David v. Social Security Administration

Filing 21

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner be AFFIRMED. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge John M. Bodenhausen on 9/2/2015. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

DAVID L. EZELL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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No. 1:14 CV 39 JMB

MEMORANDUM AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This cause is on appeal from an adverse ruling of the Social Security Administration.
The suit involves Applications for Disability Insurance Benefits under Title II of the Social
Security Act and Supplemental Security Income under Title XVI of the Act. Plaintiff has filed a
Brief in Support of his Complaint, and the Commissioner has filed a Brief in Support of her
Answer. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. §
636(c).
I.

Procedural History
On July 19, 2011, Plaintiff David Lyle Ezell filed Applications for Supplemental Security

Income and Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr.
125-29, 130-35)1 Plaintiff states that his disability began on May 28, 2010,2 as a result of neck

1

"Tr." refers to the page of the administrative record filed by the Defendant with her Answer
(Docket No. 11/filed June 4, 2014).
2
Although Plaintiff originally alleged an onset date of May 31, 2008, he later amended his
onset date to May 28, 2010. (Tr. 9, 125-35, 144)

and back pain, anxiety, homicidal thoughts,3 and stiffness on the left side of his body. On initial
consideration, the Social Security Administration denied Plaintiff's claims for benefits. Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). On May 14, 2013, a hearing
was held before an ALJ. (Tr. 23-50) Plaintiff testified and was represented by counsel. (Id.)
Vocational Expert Bob Hammond also testified at the hearing. (Tr. 43-50, 116-18) Thereafter,
on June 4, 2013, the ALJ issued a decision denying Plaintiff’s claims for benefits. (Tr. 6-18) On
February 10, 2014, the Appeals Council found no basis for changing the ALJ’s decision and
denied Plaintiff’s request for review. (Tr. 1-4) The ALJ's determination thus stands as the final
decision of the Commissioner. 42 U.S.C. § 405(g).
II.

Evidence Before the ALJ
A.

Hearing on May 14, 2013
1.

Plaintiff's Testimony

At the hearing on May 14, 2013, Plaintiff testified in response to questions posed
by the ALJ and counsel. (Tr. 27-43) Plaintiff last worked on March 31, 2008, the date of his
automobile accident and his initial alleged disability onset date. (Tr. 30-31) Plaintiff’s parents
have supported him since that time. (Tr. 31) Plaintiff testified that he tries to help around the
house and in his father’s garden by planting potatoes, picking tomatoes, and watering. (Tr. 32)
Plaintiff occasionally drives but not far. (Tr. 35) Plaintiff occasionally does the dishes and
makes a few meals, but a healthcare provider usually prepares his meals. (Tr. 32-33) Plaintiff

3

Although Plaintiff alleged homicidal thoughts as a basis for his disability in his applications
for benefits, he submitted no medical evidence showing he received treatment for homicidal
thoughts. Likewise, Plaintiff did not testify at the hearing that his alleged homicidal thoughts
affect his ability to function. Plaintiff has not taken issue with the ALJ’s finding of his severe
impairments, disorders of the back and affective disorders.
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testified that he started receiving the services of a healthcare provider eight months after the
accident. (Id.)
Plaintiff testified that turning his neck causes him pain. (Tr. 34) Dr. Andrew Gayle is his
primary care doctor. (Tr. 33) Plaintiff has received numerous trigger-point injections as
treatment for his neck pain with some pain relief. (Tr. 37-38) Plaintiff testified that no doctor
has recommended any additional surgeries. (Tr. 38) In addition to his physical problems,
Plaintiff testified that Dr. Salazar treats his mental problems. (Tr. 34) Plaintiff testified that he
takes Valium and Celexa, and the medications help with his anger, but they cause him fatigue.
(Tr. 36) Plaintiff indicated that he experiences crying spells and problems concentrating. (Tr.
39, 41) Plaintiff testified that he had difficulty getting comfortable, and this causes him
problems sleeping at night. Plaintiff reported taking at least one to two naps a day, varying from
thirty minutes to one hour to two hours in duration. (Tr. 37)
Plaintiff testified that he could not perform sedentary work because he cannot sit for a
long period of time without having to lie down. (Id.) Plaintiff testified that he previously
worked as a sawmill worker and a self-contracted laborer. (Tr. 43)
2.

Testimony of Vocational Expert

Vocational Expert Mr. Bob Hammond testified at the hearing. (Tr. 45-50) The VE
characterized Plaintiff’s vocational background to include work experience as a tree trimmer, a
sawmill worker, a truck driver, and a welder. (Tr. 45)
The ALJ asked the VE to assume someone similar to Mr. Ezell in age, education, and
work experience who was limited to sedentary work, with the additional limitations that this
individual would be able to only occasionally climb, stoop, balance, kneel, crouch, or crawl;

