Buerck v. Colvin

Filing 19

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and Brief in Support of Complaint (Docs. 1, 15) is DENIED; IT IS ORDERED that a separate judgment be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 5/13/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHTHERN DIVISION
SHARI BUERCK,

)
)
Plaintiff,
)
)
V.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,)
)
Defendant.
)

Case No. 1:14CV32NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner denying the application of Shari Buerck
(Plaintiff) for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act (the Act), 42 U.S.C. §§ 401 et seq. Plaintiff has filed a brief in
support of the Complaint. (Doc. 15). Defendant has filed a brief in support of the
Answer.

(Doc. 18).

The parties have consented to the jurisdiction of the

undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c).
(Doc. 14).
I.
PROCEDURAL HISTORY
On April 7, 2011, Plaintiff filed her application for DIB, alleging a disability
onset date of October 26, 2010. (Tr. 144-52). Plaintiff’s application was denied,

and she requested a hearing before an Administrative Law Judge (ALJ). (Tr. 8891). After a hearing, by decision, dated February 6, 2013, the ALJ found Plaintiff
not disabled. (Tr. 9-22). On January 24, 2014, the Appeals Council denied
Plaintiff’s request for review. (Tr. 1-4). As such, the ALJ’s decision stands as the
final decision of the Commissioner.
II.
LEGAL STANDARDS
Under the Social Security Act, the Commissioner has established a five-step
process for determining whether a person is disabled. 20 C.F.R. §§ 416.920,
404.1529. “‘If a claimant fails to meet the criteria at any step in the evaluation of
disability, the process ends and the claimant is determined to be not disabled.’”
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for
disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant
must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social
Security Act defines “severe impairment” as “any impairment or combination of
impairments which significantly limits [claimant’s] physical or mental ability to do
basic work activities.” Id. “The sequential evaluation process may be terminated
at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page
2

v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari,
250 F.3d 603, 605 (8th Cir. 2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31
(8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the Regulations. 20 C.F.R.
§§ 416.920(d), 404.1520(d); pt. 404, subpt. P, app. 1. If the claimant has one of, or
the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant’s age, education, or work history. See id.
Fourth, the impairment must prevent the claimant from doing past relevant
work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at
this fourth step to establish his or her Residual Functional Capacity (RFC). See
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this
analysis, the claimant has the burden of showing that she is disabled.”);
Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ
will review a claimant’s RFC and the physical and mental demands of the work the
claimant has done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other
work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential
analysis, the Commissioner has the burden of production to show evidence of other

3

jobs in the national economy that can be performed by a person with the claimant’s
RFC. See Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at 1069 n.5. If the
claimant meets these standards, the ALJ will find the claimant to be disabled.
“The ultimate burden of persuasion to prove disability, however, remains with the
claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004)
(citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of production
shifts to the Commissioner at step five.”); Charles v. Barnhart, 375 F.3d 777, 782
n.5 (8th Cir. 2004) (“[T]he burden of production shifts to the Commissioner at step
five to submit evidence of other work in the national economy that [the claimant]
could perform, given her RFC.”).

Even if a court finds that there is a

preponderance of the evidence against the ALJ’s decision, the decision must be
affirmed if it is supported by substantial evidence. See Clark v. Heckler, 733 F.2d
65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th
Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland v.
Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals
held:

4

The concept of substantial evidence is something less than the weight
of the evidence and it allows for the possibility of drawing two
inconsistent conclusions, thus it embodies a zone of choice within
which the Secretary may decide to grant or deny benefits without
being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not
reverse merely because substantial evidence exists for the opposite decision.”)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (“[R]eview of the Commissioner’s
final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the
factual record de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993);
Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Instead, the district court
must simply determine whether the quantity and quality of evidence is enough so
that a reasonable mind might find it adequate to support the ALJ’s conclusion. See
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ,
who is the fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
See also Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an
ALJ’s decision is conclusive upon a reviewing court if it is supported by
“substantial evidence”). Thus, an administrative decision which is supported by

5

substantial evidence is not subject to reversal merely because substantial evidence
may also support an opposite conclusion or because the reviewing court would
have decided differently.

See Krogmeier, 294 F.3d at 1022.

See also

Eichelberger, 390 F.3d at 589; Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.
2000) (quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998)); Hutsell v.
Massanari, 259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by
substantial evidence, the court is required to review the administrative record as a
whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980); Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).

6

Additionally, an ALJ’s decision must comply “with the relevant legal
requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
The Social Security Act defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the claimant has the burden of
proving that the disability results from a medically determinable physical or mental
impairment, direct medical evidence of the cause and effect relationship between
the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When
evaluating evidence of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant’s pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992);
Polaski, 739 F.2d at 1322.

7

The absence of objective medical evidence is just one factor to be
considered in evaluating the plaintiff’s credibility. See id. The ALJ must also
consider the plaintiff’s prior work record, observations by third parties and treating
and examining doctors, as well as the plaintiff’s appearance and demeanor at the
hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at 1186.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him to reject the plaintiff’s complaints.
See Guilliams, 393 F.3d at 801; Masterson, 363 F.3d at 738; Lewis v. Barnhart,
353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater, 62 F.3d 220, 223 (8th Cir.
1995). It is not enough that the record contains inconsistencies; the ALJ must
specifically demonstrate that he considered all of the evidence.

Robinson v.

Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000)). The ALJ need only acknowledge and consider those factors. See
id. Although credibility determinations are primarily for the ALJ and not the court,
the ALJ’s credibility assessment must be based on substantial evidence.

See

Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780
F.2d 1371, 1374 (8th Cir. 1985).

