (4) he is unable to return to his past relevant work; and (5) his
impairments prevent him from doing any other w~rk. Id.
The Court must affmn the decision of the ALJ if it is supported by. substantial evidence.
42 U.S.C. § 405(g). "Substantial evidence means less than a preponderance, but sufficient
evidence that a reasonable person would find adequate to support the decis.ion." Hulsey v.

Astrue, 622 F.3d 917, 922 (8th Cir. 2010). "We will not disturb the denial of benefits so long as
the ALJ's decision falls within the available zone of choice. An ALJ's decision is not outside the
zone of choice simply because we might have reached a different conelusion had we been the
initial finder of fact." Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (citations and internal
quotations omitted). Instead, even if it is possible to draw two different conclusions from the
evidence, the Court must affirm the Commissioner's decision if it is supported by substantial
evidence. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.2000).
To determine whether the Commissioner's final decision is supported by substantial
evidence, the Court must review the administrative record as a whole and consider: (1) the
credibility findings made by the ALJ; (2) the plaintiffs vocational factors; (3) the medical
evidence from treating and consulting physicians; (4) the plaintiff's subjective complaints

14

regarding exertional and non-exertional activities and 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 that sets forth the plaintiff's
impairment. Johnson v. Chafer, 108 F.3d 942, 944 (8 1h Cir. 1997) (citations and internal
quotations omitted).
The ALJ may discount a plaintiff's subjective complaints if they are inconsistent with the
evidence as a whole, but the law requires the ALJ to make express credibility determinations and
set forth the inconsistencies in the record. Marciniak v. Shalala, 49 F.3d 1350, 1354 (8th Cir.
1995). It is not enough that the record contain inconsistencies; the ALJ must specifically
demonstrate that she considered all the evidence. Id. at 1354.
When a plaintiff claims that the ALJ failed to properly consider subjective complaints,
the duty of the court is to ascertain whether the ALJ .considered all of the evidence relevant to
plaintiff's complaints under the Polaski 1 factors and whether the evidence so contradicts
plaintiff's subjective complaints that the ALJ could discount the testimony as not credibl~.
Blakeman v. Astrue, 509 F.3d 878, 879 (8th Cir. 2007) (citation omitted). If inconsistencies in
the record and a lack of supporting medical evidence support the ALJ' s decision, the Court will
not reverse the decision simply because some evidence may support the opposite conclusion.
Marciniak, 49 F.3d at 1354.
VI. Discussion
1

The Eight Circuit Court of Appeals "has long required an ALJ to consider the following
factors when evaluating a claimant's credibility: '(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."' Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quoting Moore v.
Astrue, 572 F.3d 520, 524 (8th Cir. 2009)) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th
Cir. 1984)).
15

Plaintiff raises two arguments in his Brief in Support of the Complaint. First, he claims
that the ALJ erred by failing to find a severe medically determinable impairment related to
Plaintiffs history of right wrist fracture. Second, Plaintiff asserts that the ALJ' s decision is not
supported by substantial evidence because the ALJ failed to properly determine Plaintiffs RFC.
Defendant responds that the ALJ properly determined that Plaintiffs history of right wrist
fracture is not severe. Further, Defendant asserts that the ALJ properly determined Plaintiffs
RFC by correctly assessing Plaintiffs subjective allegations and the credible medical evidence.
Upon review of the record and the parties' briefs, the Court finds that substantial evidence
supports the ALJ' s determination, and the Commissioner' s decision will be affirmed.
A. Plaintiff's History of Right Wrist Fracture
Plaintiff argues that the ALJ erred in not finding that Plaintiffs history of right wrist
fracture was a severe impairment. Plaintiff contends that two physicians assessed right hand and
wrist limitations. Specifically, Plaintiff relies on Dr. Bert's 2009 opinion that Plaintiff was
significantly limited in his ability to handle large objects with his right hand and that he had
reduced grip strength and pain when gripping. (Tr. 546) Plaintiff also points to Dr. Mannis'
2011 opinion indicating reduced range of motion and grip strength, as well as only frequent use
of the right hand to reach, handle, finger, feel, push, or pull. (Tr. 563, 567, 571) Defendant
asserts that the ALJ properly determined that the history of right wrist fracture was not severe.
The undersigned agrees with the Defendant.
Plaintiff has the burden of establishing that his impairment or combination of
impairments is severe. Kirby v. Astrue, 500 F.3d 705, 707-08 (8 1h Cir. 2007) (citations omitted).
"Severity is not an onerous requirement for the claimant to meet, . . . , but it is also not a
toothless standard, and we have upheld on numerous occasions the Commissioner' s finding that