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only limited to reaching in front but no overhead reaching; and would be required to avoid
concentrated exposures to vibration. (Tr. 45-46) The VE testified that such individual could
perform work as an eyewear assembler, a circuit board screener, and a semiconductor bonder, all
of the jobs at the sedentary exertional level.4 (Tr. 47) Next, the ALJ asked the VE to assume
another individual similar to Mr. Ezell with the same limitations as the last hypothetical but with
the additional limitation that the work could be performed by the worker from either the seated
of the standing position. (Tr. 47-48) The VE opined all three jobs he previously identified
would be appropriate. (Tr. 48)
Finally, the VE opined all jobs would be eliminated if he assumed a “third individual that
was only occasionally able to sustain sufficient concentration, and persistence, or pace to do
even the simplest task for eight hours a day, five days a week on a regular basis.” (Id.)
In response to the question by Plaintiff’s counsel, the VE classified how most of the jobs
he cited are performed at a counter top with the individual alternating between standing or sitting
throughout the shift. (Tr. 49) The VE further clarified that if the individual had to alternate
between sitting and standing in excess of every thirty minutes, this would preclude the
4

Although the issue has not been raised by Plaintiff, the Court notes a possible ambiguity in
the transcript of the administrative hearing. The first hypothetical question posed to the VE
assumed in relevant part an individual “limited to sedentary work with the additional limitations
that this individual would be able to only occasionally climb, stoop, balance, kneel, crouch, or
crawl; and only occasionally engage in overhead bilateral reaching.” Thereafter, the VE asked to
clarify one of the limitations. The record indicates that the VE had a question regarding the
reaching limitations. Rather than being limited to only occasional overhead reaching, the ALJ
asked the VE to consider a person who was limited to only occasional reaching in all directions,
bilaterally. In response to this modification of the first hypothetical, the VE testified that such
individual would not find work. The ALJ then asked the VE to consider a hypothetical
individual with “the same limitations as the last hypothetical – only occasional climbing,
stooping, balancing, kneeling, crouching, or crawling; only occasional bilateral overhead
reaching.” The VE testified that such person could perform the work all three jobs he previously
identified. (Tr. 45-48)
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performance of competitive work inasmuch as that would take the individual away from
persistency and pace by being off task more than six percent of the time. Counsel asked how
many days the individual could miss each month before being terminated. (Id.) The VE
explained the individual could not miss more than 1.5 days a month after the probationary period
of ninety days and could have no absences during the ninety-day probationary period. (Tr. 50)
B.

Forms Completed by Plaintiff

In a Disability Report - Field Office, the DDS interviewer noted that Plaintiff walked
with a cane and had to stand up a half an hour into the interview. (Tr. 154) The interviewer
observed that Plaintiff “had a neck brace with him that he placed behind his head and leaned
back against the wall.” (Id.)
In his Disability Report - Appeal, Plaintiff did not allege any worsening or new
impairments since he filed his last completed disability report. (Tr. 180)
III.

Medical Records and Other Records
A.

General History

The medical evidence in the record shows that Plaintiff has a history of back and neck
pain, anxiety, stiffness in the left side of his body, and diabetes. (Tr. 210-689) Although the
Court has carefully considered all of the evidence in the administrative record in determining
whether the Commissioner’s adverse decision is supported by substantial evidence, only the
medical records relevant to the ALJ’s decision and the issues raised by Plaintiff on this appeal
are discussed.
To obtain disability insurance benefits, Claimant must establish that he was disabled
within the meaning of the Social Security Act not later than the date his insured status expired, in

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this case September 30, 2013. Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998) (“In order to
receive disability insurance benefits, an applicant must establish that she was disabled before the
expiration of her insured status.”); see also 42 U.S.C. §§ 416(I) and 423(c); 20 C.F.R. § 404.131.

B.

Poplar Bluff Regional Medical Center Treatment Records

On April 1, 2008, Plaintiff presented in the emergency room at Poplar Bluff Regional
Medical Center for treatment of injuries sustained in a motor vehicle accident. (Tr. 551) A
computerized tomography scan showed a fracture of the right facet of C7. (Tr. 557) Dr. Ray
listed acute cervical strain in the clinical impression. (Tr. 551) Plaintiff was discharged home in
a stable and improved condition, and Dr. Ray found he could be appropriately treated on an
outpatient basis. (Id.) As treatment, Dr. Ray provided a soft collar for Plaintiff to wear. (Tr.
552) Dr. Ray noted that Plaintiff had moderate spasm of the paracervical musculature bilaterally
with moderate tenderness to palpation, and Plaintiff removed the collar due to discomfort. (Tr.
553) Although Dr. Ray explained to Plaintiff multiple times if he removed the spinal
precautions and moved around, it could kill him or paralyze him, Plaintiff still removed the
precautions and twisted his neck back and forth. (Tr. 554) After being fitted with the soft collar,
Plaintiff stated he felt better with the collar in place. (Tr. 555)
C.

Dr. Yuli Soeter - Poplar Bluff Regional Medical Center

Between September 29, 2009, and May 18, 2011, Dr. Yuli Soeter treated Plaintiff at the
Pain Clinic at Poplar Bluff Regional Medical Center. (Tr. 239-99, 446-549) Plaintiff presented
at the pain clinic on September 29, 2009 on referral by Dr. Andrew Gayle. (Tr. 297, 547)
Plaintiff reported having chronic neck pain that had been ongoing for a couple of years after a