8

RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a)(1), and includes an assessment of physical abilities and
mental impairments. 20 C.F.R. § 404.1545(b)-(e). The Commissioner must show
that a claimant who cannot perform his or her past relevant work can perform other
work which exists in the national economy. See Karlix v. Barnhart, 457 F.3d 742,
746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy v. Schweiker, 683
F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first prove
that the claimant retains the RFC to perform other kinds of work. See Goff, 421
F.3d at 790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by
substantial evidence. Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
Second, once the plaintiff’s capabilities are established, the Commissioner has the
burden of demonstrating that there are jobs available in the national economy that
can realistically be performed by someone with the plaintiff’s qualifications and
capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert
(VE) may be used. An ALJ posing a hypothetical to a VE is not required to
include all of a plaintiff’s limitations, but only those which he finds credible. See
Goff, 421 F.3d at 794 (“[T]he ALJ properly included only those limitations
supported by the record as a whole in the hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is appropriate if the ALJ discredits the

9

plaintiff’s subjective complaints of pain for legally sufficient reasons. See Baker
v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v. Sullivan, 902 F.2d
1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989).
III.
DISCUSSION
The issue before the court is whether substantial evidence supports the
Commissioner’s final determination that Plaintiff was not disabled. See Onstead,
962 F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the court must affirm her decision
as long as there is substantial evidence in favor of the Commissioner’s position.
See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff, who was turning forty-nine two days after the hearing, testified that
she was five feet seven inches tall and weighed 200 pounds; that she had a
cosmetology license; that she last worked on April 7, 2011, at which time she was
laid off; that she initially filed for unemployment compensation but withdrew the
application because she was filing for disability; that, after she was laid off, she did
not try to find work because of back and leg pain; and that the most serious
conditions she had which affected her ability to work were panic attacks and back
pain. Plaintiff also testified that she had difficulty sitting, standing, or walking for
very long due to constant pain; that she could not lift a gallon of milk without pain;
that she frequently fell down; that she rarely performed household chores; and that
10

she spent most of her days lying on the couch trying to alleviate her pain. (Tr. 3345, 50-51).
The ALJ found that Plaintiff met the insured status requirements through
March 30, 2016; that she had not engaged in substantial gainful activity since her
alleged onset date, October 26, 2010; that Plaintiff had the severe impairments of
obesity, hypertension, degenerative disc disease of the lumbar spine status post
fusion of L3-4, depression, and anxiety; and that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the
severity of a listed impairment. The ALJ found that Plaintiff had the RFC to
perform light work 1 except for the following limitations: Plaintiff could not climb
ladders, ropes, or scaffolds; she could occasionally balance, stoop, kneel, crouch,
crawl, and climb ramps and stairs; she should avoid moderate exposure to extreme
cold; she should avoid all exposure to excessive vibrations, to unprotected heights,
and to the use of hazardous machinery, excluding motor vehicles; and she was
limited to performing simple unskilled work with only occasional interaction with
co-workers and the general public. The ALJ further found that Plaintiff was
The Regulations define light work as >involv[ing] lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects up to 10 pounds.@ 20 C.F.R. §
404.1567(b). Additionally, A[s]ince frequent lifting or carrying requires being on
one=s feet up to two-thirds of a workday, the full range of light work requires
standing or walking, off and on, for a total of approximately 6 hours of an 8-hour
workday.@ Social Security Regulation (SSR) 83-10, 1983 WL 31251, at *6 (Dec.
12, 1983).

1

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unable to perform her past relevant work and, considering Plaintiff’s age, work
experience, and RFC, that there were jobs, which existed in significant numbers in
the national economy, that Plaintiff could perform. As such, the ALJ found that
Plaintiff was not disabled.
Plaintiff contends that the ALJ’s decision is not supported by substantial
evidence because the ALJ gave improper weight to the opinion of Stanley Hutson,
Ph.D., the State agency review doctor, who found Plaintiff’s impairments were not
severe; because the ALJ indicated he gave significant weight to the opinion of
Plaintiff’s surgeon, Paul Santiago, M.D., although the ALJ actually did not afford
any weight to Dr. Santiago’s opinion; because the ALJ gave insufficient weight to
the opinion of Dr. Jay Liss, Plaintiff’s treating psychiatrist; and because the ALJ
gave little weight to the opinion of Kathy Arnzen, F.N.P, who opined that Plaintiff
was unable to engage in substantial gainful activity. (Doc. 15). For the following
reasons, the court finds that Plaintiff’s arguments are without merit and that the
ALJ’s decision is supported by substantial evidence.

A.

Plaintiff’s Credibility:
The court will first consider the ALJ=s credibility determination, as the ALJ=s

evaluation of Plaintiff=s credibility was essential to the ALJ=s determination of
other issues. See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (A[The

12

plaintiff] fails to recognize that the ALJ's determination regarding her RFC was
influenced by his determination that her allegations were not credible.@) (citing
Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)); 20 C.F.R. §§ 404.1545,
416.945 (2010). As set forth more fully above, the ALJ=s credibility findings
should be affirmed if they are supported by substantial evidence on the record as a
whole; a court cannot substitute its judgment for that of the ALJ. See Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Hutsell, 892 F.2d at 750; Benskin,
830 F.2d at 882.
To the extent that the ALJ did not specifically cite Polaski, other case law,
and/or Regulations relevant to a consideration of Plaintiff=s credibility, this is not
necessarily a basis to set aside an ALJ=s decision where the decision is supported
by substantial evidence. Randolph v. Barnhart, 386 F.3d 835, 842 (8th Cir. 2004);
Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 2000); Reynolds v. Chater, 82
F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir.
1995). Additionally, an ALJ need not methodically discuss each Polaski factor if
the factors are acknowledged and examined prior to making a credibility
determination; where adequately explained and supported, credibility findings are
for the ALJ to make. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). See
also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (AThe ALJ is not
required to discuss each Polaski factor as long as the analytical framework is
13

recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v. Chater, 87
F.3d 963, 966 (8th Cir. 1996).
In any case, A[t]he credibility of a claimant=s subjective testimony is
primarily for the ALJ to decide, not the courts.@ Pearsall v. Massanari, 274 F.3d
1211, 1218 (8th Cir. 2001).

AIf an ALJ explicitly discredits the claimant=s

testimony and gives good reason for doing so, [a court] will normally defer to the
ALJ=s credibility determination.@ Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.
2003). See also Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010); Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following reasons, the court
finds that the reasons offered by the ALJ in support of his credibility determination
are based on substantial evidence.
First, the ALJ considered Plaintiff’s daily activities, and stated that, “despite
the alleged severity of her impairments,” Plaintiff had engaged “in a somewhat
normal level” of daily activity and interaction. Specifically, the ALJ considered
that Plaintiff stated, in a Function Report, that she was able to iron her clothing, do
her hair and make-up, drive, help care for the family pets, cook, do laundry,
complete household cleaning, including dusting, scrubbing, and vacuuming, go out
alone, go shopping, manage her own finances, go to the movies, and socialize with
family.