16

a claimant failed to make this showing." Id. at 708 (internal citation and citations omitted).
Under the regulations, an impairment is not severe "if it does not significantly limit your physical
or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). Relevant to this case,
basic work activities include " [p ]hysical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling. " 20 C.F.R. § 404.1521(b)(l). " An impairment
or combination of impairments are not severe if they are so slight that it is unlikely that the
claimant would be found disabled even if his age, education, and experience were taken into
consideration." Calhoun v. Astrue, No. 1:10CV186MLM, 2012 WL 718622, at *9 (E.D. Mo.
March 6, 2012) (citing Bowen v. Yuckert, 482 U.S . 137, 153 (1987)).
With regard to Dr. Berg, the ALJ considered his opinion regarding Plaintiffs wrist
limitations but properly discounted the opinion as inconsistent with other medical evidence and
Dr. Berg' s own treatment notes. (Tr. 21 ) "A treating physician' s opinion should not ordinarily
be disregarded and is entitled to substantial weight ... provided the opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in the record." Singh v. Apf 222 F.3d 448, 452 (8th Cir. 2000)
el,
(citations omitted); see also SSR 96-2P, 1996 WL 374188 (July 2, 1996) ("Controlling weight
may not be given to a treating source' s medical opinion unless the opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques."). The ALJ need not give
controlling weight to a treating physician' s opinion where the physician' s treatment notes were
inconsistent with the physician' s RFC assessment. Goetz v. Barnhart, 182 F. App'x 625 , 626
(8th Cir. 2006). Further, " [i]t is appropriate to give little weight to statements of opinion by a
treating physician that consist of nothing more than vague, conclusory statements." Swarnes v.

Astrue, Civ. No. 08-5025-KES, 2009 WL 454930, at* 11 (D.S.D. Feb. 23 , 2009) (citation

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omitted); see also Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (finding that the ALJ
properly discounted a treating physician' s opinion where it consisted of checklist forms, cited no
medical evidence, and provided little to no elaboration).
Here, Dr. Berg' s treatment notes do not reflect complaints of wrist pain or limitations.
Indeed, Dr. Berg did not perform any objective tests on Plaintiffs wrist that would support Dr.
Berg' s opinion ofright wrist limitations. Because the opinion is void of any supporting medical
tests and is inconsistent with treatment notes, the ALJ properly discounted this opinion. See
Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Goetz v. Barnhart, 182 F. App'x 625, 626 (8th
Cir. 2006). Additionally, Plaintiff was able to use his right hand to play guitar for work as a
musician. "Working generally demonstrates an ability to perform a substantial gainful activity."
Goff v. Barnhart, 421 F.3d 785, 793 (8 1h Cir. 2005) (citation omitted).
Likewise, Dr. Mannis ' opinion fails to demonstrate a severe impairment. The
examination revealed slight flexion limitation and a slight decrease in grip strength. (Tr. 563 ,
· 571) Dr. Mannis opined that Plaintiff could frequently use his right hand for reaching? handling,
fingering, feeling, pushing, and pulling. This opinion, in conjunction with Dr. Berg' s treatment
notes and Plaintiffs own allegations indicating an ability to use his right hand to play guitar and
perform a wide range of physical activities involving the use of his right arm, indicates that his
history of right wrist fracture has no more than a minimal impact on his ability to perform basic
work activities.

Kirby, 500 F.3d at 708. Therefore, the undersigned finds that the ALJ properly

determined that Plaintiffs history of right wrist fracture was non-severe. Id.