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motor vehicle accident. Although Plaintiff had cervical spine surgery fourteen months earlier, he
still experienced pain, and physical therapy helped “a little.” Plaintiff reported any activity
caused his pain to worsen. (Id.) Plaintiff stated that he was unemployed, smoked a half a pack
of cigarettes a day, and occasionally smoked marijuana. (Tr. 298, 548) Musculoskeletal
examination showed tenderness to palpitation at C-4, C-5, C-6, and C-7, and motor strength of 5
out of 5 in the upper extremities. Dr. Soeter’s assessment included cervical post-laminectomy
syndrome, chronic pain syndrome, cervicalgia, and upper extremity radiculopathy. For
treatment, Dr. Soeter prescribed Zonegran for Plaintiff’s neuropathic pain. (Id.) In follow-up on
October 20, 2009, Plaintiff received a trigger point injection, and he reported he experienced
little pain relief and no side effects with Elavil. (Tr. 292, 544) On December 2, 2009, and
January 6, 2010, Dr. Soeter administered trigger point injections, and Plaintiff reported Elavil
had helped control his pain. (Tr. 286-89, 532-37) Plaintiff reported good pain relief from the
trigger point injections on February 3, 2010. (Tr. 285, 530) Dr. Soeter refilled Plaintiff’s Elavil
prescription and administered a trigger point injection. (Tr. 284-85, 529-30) During treatment
on March 3, 2010, Plaintiff reported significant and increased pain after being hit on the back of
his neck by a plastic bottle while attending a ball game. (Tr. 282, 526) Dr. Soeter administered
a trigger point injection. (Tr. 281, 525) On March 31 and April 29, 2010, Dr. Soeter
administered trigger point injections. (Tr. 277, 279, 519-23) After receiving the injections,
Plaintiff experienced increased range of motion and the ability to move his left arm more. (Tr.
278, 520)
During treatment on May 27, 2010, Plaintiff stated “that he is much improved since first
being treated at this clinic” and “he had been able to increase his exercise regimen and build his

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muscle and strength back up in the left upper extremity.” (Tr. 275, 516) Plaintiff reported that
Elavil provided him pain relief and enhanced his sleep. Dr. Soeter’s examination showed muscle
spasms with trigger point areas and motor strength of 5 out of 5 in Plaintiff’s upper extremities.
Dr. Soeter administered a trigger point injection and continued his Elavil prescription. (Tr. 27475, 515-16) On June 24, 2010, Plaintiff reported that his range of motion and his activities had
increased since undergoing the trigger point injections to the point where he had been working in
the garden digging, shoveling, and weeding. (Tr. 272, 512) Plaintiff was grateful for the relief he
had received from Amitriptyline, and he received a trigger point injection. (Tr. 271-72, 511-12)
During treatment on July 22 and August 19, 2010, Plaintiff complained of continued pain, and he
received trigger point injections. (Tr. 265-69, 507-09) In follow-up on September 16, October 7,
and November 4, 2010, Plaintiff received trigger point injections, and he reported being able to
increase his activity after having these injections, but he still experienced significant pain. (Tr.
256-64, 496-505) Plaintiff noted that the Xylocaine Gel helped his discomfort, but he
discontinued taking Keppra due to the side effects of nausea and agitation. (Tr. 260)
Plaintiff returned for trigger point injections on January 4 and March 2 and 30, 2011. (Tr.
247-55, 484-93) Plaintiff stated “it is worth going through the procedure to have relief for several
weeks” but he still complained of pain. (Tr. 248) Plaintiff requested refills of Xylocaine Gel and
Elavil, and he stated that both medications helped him control his pain. (Tr. 251) Plaintiff also
requested trigger point injections, and he reported doing well with that treatment. (Id.) In followup treatment on May 18, 2011, Plaintiff reported good pain relief from the trigger point injections,
and he requested another injection and medication refills. (Tr. 245, 481) Plaintiff denied having
any new pain. (Id.) Dr. Soeter prescribed refills of Elavil and Xylocaine Gel and administered a

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trigger point injection. (Tr. 243, 246)
On June 15, 2011, Plaintiff complained of significant burning pain with a history of spinal
enthesopathy and cervicalgia. (Tr. 239, 478) Plaintiff explained how his pain started after he
killed a three-foot long snake with a water hose, and in the process of killing the snake, he was
very physical resulting in a significant increase in pain. (Id.) Dr. Soeter administered a trigger
point injection and continued Plaintiff’s medication regimen of Elavil and Xylocaine Gel to
decrease his pain and improve his function. (Tr. 239-41)
On August 8, 2011, Plaintiff complained of burning and tingling radiation from his neck
down to his shoulder. (Tr. 384, 474) Plaintiff attributed his pain to increased activity. To
decrease Plaintiff’s pain and improve his function, Dr. Soeter administered a trigger point
injection and converted his Xylocaine Jelly to Xylocaine Ointment to provide better pain relief
and he also increased Plaintiff’s dosage of Elavil. (Tr. 382, 384) In follow-up treatment on
September 8, 2011, Plaintiff reported he had approximately 50% relief for two weeks, and he had
increased activity so the pain had returned. (Tr. 392, 470) Dr. Soeter refilled the Xylocaine
Ointment and administered a trigger point injection. (Tr. 390, 392) During treatment on October
12, 2011, Dr. Soeter noted Plaintiff has a history of cervicalgia, left upper extremity radicular
pain, cervical post laminectomy syndrome, and spinal enthesopathy. (Tr. 400, 467) Plaintiff
received refills of his medications and a trigger point injection. (Tr. 398-400) Although Plaintiff
reported good pain relief from the trigger point injection on November 9, 2011, he complained of
burning pain in his left upper arm after he fell in a barn. (Tr. 407, 464) An intracranial CT scan
showed no problems. Dr. Soeter provided the medication refills and administered a trigger point
injection. (Tr. 405, 407) On December 7, 2011, Plaintiff reported that his burning pain was