14

The court also notes that Plaintiff stated, in her Function Report that, when
her husband was “off the road,” she “fixe[d] a full meal”; that she shopped for
groceries and medications; that she shopped once a week for about one to one and
a half hours; that she read on a daily basis; that she tried to play with her grandson,
on the floor; and that she fed her family’s two inside dogs and cat. Plaintiff also
said her family told her that she needed to “get out more.” The ALJ concluded that
Plaintiff’s ability to participate in “such activities undermined the credibility of
[her] allegations of disabling functional limitations.” (Tr. 16, 199-206).
While the undersigned appreciates that a claimant need not be bedridden
before she can be determined to be disabled, Plaintiff's daily activities can
nonetheless be seen as inconsistent with her subjective complaints of a disabling
impairment and may be considered in judging the credibility of complaints. See
Eichelberger, 390 F.3d at 590 (ALJ properly considered that plaintiff watched
television, read, drove, and attended church upon concluding that subjective
complaints of pain were not credible); Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th
Cir. 2001); Onstead, 962 F.2d at 805; Murphy v. Sullivan, 953 F.2d 383, 386 (8th
Cir. 1992); Benskin, 830 F.2d at 883; Bolton v. Bowen, 814 F.2d 536, 538 (8th
Cir. 1987). Indeed, the Eighth Circuit holds that allegations of disabling Apain may
be discredited by evidence of daily activities inconsistent with such allegations.@
Davis v. Apfel, 239 F.3d 962, 967 (8th Cir. 2001). AInconsistencies between [a

15

claimant=s] subjective complaints and her activities diminish her credibility.@ Goff,
421 F.3d at 792. See also Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001);
Nguyen v. Chater, 75 F.3d 429, 439-41 (8th Cir. 1996) (holding that a claimant=s
daily activities, including visiting neighbors, cooking, doing laundry, and attending
church, were incompatible with disabling pain and affirming denial of benefits at
the second step of analysis).
Second, the ALJ considered that Plaintiff admitted that, after her alleged
onset date, she worked as a medical assistant for nine and a half to ten hours a day.
(Tr. 16). The court notes that, in her Function Report, which Plaintiff completed
on April 13, 2011, Plaintiff stated that she was a medical assistant; that she would
arrive at work at 7:45 a.m., which was a twenty minute drive from her home; and
that, after arriving at work, she worked as a medical assistant for the next nine and
a half to ten hours. (Tr. 199). Also, Plaintiff testified that she worked part-time as
a medical assistant because her employer did not have any more hours to give her.
(Tr. 51). Work performed during any period in which a plaintiff alleges that she
was under a disability may demonstrate an ability to perform substantial gainful
activity. See 20 C.F.R. §§ 404.1571, 416.971 (2010) (AEven if the work you have
done was not substantial gainful activity, it may show that you are able to do more
work than you actually did.@). The ALJ may consider a plaintiff=s work activity
during a period of time in which she alleges disability as a significant factor in

16

finding a plaintiff not credible. See Tindell v. Barnhart, 444 F.3d 1002, 1006 (8th
Cir. 2006) (among other factors, claimant worked 10 hours per week in a catering
business); Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004) (AIt was also not
unreasonable for the ALJ to note that Harris's . . . part-time work [was] inconsistent
with her claim of disabling pain.@).
Third, the ALJ considered that Plaintiff testified that she stopped working
due to a business-related layoff, rather than because of her allegedly disabling
impairments. (Tr. 16, 36, 312). Leaving work for reasons unrelated to an alleged
disabling impairment weighs against a finding of disability. Medihaug v. Astrue,
578 F.3d 805, 816-17 (8th Cir. 2009); Browning v. Sullivan, 958 F.2d 817, 821
(8th Cir. 1992). The ALJ further considered that there was no evidence of a
significant deterioration in Plaintiff’s medical condition since her lay off, and
stated that that there was a reasonable inference that Plaintiff’s “impairment would
not prevent the performance of [her last] job, since it was being performed
adequately at the time of the layoff despite a similar medical condition.” (Tr. 16).
See Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008) (“Thus, despite
suffering from what she calls ‘extreme fatigue,’ Van Vickle continued working for
over four years.”).
Fourth, the ALJ considered that Plaintiff’s treating physician’s noted that
Plaintiff was inconsistent in reporting the success of her back surgery and was

17

suspected of incorrectly reporting blood pressure results and consistency with her
treatment plan. (Tr. 16). In this regard, the record reflects that, in October 2010,
Dr. Santiago performed back surgery on Plaintiff. At a follow-up appointment, on
December 7, 2010, Plaintiff “reported that she [was] doing quite well”; that she
continued to have “some pain, mostly incisional”; and that her “preoperative pain
ha[d] improved dramatically.” (Tr. 261). On February 22, 2011, Plaintiff again
reported to Dr. Santiago that she was “doing quite well”; that she had a recent
flare-up after a fall down a few steps; that she was “better than before surgery”;
that she was “quite happy with her outcome”; and that she was no longer taking
pain medication. (Tr. 260).
However, on June 30, 2011, Sarah A. Aydt, M.D., Plaintiff’s primary care
physician, reported that, although Dr. Santiago had reported that Plaintiff was
“happy with the outcome of her back surgery,” Plaintiff had recently told Dr. Aydt
that “her pain was no better than it was before surgery.” Dr. Aydt noted that she
and Dr. Santiago were “getting discordant views with [their] interviews.” (Tr.
365). On August 17, 2012, when Plaintiff presented for a routine re-evaluation,
Dr. Aydt reported that Plaintiff’s blood pressure at home was “quite variable”;
Plaintiff’s diastolics were “supposedly above 100 many times”; but Dr. Aydt was
“not sure [she] [could] buy this.” (Tr. 405). See Travis v. Astrue, 477 F.3d 1037,
1042 (8th Cir. 2007) (“An ALJ may not disregard subjective complaints merely

18

because there is no evidence to support the complaints, but may disbelieve
subjective reports because of inherent inconsistencies or other circumstances.”)
(internal quotation and citation omitted).
Fifth, in regard to Plaintiff’s physical impairments, the ALJ considered that,
after Plaintiff’s disc surgery, on October 27, 2010, she was limited to “conservative
means of occupational therapy, home exercise, pain medication, activity
modification, and follow-up care.”

(Tr. 17).