B. The ALJ's RFC Determination
Plaintiff next argues that substantial evidence does not support the ALJ' s RFC
determination because the medical evidence established limitations in Plaintiffs ability to use his

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right hand. The Defendant responds that the ALJ incorporated into Plaintiffs RFC only those ·
impairments and restrictions that the ALJ found credible. Defendant argues that because the
ALJ properly discounted the opinions of Dr. Berg and Dr. Mannis regarding the use of Plaintiffs
right wrist and properly assessed Plaintiffs credibility, substantial evidence supports the RFC
determination. The Court agrees with Defendant.
With regard to Plaintiffs residual functional capacity, "a disability claimant has the
burden to establish her RFC. " Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004)
(citation omitted). The ALJ determines a claimant's RFC "' based on all the relevant evidence,
including medical records, observations of treating physicians and others, and [claimant' s] own
description of her limitations. "' Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting

Anderson v. Shala/a, 51 F.3d 777, 779 (8th Cir. 1995)). RFC is defined as the most that a
claimant can still do in a work setting despite that claimant's limitations. 20 C.F.R. §
404.1545(a)(l ).
At the outset, the Court notes that Plaintiffs activities are inconsistent with his
allegations of disability, and specifically with his allegation of severe limitations in the use of his
right wrist. The record demonstrates that Plaintiff continued to play guitar using his right hand
and perform as a musician. Further, he was able to prepare meals, wash dishes, do laundry,
repair music equipment, use the computer, and shop. (Tr. 361-68) An ability to engage in a
number of daily activities detracts from Plaintiffs credibility. See, e.g., Gojfv. Barnhart, 421
F.3d 785, 792 (8th Cir. 2005) (stating that plaintiff was able to vacuum wash dishes, do laundry,
cook, shop, drive, and walk were inconsistent with her subjective complaints and diminished her
credibility); Roberson v. Astrue, 481F.3d1020, 1025 (8th Cir. 2007) (affirming the ALJ's
credibility analysis where the plaintiff took care of her child, drove, fixed simple meals,

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performed housework, shopped, and handled money); Slack v. Astrue, No. 4:07CV1655 RWS ,
2009 WL 723832, at* 14 (E.D. Mo. March 17, 2009) (finding plaintiffs ability to hunt for small
game, prepare meals, and do some yard work was inconsistent with allegations that he needed to
spend most of the day resting) .
Further, as stated above, the ALJ properly considered the medical evidence in
determining Plaintiff's RFC. The totality of the medical evidence in the record does not support
Plaintiff's allegations that he is limited in his ability to use his right hand due to his prior wrist
fracture. The treatment records do not reflect complaints of pain or limitation in Plaintiff's right
wrist, other than complaints directly after the accident. Instead, his complaints pertained to those
impairments addressed by the ALJ, including congestive heart failure, diabetes, obesity,
hypertension, and sleep apnea. (Tr. 25) The ALJ correctly found that no credible, medicallyestablished evidence existed demonstrating any nonexertional limitations such as fingering,
handling, reaching, or basic balancing. (Tr. 25) See McGeorge v. Barnhart, 321 F.3d 766, 768
(8th Cir. 2003) (affirming the ALJ's RFC finding where the record showed plaintiff rarely sought
treatment for the alleged impairment, none of the doctors found her condition disabling, physical
exams were normal, and plaintiff could perform many activities associated with daily life). In
addition, the ALJ was only required to include in the RFC determination those impairments and
limitations the he found credible based upon the entire record. Id. at 769. The undersigned thus
finds that substantial evidence supports the RFC determination to perform the physical exertional
and nonexertional requirements of work except for lifting or carrying more than 10 pounds
frequently and 20 pounds occasionally, with a limitation to doing no more than occasional
climbing, stooping, kneeling, crouching, crawling, or bending. Therefore, the Court affirms the
final decision of the Commissioner.

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Accordingly,
IT IS HEREBY ORDERED that the final decision of the Commissioner denying social
security benefits is AFFIRMED. An appropriate Judgment shall accompany this Memorandum
and Order.
Dated

this/6+~"day of March, 2015.

~~~

RONNIEL:WHITE
UNITED STATES DISTRICT JUDGE

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