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significantly better, but he indicated that he still needed a trigger point injection and medication
refills. (Tr. 414, 461) Dr. Soeter administered the injection and ordered the medication refills.
(Tr. 412, 414)
Plaintiff returned on January 5, 2012, and reported continued use of Elavil and Xylocaine
Jelly without any side effects or problems and requested further trigger point injections. (Tr. 421,
457) Dr. Soeter administered the trigger point injections. (Tr. 419, 421) In follow-up on
February 22, 2012, Plaintiff stated he used Xlyocaine Gel for pain control and Elavil at bedtime
for pain control. (Tr. 429, 454) Plaintiff reported that his pain increased due to his missed
appointment. Dr. Soeter administered a trigger point injection and refilled his Xylocaine Gel and
Elavil prescriptions. (Tr. 427, 429) On March 22, 2012, Dr. Soeter administered a trigger point
injection to decrease Plaintiff’s pain and improve his function and provided a prescription for a
functional capacity test. (Tr. 664) Dr. Soeter noted that he had received a letter from Plaintiff’s
counsel asking him to rate Plaintiff’s disability and noted that he would write a prescription for a
physical therapist who would have the appropriate equipment and certification to rate Plaintiff’s
disability. (Id.)
On May 1, 2012, Plaintiff returned to the clinic complaining of burning pain and neck
pain. Dr. Soeter noted that Plaintiff had responded to the current medication regimen well so he
prescribed Xylocaine Gel and Elavil and administered a trigger point injection. (Tr. 447-48) Dr.
Soeter encouraged Plaintiff to continue the range of motion exercises. (Tr. 661) During
treatment on May 22, 2012, Plaintiff requested a trigger point injection be administered and asked
Dr. Soeter to rate his disability. (Tr. 451)
D.

Dr. Ross Andreassen - Advanced Pain Centers

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Between June 25, 2012, and March 18, 2013, Dr. Ross Andreassen treated Plaintiff’s arm
and neck pain. (Tr. 571-618) On June 25, 2012, Dr. Andreassen evaluated Plaintiff’s cervical
pain on referral by Dr. Gayle and rated that pain as moderate-to-severe. (Tr. 614, 650-55) Dr.
Andreassen found Plaintiff’s functional impairment to be moderate and interfered only with some
daily activities such as sleeping. Plaintiff advised that applying heat relieved the pain. (Id.) Dr.
Andreassen observed Plaintiff had normal gait and station, and found him able to undergo
exercise testing and to participate in an exercise program. (Tr. 616) Physical examination
showed tendernesss at C6 and C7; off the midline on the left in the trapezius; and over the area of
the rotator cuff. Dr. Andreassen prescribed Oxycodone-Acetaminophen and ordered a refill of
Feldene. (Id.) Dr. Andreassen advised Plaintiff to avoid cigarette smoking; to continue a home
exercise program; to increase his activity; and to reduce his weight. Dr. Andreassen made the
diagnosis of cervical discogenic pain, cervical facet arthropathy, surgical neck pain, osteoarthritis,
and diabetic neuropathy. (Tr. 617-18) A CT scan of Plaintiff’s cervical spine on July 9, 2012,
showed postsurgical changes, including: C6-7 anterior body fusion; findings suggestive of
degenerative disc disease changes at C2-3 and C3-4; and a trace of anterolisthesis of C5 on C6.
(Tr. 623-24, 657) In follow-up treatment on July10, 2012, Plaintiff reported that the pain
medications were helping and improving his daily functioning. (Tr.610) Examination revealed
tenderness of his cervical spine. (Tr. 611) Dr. Andreassen noted that, with respect to activities of
daily living, Plaintiff’s physical functioning and overall functioning were improved. (Tr. 612)
On August 7, 2012, Plaintiff complained of mild to moderate but sometimes severe neck pain.
(Tr. 606) Dr. Andreassen continued Plaintiff’s medication regimen and noted his physical
functioning was better. (Tr. 608-09) In follow-up treatment on September 5, 2012, Plaintiff