As for Plaintiff’s mental

impairments, the ALJ noted that Plaintiff had only conservative treatment,
consisting of medication review and some counseling. (Tr. 18, 312-23, 324-29,
351-89, 410-15). Further, the record does not reflect that Plaintiff was hospitalized
for psychiatric treatment. Moreover, on December 11, 2012, it was reported that
Plaintiff had not been in counseling for about four years. (Tr. 410). See Roberts v.
Apfel, 222 F.3d 466, 469 (8th Cir. 2000) (a lack of regular treatment for an alleged
disabling condition detracts from a claimant=s credibility); Comstock v. Chater, 91
F.3d 1143, 1147 (8th Cir. 1996) (lack of objective medical evidence contradicts a
claimants allegations of disabling pain).
Sixth, the ALJ considered Plaintiff’s medical records relevant to both her
physical and mental impairments, and found that Plaintiff’s credibility regarding
the severity of her impairments was “diminished because those allegations [were]
greater than [could be] expected in light of the objective evidence of record.” (Tr.

19

16-20). While an ALJ may not disregard subjective pain allegations solely because
they are not fully supported by objective medical evidence, an ALJ is entitled to
make factual determination that a claimant=s subjective pain complaints are not
credible in light of objective medical evidence. See Ramirez v. Barnhart, 292 F.3d
576 (8th Cir. 2002) (citing 20 C.F.R. §§ 416.908, 416.929).
The objective medical evidence in Plaintiff’s case reflects that, before
Plaintiff had disc surgery, in October 2010, Dr. Santiago reported that Plaintiff had
5/5 strength throughout with normal muscular bulk and tone; her sensation was
intact to light touch; her deep tendon reflexes were “2+ throughout”; Plaintiff’s
gait was narrow based and stable; she was able to heel and toe walk without
difficulty; she had normal range of motion (ROM) on flexion, extension, and
rotation of her neck; and her straight leg raise was negative. It was noted on this
date that Plaintiff “asked to be scheduled for surgery.” (Tr. 265). After Plaintiff’s
October 27, 2010 disc surgery, Dr. Santiago reported, on December 7, 2010, that
Plaintiff’s wound was “well healed without evidence of infection”; that her
strength was 5/5 in her lower extremities; that her gait was narrow based and
stable; that imaging studies revealed evidence of stable implants and alignment,
although there had been “some subsidence of [Plaintiff’s] interbody device”; and
that Dr. Santiago was happy with Plaintiff’s progress. (Tr. 261).

20

Further, on February 22, 2011, Dr. Santiago reported that, on examination,
Plaintiff’s gait was narrow based and stable, her strength was 5/5 in her lower
extremities, x-rays showed “stable implants and alignment,” and there was an
“evolving intertransverse fusion mass.” (Tr. 260). A May 24, 2011 radiography
exam showed interbody fusion, with “no motion of the fused segments in either
flexion or extension.”

(Tr. 425).

Additionally, in August 2011, Plaintiff’s

extremities were without clubbing, cyanosis, or edema; her joints were
unremarkable; and her “bimanual exam [was] unremarkable.” (Tr. 363).
Moreover, on February 23, 2012, Plaintiff had “good” ROM of the hands,
wrists, elbows, shoulders, spine, hips, knees, and ankles, no hand, back, or leg
pain, and no tenderness, clubbing, cyanosis or significant edema. (Tr. 430). On
March 1, 2012, Plaintiff had no edema in her extremities, hands or feet, and her
joints were “grossly unremarkable.” (Tr. 356). On June 22, 2012, Plaintiff had no
“musculo-skeletal” deformities or enlarged joints, and no clubbing, cyanosis, or
significant edema. (Tr. 432). Medical records, dated January 1, 2013, reflect that
Plaintiff said she had pain on a daily basis and that it radiated into her legs.
Records of this date further state that, on examination, Plaintiff did not appear to
be in acute distress; Plaintiff had tightness in the paraspinal muscles in the lumbar
spine; she had decreased ROM; and her straight leg raise was positive at thirty
degrees. (Tr. 427-28).

21

In regard to Plaintiff’s mental impairments, the ALJ considered that the
majority of Plaintiff’s mental status examinations did not support her claim of
disabling impairments. (Tr. 18). Indeed, on February 15, 2011, Dr. Liss reported
that Plaintiff was “doing well; that her mood was good; that she was having “more
panic attack[s],” which were waking her up at night; and that, sometimes, she had
to take extra Xanax. (Tr. 325). On June 9, 2011, Dr. Liss reported that Plaintiff
was doing well, her panic attacks were better, her mood was stable, and her
medications were working well. (Tr. 414). On February 23, June 22, and October
29, 2012, and January 10, 2013, Plaintiff was oriented and had appropriate mood
and affect. (Tr. 428, 430, 432, 434).
Seventh, Dr. Santiago reported, in October 2011, that he was allowing
Plaintiff to return to work full time, with no restrictions other than his advising
Plaintiff to avoid excessive heavy lifting as well as repetitive bending and twisting.
(Tr. 260). See Eichelberger, 390 F.3d at 590 (ALJ could find claimant not credible
based in part on fact that no physician imposed any work related restrictions);
Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000) (AWe find it significant that
no physician who examined Young submitted a medical conclusion that she is
disabled and unable to perform any type of work.@).
Eighth, the ALJ considered that medication helped Plaintiff’s conditions.
(Tr. 18). See Schultz v. Astrue, 578 F.3d 838, 946 (8th Cir. 2007) (conditions

22

which can be controlled with medication are not disabling). In regard to Plaintiff’s
mental impairments, on August 16, 2010, Dr. Aydt reported that Plaintiff’s
psychiatrist was prescribing Xanax and Adderall, and that Plaintiff was “doing
well with such”; and that Plaintiff’s marital discord was better and her relationship
with her mother and sisters had improved.

(Tr. 315).