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reported that the effectiveness of Hydrocodone-Acetaminophen was good, and the medications
were helping and improving his daily functioning. (Tr. 602)
Plaintiff returned on October 3 and 31, 2012, for follow-up treatment for his neck pain.
(Tr. 594-601) Plaintiff reported that the pain medications were helping to improve his daily
functioning, and he had no adverse reactions to the medications. Examination showed some
cervical tenderness and Dr. Andreassen continued Plaintiff’s medication regimen. (Id.) In
follow-up treatment on November 27, 2012, Dr. Andreassen added Flexeril to Plaintiff’s
medication regimen. (Tr. 589-93) On December 27, 2012, Plaintiff reported improved daily
functioning and sleep, as well as tolerable pain levels with the use of pain medication. (Tr. 584)
Plaintiff received a verbal warning due to the inconsistent results in a drug urine test. (Tr. 587)
In follow-up treatment on January 22, 2013, Plaintiff complained of neck pain, that his pain
medications did not provide lasting relief, and requested a trigger point injection. (Tr. 579) Dr.
Andreassen administered a trigger point injection, increased Plaintiff’s dosage of HydrocodoneAcetaminophen, and refilled the Fledene, Flexeril, and Keppra prescriptions. (Tr. 581-82) On
February 18, 2013, Plaintiff complained of neck pain. (Tr. 575) Dr. Andreassen’s examination
showed moderate tenderness in the center of Plaintiff’s spine and around the facet joints. (Tr.
577) Dr. Andreassen refilled Plaintiff’s medication regimen and noted his physical functioning
was better. (Tr. 577-78) During treatment on March 18, 2013, Dr. Andreassen found moderate
tenderness in the center of Plaintiff’s spine and facet joints with radiation into his left shoulder
and slightly reduced range of motion due to pain. (Tr. 571-72) Dr. Andreassen noted that
Plaintiff had previous trigger point injections with good relief and scheduled Plaintiff for trigger
point injections to his left arm/shoulder. (Tr. 574)

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E.

Dr. Juan Salazar - Poplar Bluff Psychiatry Services

Between September 21, 2009, and June 15, 2011, Dr. Juan Carlos Salazar, of Poplar Bluff
Psychiatry Services, treated Plaintiff’s depressive disorder every two months and rated his GAF
score between 55 and 64. (Tr. 216-36) On November 20, 2009, Plaintiff reported improvement
in his pain and attributed that improvement to his treatment at a pain clinic. (Tr. 219) On March
23, 2010, Plaintiff reported that he was better overall and had no adverse drug reactions. (Tr.
222) During treatment on June 29, 2010, Plaintiff reported no drug reactions. (Tr. 228) In an
April 26, 2011, Psychiatric Diagnostic Interview Note, Plaintiff reported having been given pain
pills for his neck injury which he used occasionally. (Tr. 234-25) Dr. Salazar noted that Plaintiff
had a significant substance abuse history due to his regular marijuana usage and
methamphetamine usage. On June 15, 2011, Plaintiff reported that he was sore from catching and
physically battling a snake with a water hose. (Tr. 231) Plaintiff reported that he did not have
any depressive symptoms or any drug reactions. (Id.)
Between August 8, 2011, and March 5, 2012, Dr. Salazar treated Plaintiff’s depressive
disorder every two months and rated his GAF score between 55 and 65. (Tr. 433-42)5 Plaintiff
reported that he did not have any depressive symptoms and no adverse drug reactions on August

5

The Global Assessment of Functioning Scale (“GAF”) is a psychological assessment tool
wherein an examiner is to “[c]onsider psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness”; it does “not include impairment in functioning
due to physical (or environmental) limitations.” Diagnostic and Statistical Manual of Mental
Disorders (“DSM-IV”), 32 (4th ed. 1994). A GAF score between 51 and 60 indicates moderate
symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks), or moderate
difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or
co-workers). A GAF score between 61 and 70 indicates some mild symptoms (e.g., depressed
mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but generally functioning pretty well, has
some meaningful interpersonal relationships. DSM-IV 32.
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8, 2011. (Tr. 433) During treatment on September 26, 2011, Plaintiff stated that his pain issues
were still a problem, but he was moving towards better health. (Tr. 435) On November 29, 2011,
Plaintiff reported that he was feeling depressed more frequently as the holiday season approached,
and he believed that Valium was still helpful. (Tr. 437) Dr. Salazar added Celexa to Plaintiff’s
medication regimen. (Tr. 438) During treatment on January 5 and March 5, 2012, Plaintiff stated
that his mood was better regulated with the addition of Celexa, and he had been able to sustain a
fair level of emotional stability and anxiety control with no adverse drug reactions. (Tr. 439, 441)

F.

Dr. Andrew Gayle - Wayne Medical Center

Dr. Andrew Gayle, Plaintiff’s primary care physician, treated him from November 11,
2009, through October 29, 2012. A radiology examination of his right shoulder on November 11,
2009, showed diastasis of the AC joint. (Tr. 340)
During a recheck of hyperlipidemia on May 10, 2010, Plaintiff reported that his back/joint
pain was a little better. (Tr. 327) During treatment for diabetes on July 9, 2010, Dr. Gayle
encouraged Plaintiff to exercise. (Tr. 321) In follow-up treatment on December 8, 2010, Plaintiff
presented for a recheck of anxiety, and Dr. Gayle observed Plaintiff was not anxious. (Tr. 31112) On June 23, 2011, Plaintiff presented for an evaluation of neck pain, and he reported “[t]he
onset of the neck pain has been sudden following an incident not at work (fell this am left
shoulder hit neck) and has been occurring for 2 hours.” (Tr. 301) Dr. Gayle’s examination
revealed tenderness of his posterior neck. (Tr. 302) Dr. Gayle prescribed a soft collar for
Plaintiff to wear over the weekend and, if his symptoms worsened, Dr. Gayle directed him to
return for treatment. (Tr. 302)

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An x-ray of his cervical spine on July 9, 2010, showed post surgical changes of his upper
and lower cervical spine, degenerative changes with some mild disc space narrowing, and natural
foramina. (Tr. 344-45) The reviewing doctor noted no change since the previous examination on
January 26, 2009. (Id.) A cervical spine comparison on June 23, 2011, showed postoperative
changes and degenerative changes. (Tr. 339, 343) An x-ray of his cervical spine on November 3,
2011, revealed no acute abnormality. (Tr. 621)
On November 7, 2011, Plaintiff reported being hit in the head with a car door four days
earlier and being knocked to the ground. (Tr. 367) Plaintiff sought treatment in the emergency
room. Plaintiff stated that he felt better, but he was still having some pain and stiffness in his
neck. (Tr. 367)
On March 28, 2012, Plaintiff returned for a recheck of his diabetes and hypertension. (Tr.
645-49) Dr. Gayle made the diagnosis of hyperlipdemia and directed Plaintiff to keep the
scheduled follow-up treatment with an endocrinologist. (Tr. 647) Plaintiff returned on June 8
and July 25, 2012, for recheck appointments with Dr. Gayle. (Tr. 636-40) During follow-up
treatment on October 29, 2012, Plaintiff admitted that he had failed to follow-up with an
endocrinologist, and he has poor compliance with treatment noting he stopped taking Levimir.
(Tr. 628) Dr. Gayle resumed Plaintiff’s Levimir prescription and ordered to diet and monitor his
blood sugar closely. (Tr. 629).
G.

Dr. Wu Wen - Southeast Endocrinology

On September 9, 2011, Plaintiff presented at Southeast Endocrinology for treatment of his
diabetes by Dr. Wu Wen. (Tr. 188) Dr. Wen listed family history, obesity and sedentary lifestyle
as Plaintiff’s risk factors. (Id.) Dr. Wen’s examination showed Plaintiff’s back to be non-tender

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and a normal musculoskeletal with no tenderness. (Tr. 189) In follow-up treatment on January
24, 2012, Plaintiff reported that he was doing well for two months with diet and regular exercise,
but he relapsed after he stopped watching his diet and failed to exercise on a regular basis. (Tr.
185)
H.

Joseph Toney, D.O. - Piedmont Family Clinic

On March 1, 2013, Plaintiff returned for treatment at the Piedmont Family Clinic and
admitted that he had not been taking his diabetes medications and consequently was having
problems with diabetes. (Tr. 564) Dr. Toney restarted Plaintiff’s diabetes medications. (Tr. 563)
In follow-up treatment on March 22, 2013, Plaintiff reported he was doing well; Dr. Toney
refilled Plaintiff’s medication regimen and addressed his tobacco abuse. (Tr. 560)
I.

Other Record Evidence
1.

Tomography and Radiography

An cervical spine computed tomography on June 2, 2009, revealed interval anterior
cervical discectomy and fusion at C6-C7, and degenerative changes of the cervical spine, and
postoperative changes of the posterior element fusion from C2-C3 through C3-C4 levels. (Tr.
212-13) An MRI of Plaintiff’s cervical spine showed interval postsurgical findings of anterior
fusion C6-C7 with myelomalacia and atrophy affecting the cord at this level. (Tr. 214-15)
A radiography of Plaintiff’s cervical spine on July 6, 2010, revealed anterior cervical
fusion at C6-C7 and posterior cervical fusion at C2-C3 and C-3-C4. (Tr. 210) The radiologist
noted there to be no acute fracture or other abnormalities. (Id.)
2.

Genesis Home Care

From April 13, 2009 through March 31, 2014, Plaintiff received in-home personal care

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assistant from Genesis Home Care for three hours a day from April 1, 2010 through March 31,
2014, authorized by the Missouri Division of Senior and Disability Services. (Tr. 671-689)
IV.

The ALJ's Decision
The ALJ found that Plaintiff met the insured status requirements of the Social Security

Act through September 30, 2013. (Tr. 11) Plaintiff has not engaged in substantial gainful activity
since May 28, 2010, the amended onset date. The ALJ found Plaintiff has the severe impairments
of disorders of the back and affective disorders, but no impairment or combination of impairments
listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. (Tr. 1112) The ALJ found that Plaintiff has the residual functional capacity to perform a full range of
sedentary work “except he can occasionally climb, stoop, balance, kneel, crouch, and crawl; he
can occasionally reach overhead bilaterally; he must avoid concentrated exposure to vibration;
and he is limited to unskilled work.” (Tr. 13) The ALJ found Plaintiff is unable to perform any
past relevant work. (Tr. 16) Plaintiff has at least a high school education and is able to
communicate in English. The ALJ found that, considering Plaintiff’s age, education, work
experience, and residual functional capacity, there are jobs existing in significant numbers in the
national economy he could perform including an eyewear assembler, circuit board screener, and
semi-conductor bonder. (Tr. 17) The ALJ concluded Plaintiff has not been disabled within the
meaning of the Social Security Act at any time from May 28, 2010, the alleged onset date,
through the date of the decision. (Id.)
V.