Dr. Liss, Plaintiff’s

psychiatrist, reported on October 23, 2010, that Plaintiff’s medications were
“working well” and that she “need[ed] no changes.” (Tr. 326). As stated above,
Plaintiff reported, in February 2011, that she took extra Xanax when she had
increased panic attacks. (Tr. 325). On April 12, 2011, when Plaintiff said she did
not think Cymbalta was working, Dr. Liss changed her medication. (Tr. 324).
Subsequently, as stated above, on June 9, 2011, Dr. Liss reported that Plaintiff was
“doing well” and her panic attacks were “better,” her mood was “stable,” and her
medication was “working well” and did not need to be changed. (Tr. 414). On
November 8, 2011, and April 19, 2012, Dr. Liss reported that Plaintiff’s
medications were “working well” and did not need to be changed, although, on
November 8, 2011, Plaintiff reported that her mood was “up & down,” and, on
April 19, 2012, she reported that her medications made her gain weight which
made her more depressed. (Tr. 412-13). On December 11, 2012, when Plaintiff
reported that she was “still depressed” and was continuing to have panic attacks,
Dr. Liss increased the dosage of Plaintiff’s medication. (Tr. 410). Also, the ALJ

23

noted that the record reflects that Plaintiff’s blood pressure was “amenable to
control with adherence to her treatment regimen.” (Tr. 18, 287-89).
Ninth, the ALJ considered that Plaintiff was not always compliant. (Tr. 18).
In this regard, Dr. Aydt reported, on September 6, 2012, that Plaintiff had not
shown up for her blood pressure assessment. (Tr. 404). It was also noted, on
September 10, 2012, that Plaintiff had not received a “flu UA,” although she had
been told to do so. (Tr. 404). See Eichelberger, 390 F.3d at 589 (holding that the
ALJ properly considered that the plaintiff cancelled several physical therapy
appointments and that no physician imposed any work-related restrictions on her)
(citing Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996) (claimant=s failure to
comply with prescribed medical treatment and lack of significant medical
restrictions is inconsistent with complaints of disabling pain). See also Wildman v.
Astrue, 596 F.3d 959, 968-69 (8th Cir. 2010) (it is permissible for ALJ to consider
claimant’s non-compliance with prescribed medical treatment).
In conclusion, the court finds that the ALJ’s consideration of Plaintiff’s
credibility is based on substantial evidence and that it is consistent with the case
law and Regulations.
B.

Opinion of Dr. Santiago:
The court has set forth above, in regard to Plaintiff’s credibility, Dr.

Santiago’s findings. In particular, the court has noted that Dr. Santiago, who was

24

Plaintiff’s surgeon, opined, approximately four months after her October 2010 disc
surgery, that Plaintiff could return to work full time, with the exception that she
avoid heavy lifting and repetitive bending and twisting. (Tr. 260). The ALJ stated
that, when determining Plaintiff’s RFC, he gave significant weight to Dr.
Santiago’s opinion that Plaintiff needed to avoid heavy lifting and repetitive
twisting and bending, although the ALJ noted that he was giving greater weight to
the more restrictive opinion of the State agency review physician, because the
latter doctor’s opinion was better supported by the record as a whole, including
Plaintiff’s partially credible subjective complaints. (Tr. 19). Plaintiff argues both
that the ALJ gave too much weight to Dr. Santiago’s opinion and that the ALJ did
not give any weight to Dr. Santiago’s opinion. For the following reasons, the court
finds that the ALJ gave proper weight to Dr. Santiago’s opinion, and that the ALJ’s
opinion, in this regard, is based on substantial evidence.
First, upon determining the weight to be given Dr. Santiago’s opinion, the
ALJ was fulfilling his obligation to consider all the medical opinions of record and
resolve the conflicts among the opinions. Indeed, “it is the ALJ's function to
resolve conflicts among 'the various treating and examining physicians.=@ See
Hudson v. Barnhart, 345 F.3d 661, 667 (8th Cir. 2003) (citing Bentley v. Shalala,
52 F.3d 784, 785 (8th Cir. 1995); Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir.

25

2000) (discussing an ALJ's role in resolving conflicts among medical opinions); 20
C.F.R. § 416.927(d) (2003) (outlining how medical opinions are to be weighed).
Second, the issue for this court is whether the record as a whole supports the
ALJ’s determination. See Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008);
Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999) (AWe have consistently held
that a deficiency in opinion-writing is not a sufficient reason for setting aside an
administrative finding where the deficiency had no practical effect on the outcome
of the case.@).
Third, when determining the weight to be given Dr. Santiago’s opinion, the
ALJ considered the objective medical evidence supporting Dr. Santiago’s opinion.
As discussed above in regard to Plaintiff’s credibility, the ALJ considered that Dr.
Santiago reported that, even before Plaintiff’s October 2010 surgery, her strength
was normal, her gait was stable, and she had normal ROM of flexion, extension,
and neck rotation, and that, after surgery, Dr. Santiago reported that Plaintiff said
she was doing well and that she had stable gait and normal strength in her lower
extremities. The ALJ also considered that Dr. Santiago reported that post-surgical
x-rays showed stable implants and alignment. The opinions of treating doctors are
given controlling weight only where they are supported by medically acceptable
techniques and where they are not inconsistent with other substantial evidence.

26

See Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009) (quoting 20 C.F.R. §
404.1527(d)(2) (2000)).
Fourth, to the extent the ALJ did not credit Dr. Santiago’s opinion in its
entirety, a treating physician’s opinion “does not automatically control or obviate
the need to evaluate the record as a whole.@ Hogan v. Apfel, 239 F.3d 958, 961
(8th Cir. 2001). Moreover, an “ALJ is not required to rely entirely on a particular
physician’s opinion or choose between the opinions of any of the claimant’s
physician’s.” Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011).
Fifth, to the extent Plaintiff argues the ALJ did not give any weight to Dr.
Santiago’s opinion, the record reflects that the ALJ did, in fact, give some weight
to Dr. Santiago’s opinion, as he limited Plaintiff to only occasional bending and
stooping. See Choate v. Barnhart, 457 F.3d 865, 869-70 (8th Cir. 2006) (holding
that the limitations imposed by the ALJ as reflected in the claimant=s RFC
demonstrating that the ALJ gave some credit to the opinions of the treating
physicians).
Sixth, as discussed above, the ALJ considered that Dr. Santiago reported that
Plaintiff felt she felt better after surgery, that she was happy with the outcome, and
that she was doing well. The ALJ also considered that Dr. Santiago’s reports, in
this regard, were consistent with Dr. Aydt’s records. In conclusion, the court finds
that the ALJ gave proper weight to Dr. Santiago’s opinion upon determining the

27

severity of Plaintiff’s impairments and her RFC, and that the ALJ’s decision, in
this regard, is based on substantial evidence.
C.