Discussion
To be eligible for DIB and SSI, Plaintiff must prove that he is disabled. Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary of Health & Human Servs.,

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955 F.2d 552, 555 (8th Cir. 1992). Under the Social Security Act, a disability is defined as the
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
423(d)(1)(A); 1382c(a)(3)(A). Additionally, the claimant will be found to have a disability “only
if his physical or mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education and work experience, engage
in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C.
§§ 423(d)(2)(A); 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
The Commissioner has promulgated regulations outlining a five-step process to guide an
ALJ in determining whether an individual is disabled. First, the ALJ must determine whether the
individual is engaged in “substantial gainful activity.” If he is, then he is not eligible for
disability benefits. 20 C.F.R. § 404. 1520(b). If he is not, the ALJ must consider step two which
asks whether the individual has a “severe impairment” that “significantly limits [the claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant
does not have a severe impairment, he is not eligible for disability benefits. If the claimant has a
severe impairment the ALJ proceeds to step three in which he must determine whether the
impairment meets or is equal to one determined by the Commissioner to be conclusively
disabling. If the impairment is specifically listed, or is equal to a listed impairment, the claimant
will be found disabled. 20 C.F.R. § 404.1520(d). If the impairment is not listed, or is not the
equivalent of a listed impairment, the ALJ proceeds to step four which asks whether the claimant
is capable of doing past relevant work. If the claimant can still perform past work, he is not

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disabled. 20 C.F.R. § 404.1520(e). If the claimant cannot perform past work, the ALJ proceeds
to step five in which the ALJ determines whether the claimant is capable of performing other
work in the national economy. In step five, the ALJ must consider the claimant’s “age, education,
and past work experience.” Only if a claimant is found incapable of performing other work in the
national economy will she be found disabled. 20 C.F.R. § 404.1520(f); see also Bowen, 482 U.S.
at 140-41 (explaining five-step process).
Court review of an ALJ’s disability determination is narrow; the ALJ’s findings will be
affirmed if they are supported by “substantial evidence on the record as a whole.” Pearsall, 274
F.3d at 1217. Substantial evidence has been defined as “less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a decision.” Id. The court’s review
“is more than an examination of the record for the existence of substantial evidence in support of
the Commissioner’s decision, we also take into account whatever in the record fairly detracts
from that decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The Court will
affirm the Commissioner’s decision as long as there is substantial evidence in the record to
support his findings, regardless of whether substantial evidence exists to support a different
conclusion. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001).
In reviewing the Commissioner's decision, the Court must review the entire administrative
record and consider:
1.

The credibility findings made by the ALJ.

2.

The claimant's vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The claimant's subjective complaints relating to exertional and nonexertional activities and impairments.
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5.

Any corroboration by third parties of the claimant's impairments.

6.

The testimony of vocational experts when required which is based upon
a proper hypothetical question which sets forth the claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (quoting
Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
Plaintiff contends that the ALJ's decision is not supported by substantial evidence on the
record as a whole, because the ALJ failed to properly assess his credibility and RFC. Plaintiff
also contends the ALJ failed to fully and fairly develop the record.
A.

Credibility Determination and Residual Functional Capacity

Plaintiff contends that the ALJ's decision is not supported by substantial evidence on the
record as a whole, because the ALJ failed to properly assess his credibility and RFC.
The Eighth Circuit has instructed that, in the course of making an RFC determination, the
ALJ is to consider the credibility of a claimant’s subjective complaints in light of the factors set
forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). See also 20 C.F.R. §§ 404.1529,
416.929. Accordingly, the undersigned will begin with a review of the ALJ’s credibility
determination. See Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005) (it is clearly established
that, before determining a claimant’s RFC, the ALJ must first evaluate the claimant’s credibility).
The factors identified in Polaski include: a claimant’s daily activities; the location,
duration, frequency, and intensity of his symptoms; any precipitating and aggravating factors; the
type, dosage, effectiveness, and side effects of his medication; treatment and measures other than
medication he has received; and any other factors concerning his impairment-related limitations.
See Polaski, 739 F.2d at 1322; 20 C.F.R. §§ 404.1529, 416.929. An ALJ is not, however,
required to discuss each Polaski factor and how it relates to a claimant’s credibility. See Partee v.
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Astrue, 638 F.3d 869, 865 (8th Cir. 2011) (stating that “[t]he ALJ is not required to discuss
methodically each Polaski consideration, so long as he acknowledged and examined those
considerations before discounting a [plaintiff’s] subjective complaints”) (internal quotation and
citation omitted); Samons v. Astrue, 497 F.3d 813, 820 (8th Cir. 2007) (stating that “we have not
required the ALJ’s decision to include a discussion of how every Polaski factor relates to the
[plaintiff’s] credibility”). Finally, this Court reviews the ALJ’s credibility determination with
deference and may not substitute its own judgment for that of the ALJ. See Gregg v. Barnhart,
354 F.3d 710, 713 (8th Cir. 2003) (holding that “[i]f an ALJ explicitly discredits the [plaintiff’s]
testimony and gives good reasons for doing so, [the reviewing court] will normally defer to the
ALJ’s credibility determination”); Pearsall, 274 F. 3d at 1218.
In this case, the ALJ concluded that Plaintiff’s “allegations concerning the intensity,
persistence and limiting effects of his symptoms are less than fully credible because those
allegations are greater than expected in light of the objective evidence of record,” and his
“statements concerning the intensity, persistence and limiting effects of these symptoms [were]
not credible to the extent they are inconsistent with the [ALJ’s RFC] assessment.” (Tr. 14)
In evaluating Plaintiff’s credibility, the ALJ determined that he was not fully credible, in part,
because of his routine and conservative treatment since the amended onset date, and improvement
in pain and psychiatric symptoms with treatment. See Samons, 497 F.3d at 820.
The ALJ gave sufficient reasons for his adverse credibility finding and substantial
evidence in the record supports the ALJ’s reasoning. Although the ALJ did not specifically
mention Polaski, his opinion complies with that analytical rubric in that he considered numerous
Polaski factors.