The Opinion of Dr. Liss:
In a Mental RFC Questionnaire, Dr. Liss reported that Plaintiff was unable

to meet competitive standards in regard to all abilities listed on the Questionnaire,
including the ability to remember work-like procedures, understand and remember
very short and simple instructions, carry out very short and simple instructions,
maintain attention for a two-hour segment, maintain regular attendance and be
punctual, sustain an ordinary routine without special instructions, make simple
work-related decisions, ask simple questions, accept instructions, get along with
co-workers, deal with normal work stress, and be aware of normal hazards and take
appropriate precautions. Dr. Liss also opined that Plaintiff could not interact
appropriately with the general public, maintain socially appropriate behavior,
adhere to basic standards of neatness and cleanliness, travel to unfamiliar places, or
use public transportation. Dr. Liss further opined that Plaintiff would be absent
more than four times a month due to her impairments, and that these limitations
existed since 1990. Dr. Liss also found that Plaintiff had a Global Assessment of
Functioning (GAF)2 of 30.

(Tr. 343-45).

Plaintiff argues that the ALJ’s

Global assessment of functioning (GAF) is the clinician=s judgment of the
individual=s overall level of functioning, not including impairments due to physical
or environmental limitations. See Diagnostic and Statistical Manual of Mental
2

28

determination that little weight should be given to Dr. Liss’s opinion is not based
on substantial evidence. For the following reasons, the court finds that the ALJ
gave proper weight to Dr. Liss’s opinion.
First, a physician=s checkmarks on a form are conclusory opinions which can
be discounted if contradicted by other objective medical evidence. Stormo v.
Barnhart, 377 F.3d 801, 805-06 (8th Cir. 2004); Hogan, 239 F.3d at 961. See also
Johnson v. Astrue, 628 F.3d 991, 992 (8th Cir. 2011) (holding that checkmarks on
a Medical Source Statement are Aconclusory opinions@ which can be discounted if
contradicted by other objective medical evidence); Wildman v. Astrue, 596 F.3d
959, 964 (8th Cir. 2010) (A>The checklist format, generality, and incompleteness of
the assessments limit [the assessments'] evidentiary value.= . . . Indeed, >[a] treating
physician's opinion deserves no greater respect than any other physician's opinion
when [it] consists of nothing more than vague, conclusory statements.=@) (quoting
Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001) and Piepgras v.
Chater, 76 F.3d 233, 236 (8th Cir. 1996)).

Disorders, DSM-IV, 30-32 (4th ed. 1994). Expressed in terms of degree of
severity of symptoms or functional impairment, GAF scores of 31 to 40 represent
Asome impairment in reality testing or communication or major impairment in
several areas, such as work or school, family relations, judgment, thinking, or
mood,@ 41 to 50 represents Aserious,@ scores of 51 to 60 represent Amoderate,@
scores of 61 to 70 represent Amild,@ and scores of 90 or higher represent absent or
minimal symptoms of impairment. Id. at 32.
29

Second, the ALJ considered that the limitations imposed by Dr. Liss were
primarily based on Plaintiff’s subjective complaints.

(Tr. 20).

See Kirby v.

Astrue, 500 F.3d 704, 709 (8th Cir. 2007) (finding ALJ properly gave less weight
to opinion of doctors who base their opinion on a claimant’s subjective complaints
rather than on objective medical evidence).
Third, as discussed above in regard to Plaintiff’s credibility, and as
considered by the ALJ, Dr. Liss’s treatment notes are inconsistent with the
limitations he imposed in the Questionnaire. AIt is permissible for an ALJ to
discount an opinion of a treating physician that is inconsistent with the physician's
clinical treatment notes.@ Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009).
See also Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006) (holding that an ALJ
may give a treating doctor=s opinion limited weight if it is inconsistent with the
record).

An ALJ may Adiscount 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.@ Prosch v. Apfel, 201
F.3d 1010, 1013 (8th Cir. 2000). See also Travis v. Astrue, 477 F.3d 1037, 1041
(8th Cir. 2007) (AIf the doctor=s opinion is inconsistent with or contrary to the
medical evidence as a whole, the ALJ can accord it less weight.@).

30

Fourth, as stated above in regard to Plaintiff’s credibility, Plaintiff was never
hospitalized for psychiatric treatment; she did not receive any psychotherapy; and
she was stabilized when she was compliant with her medications.

Also, the

limitations imposed by Dr. Liss were inconsistent with Plaintiff’s daily activities as
discussed above.
Fifth, Dr. Liss’s conclusions were inconsistent with other treatment notes, as
discussed above, which reflect that Plaintiff was oriented and had appropriate
mood and affect. See Prosch, 201 F.3d at 1013; Travis, 477 F.3d at 1041.
Sixth, Plaintiff contends that the ALJ erred upon stating that, although Dr.
Liss stated on the Questionnaire that Plaintiff had a GAF of 30 and 40, there were
no documented GAF scores in any of Dr. Liss’s treatment notes.

(Tr. 20).

Plaintiff, moreover, does not reference any GAF scores in Plaintiff’s treatment
notes. (Doc. 15 at 12). In any case, an ALJ may afford greater weight to medical
evidence than to a GAF score. See Jones v. Astrue, 619 F.3d 963, 974 (8th Cir.
2010) (ALJ may afford greater weight to medical evidence and testimony than to
GAF scores); Grim v. Colvin, 2014 WL 859840, at *7-8 (E.D. Mo. Mar. 5, 2014)
(ALJ properly found claimant’s mental impairments were not serious despite the
presence of GAF scores that reflected moderate or serious symptoms).
Seventh, upon declining to give Dr. Liss’s opinion controlling weight, the
ALJ complied with the Regulations which require an ALJ to give “good reasons”

31

for discounting the opinion of a treating source’s medical opinion. Social Security
Ruling (SSR) 96-29, 1996 WL 374188, *5 (July 2, 1996) (clarifying that 20 C.F.R.
§§ 404.1527 and 416.927 require an ALJ to provide Agood reasons in the notice of
the determination or decision for the weight given to a treating source=s medical
opinion(s).@).

See also Martise v. Astrue, 641 F3d 909 (8th Cir. 2010).

In

conclusion, the court finds that the ALJ gave proper weight to Dr. Liss’s opinion
when determining the severity of Plaintiff’s impairments and her RFC.
D.

Opinion of Ms. Arnzen:
Ms. Arnzen, who is a nurse practitioner and Plaintiff’s friend and co-worker

(Tr. 64), opined in a Physical RFC Questionnaire, dated October 29, 2013, that
Plaintiff could sit only for 30 minutes at a time; she could stand for only 15
minutes at a time; after standing for 15 minutes, Plaintiff would have to lie down;
in an 8-hour work day, Plaintiff could sit, stand, and walk less than 2 hours;
Plaintiff frequently fell; she could never lift less than 10 pounds; Plaintiff could
never twist, crouch/squat, or climb ladders; she could rarely stoop or climb stairs;
she could never use her arms to reach overhead; and Plaintiff would be absent from
work more than 4 days a month. (Tr. 399-403). Ms. Arnzen also reported that
Plaintiff was capable of handling mental stress associated with work activity and
that she could handle moderate stress. (Tr. 400). The ALJ stated that he gave little
weight to Ms. Arnzen’s opinion. (Tr. 19). Plaintiff contends that the ALJ erred in

32

doing so and that the ALJ’s decision, in this regard, is not based on substantial
evidence. (Doc. 15 at 11). The court finds Plaintiff’s argument without merit for
the following reasons.
First, as stated by the ALJ, Ms. Arnzen is a family nurse practitioner, and, as
such, she is not an acceptable medical source.

See SSR 06-03p, 2006 WL

2329939, at *2 (Aug. 9, 2006) ("[O]nly 'acceptable medical sources' can give us
medical opinions."); 20 C.F.R. §§ 404.1513(a), 416.913(a) (excluding therapists
and nurse practitioners from the list of acceptable medical sources).
Second, as stated by the ALJ, Ms. Arnzen’s conclusions are inconsistent
with Plaintiff’s treatment records which frequently note that Plaintiff was oriented
and had appropriate mood and affect. Ms. Arnzen’s opinion was also inconsistent
with Dr. Liss’s treatment notes reflecting that Plaintiff was doing well. See Hacker
v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (holding that where a treating
physician=s notes are inconsistent with his or her RFC assessment, controlling
weight is not given to the RFC assessment); Reed v. Barnhart, 399 F.3d 917, 920
(8th Cir. 2005) (holding that a treating physician=s opinion is given controlling
weight Aif it is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence@).
Third, Ms. Arnzen’s checkmarks on the Mental RFC Questionnaire are not
controlling.

See Stormo, 377 F.3d at 805-06; Hogan, 239 F.3d at 961.

33

In

conclusion, the court finds that the ALJ gave proper weight to Ms. Arnzen’s
opinion and that the ALJ’s decision, in this regard, is based on substantial
evidence.
D.

Opinion of State Agency Psychologist Stanley Hutson, Ph.D.:
Dr. Hutson, a State agency consulting psychologist, stated, on a Psychiatric

Review Technique Form, dated May 11, 2011, that Plaintiff had mild restrictions
in activities of daily living, maintaining social functioning, and difficulties in
maintaining concentration, persistence or pace; and she had no limitations in
regard to repeated episodes of decompensation. Dr. Hutson further reported that
his observation, based on a telephone interview with Plaintiff, was that she was
cooperative and answered questions well; he noted no difficulties. Dr. Hutson
concluded that Plaintiff’s “mental disorders cause[d] mild limitations,” and that her
mental impairments were not severe. (Tr. 330-40).
The ALJ stated that he gave “only some weight” to Dr. Hutson’s opinion
because, at the time Dr. Hutson made his determination, he did not have all of
Plaintiff’s records. The ALJ further stated that, upon reviewing all of Plaintiff’s
records, he found that Plaintiff did have the severe medically determinable

34

impairments of depression and anxiety, but that the evidence of record did not
support a finding that these conditions were disabling. (Tr. 19-20). 3
As a State agency consultant Dr. Hutson is highly trained qualified expert in
Social Security disability evaluations.

See 20 C.F.R. §§ 404.1527(f)(2)(i),

416.927(f)(2)(i) (State agency medical consultants are highly qualified experts in
Social Security disability evaluation; therefore, ALJs must consider their findings
as opinion evidence).

The ALJ, therefore, correctly considered Dr. Hutson’s

opinion.
Further, as with other medical sources, the Regulations required the ALJ to
give good reasons for the weight given to Dr. Hutson’s opinion. 20 C.F.R. §§
404.1527(f)(2)(ii), 416.927(f)(2)(ii). The ALJ complied with this requirement, as
discussed above. Also, as discussed above, the ALJ considered that, at the time
Dr. Hutson rendered his opinion, he did not have the benefit of reviewing all of
Plaintiff’s medical records. The ALJ found, however, that the record did not
reflect that Plaintiff’s conditions were not more restrictive than those detailed by
Dr. Hutson. (Tr. 19). See Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001)
(AAlthough a treating physician=s opinion is entitled to great weight, it does not
automatically control or obviate the need to evaluate the record as a whole.@). The

It is not clear from Plaintiff’s brief whether she takes issue with the weight given
to Dr. Hutson’s opinion or the opinion of Dr. Simowitz, as discussed below. (Doc.
15 at 9-10). Nonetheless, the court will address the opinions of both doctors.
3

35

court finds, therefore, that the ALJ gave proper weight to Dr. Hutson’s opinion and
that the ALJ’s decision, in this regard, is based on substantial evidence.
E.

Opinion of Frederic Simowitz:
Dr. Frederic Simowitz completed a Physical RFC Assessment, dated May

13, 2011, after reviewing Plaintiff’s medical records as well as her function report.
Dr. Simowitz opined in the Physical RFC Assessment that Plaintiff could
occasionally lift 20 pounds, frequently lift 10 pounds, and stand and/or walk and sit
about 6 hours in an 8-hour workday; that her ability to push and/or pull was limited
in the lower extremities; that she could frequently balance, occasionally climb,
crouch, kneel, and stoop, and never climb ladders, ropes, or scaffolds; that she had
no manipulative, visual, or communicative limitations; and that she should avoid
even moderate exposure to extreme cold and all exposure to hazards, heights, and
vibration. (Tr. 72-78).
The ALJ stated that he gave great weight, although not controlling weight, to
Dr. Simowitz’s opinion that Plaintiff could perform a range of work at the light
exertional level. For the following reasons the court finds that the ALJ gave proper
weight to Dr. Simowitz’s opinion; and that the ALJ’s decision, in this regard, is
based on substantial evidence.
First, upon determining the weight given to Dr. Simowitz’s opinion, the ALJ
noted that Dr. Simowitz’s opinion was well supported by the objective medical

36

evidence. (Tr. 19). Cf. Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009) (AA
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 in [a claimant's] case record.=@).
See also 20 C.F.R. § 404.1527(d)(3) (providing that more weight will be given to
an opinion when a medical source presents relevant evidence, such as medical
signs, in support of his or her opinion).
Second, the court notes that Dr. Simowitz provided a lengthy narrative of
records supporting his opinion. Notably, in his RFC Assessment, Dr. Simowitz
considered that Dr. Santiago reported, post-surgery, that Plaintiff was doing well
and that she was happy with her progress. (Tr. 73-74).
Third, Dr. Simowitz considered Plaintiff’s self-reporting, in a Function
Report, that she prepared meals, did moderate house work, drove, and went out
alone.
Fourth, as discussed above in regard to Dr. Hutson, as a State agency
consultant Dr. Simowitz is highly trained qualified expert in Social Security
disability evaluations. See 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i).
Fifth, the ALJ noted that as a non-examining source, Dr. Simowitz’s opinion
should be afforded less weight than examining sources, but that upon determining

37

the weight to be given Dr. Simowitz’s opinion, the record should be considered as
a whole. (Tr. 18-19). See Hogan, 239 F.3d at 961.
Sixth, as required by the Regulations, the ALJ gave good reasons for the
weight given to Dr. Simowitz’s opinion.

20 C.F.R. §§ 404.1527(f)(2)(ii),

416.927(f)(2)(ii). In conclusion, the court finds that the ALJ gave proper weight to
all opinions of record, including Dr. Simowitz’s opinion, and that the ALJ’s
decision, in this regard, is based on substantial evidence.
E.

Plaintiff’s RFC:
The Regulations define RFC as Awhat [the claimant] can do@ despite her

Aphysical or mental limitations.@ 20 C.F.R. § 404.1545(a). AWhen determining
whether a claimant can engage in substantial employment, an ALJ must consider
the combination of the claimant=s mental and physical impairments.@ Lauer v.
Apfel, 245 F.3d 700, 703 (8th Cir. 2001). AThe ALJ must assess a claimant=s RFC
based on all relevant, credible evidence in the record, >including the medical
records, observations of treating physicians and others, and an individual=s own
description of his limitations.=@ Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.
2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). See also
Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013).
To determine a claimant=s RFC, the ALJ must move, analytically, from
ascertaining the true extent of the claimant=s impairments to determining the kind
38

of work the claimant can still do despite his or her impairments.

Although

assessing a claimant=s RFC is primarily the responsibility of the ALJ, a A>claimant's
residual functional capacity is a medical question.=@

Lauer, 245 F.3d at 704

(quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)). The Eighth Circuit
clarified, in Lauer, 245 F.3d at 704, that A>[s]ome medical evidence,= Dykes v.
Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (per curiam), must support the
determination of the claimant's RFC, and the ALJ should obtain medical evidence
that addresses the claimant=s >ability to function in the workplace,= Nevland v.
Apfel, 204 F.3d 853, 858 (8th Cir. 2000).@ Thus, an ALJ is Arequired to consider at
least some supporting evidence from a professional.@ Id. See also Vossen v.
Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (AThe ALJ bears the primary
responsibility for determining a claimant's RFC and because RFC is a medical
question, some medical evidence must support the determination of the claimant's
RFC.@).
As required by the Regulations and case law, the ALJ in the matter under
consideration identified Plaintiff’s functional limitations and restrictions, and then
assessed her work-related abilities on a function-by-function basis. See Harris v.
Barnhart, 356 F.3d 926, 929 (8th Cir. 2004). To the extent Plaintiff argues the ALJ
should have included limitations beyond those which he found credible, an RFC
need only include a plaintiff=s credible limitations. See Tindell v. Barnhart, 444
39

F.3d 1002, 1007 (8th Cir. 2006) (AThe ALJ included all of Tindell=s credible
limitations in his RFC assessment, and the ALJ=s conclusions are supported by
substantial evidence in the record.@). Only after reviewing the record as a whole,
including factors related to Plaintiff’s credibility and the medical opinions of
record, as discussed above, did the ALJ conclude that Plaintiff had the RFC to
perform light work, except for the following limitations: Plaintiff could not climb
ladders, ropes, or scaffolds; she could occasionally balance, stoop, kneel, crouch,
crawl, and climb ramps and stairs; she should avoid moderate exposure to extreme
cold; she should avoid all exposure to excessive vibrations, to unprotected heights,
and to the use of hazardous machinery, excluding motor vehicles; and she was
limited to performing simple unskilled work with only occasional interaction with
co-workers and the general public.

The court finds that the ALJ’s RFC

determination is based on substantial evidence and consistent with the Regulations
and case law.
Further, after obtaining the testimony of a VE (Tr. 66-70), the ALJ
concluded that there was work in the national economy which, given Plaintiff’s
RFC, age, education, and work experience, Plaintiff could perform, and that she
was, therefore, not disabled. See Martise v. Astrue, 641 F.3d 909, 927 (8th Cir.
2011) (ABased on our previous conclusion . . . that >the ALJ's findings of [the
claimant=s] RFC are supported by substantial evidence,= we hold that >[t]he
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hypothetical question was therefore proper, and the VE's answer constituted
substantial evidence supporting the Commissioner=s denial of benefits.=@) (quoting
Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)); Robson v. Astrue, 526
F.3d 389, 392 (8th Cir. 2008) (holding that a VE=s testimony is substantial
evidence when it is based on an accurately phrased hypothetical capturing the
concrete consequences of a claimant=s limitations). The court finally finds the
ALJ’s ultimate determination that Plaintiff was not disabled is based on substantial
evidence.
IV.
CONCLUSION
For the reasons set forth above, the court finds that substantial evidence on
the record as a whole supports the Commissioner’s decision that Plaintiff is not
disabled.
Accordingly,
IT IS HEREBY ORDERED that the relief sought by Plaintiff in her
Complaint and Brief in Support of Complaint (Docs. 1, 15) is DENIED;
IT IS ORDERED that a separate judgment be entered incorporating this
Memorandum and Order.
Dated this 13th day of May 2015.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

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