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Regarding back pain, the ALJ noted Plaintiff received routine and conservative treatment
since the amended onset date, i.e., outpatient medication management and trigger point injections.
This is a proper consideration. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (conservative
treatment supported the ALJ’s adverse credibility determination); Black v. Apfel, 143 F.3d 383,
386 (8th Cir. 1998) (conservative treatment, including exercises and medication, and lack of
surgery supported the ALJ’s adverse credibility determination). Plaintiff’s failure to pursue more
aggressive treatment was also a proper consideration when evaluating his credibility. See Tate v.
Apfel, 167 F.3d 1191, 1197 (8th Cir. 1999). The medical record showed Plaintiff had a history of
cervical spine surgery in May 2008 with residual pain. In reviewing the objective test results, the
physicians noted degenerative changes of Plaintiff’s cervical spine and disc spaces. During the
relevant time period, the undersigned notes that none of the treating physicians found surgery to
be required and that conservative treatment consisting of physical therapy, pain medication, and
trigger point injections provided relief for Plaintiff’s complaints of back pain.
Next, the ALJ noted that the various forms of treatment have been generally successful in
controlling Plaintiff’s pain and mental health symptoms. See Davidson v. Astrue, 578 F.3d 838,
846 (8th Cir. 2009) ("Impairments that are controllable or amenable to treatment do not support a
finding of disability."); Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (holding that if an
impairment can be controlled by treatment, it cannot be considered disabling); Kisling v. Chater,
105 F.3d 1255, 1257 (8th Cir. 1997) (holding impairments which are controllable or amenable to
treatment do not support a finding of disability). The ALJ considered how the medical records
showed Plaintiff experienced decreased pain levels and stabilized psychiatric symptoms with the
use of medications and without any significant, adverse side effects. Conditions which can be

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controlled by treatment are not disabling. See Medhaug v. Astrue, 578 F.3d 805, 813 (2009) The
medical record showed during treatment with Dr. Andreassen, Plaintiff reported that the pain
medications were helping and improving his daily and physical functioning.6 The ALJ noted that,
when Plaintiff started pain management treatment on June 25, 2012, Dr. Andreassen found his
functional impairment to be moderate and interfered only with some daily activities such as
sleeping. In follow-up treatments, Plaintiff reported that the pain medications were helping and
improving daily functioning, and Dr. Andreassen noted that, with respect to activities of daily
living, his physical functioning and overall functioning were better. During treatment in October,
2012, Plaintiff reported tolerable pain levels with the use of pain medications; improvement in
daily functioning and sleep; and no adverse reactions to the medications and better regulated
mood with the addition of Celexa. Furthermore, Plaintiff reported on his current medication
regimen no adverse drug reactions.
Plaintiff’s activity level further undermines his assertion of total disability.7 Indeed,
6

Another proper consideration was Plaintiff’s failure to follow his doctor’s treatment
recommendations. Although Dr. Andreassen advised Plaintiff to avoid cigarette smoking; to
continue home exercise program; to increase activity; and to reduce his weight, he failed to do
so. See Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001) (failure to follow prescribed
course of treatment may be weighed against claimant’s credibility when assessing subjective
complaints). Similarly, the record suggests that Plaintiff’s condition improved with compliance.
In follow-up treatment with Dr. Wen, Plaintiff reported that he was doing well for two months
after the initial visit with diet and regular exercise, but he relapsed after he stopped watching his
diet and failed to exercise on a regular basis.
7
The undersigned finds Plaintiff’s argument that the Missouri Division of Senior and
Disability Services’ authorization for an in-home personal care assistant provided substantial
evidence that Plaintiff was unable to perform daily activities is without merit. The undersigned
notes that no determination of disability from the Missouri Division of Senior Disability Services
or from any other agency appears in the administrative record. The requirements for authorizing
an in-home personal care assistant are not necessarily the same for determining whether a
plaintiff is disabled for purposes of Social Security benefits. Plaintiff does not argue that the
requirements are substantially the same. Further, the determination of the Missouri Division of
Senior Disability Services is not binding on the Commissioner. Cf. Pelkey v. Barnhart, 433 F.3d
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Plaintiff admitted that, among other things, he engages in regular work activity by working in his
father’s garden digging, shoveling, and weeding, washing dishes, and preparing some meals.
Also, Plaintiff reported how he killed a three-foot long snake with a water hose, and this required
him to be very physical.8 There are cases in which a plaintiff’s ability to engage in certain
personal activities “does not constitute substantial evidence that he or she has the functional
capacity to engage in substantial gainful activity.” Singh v. Apfel, 222 F.3d 448, 453 (8th Cir.
2000) (finding that “staying around the house” and “watching T.V.” do not constitute substantial
evidence that the claimant could work); see also Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.
1998) (a claimant’s ability to engage in “personal activities such as cooking, cleaning, and
hobbies” does not per se constitute substantial evidence that the claimant could work). But that is
not the case here given both the extent of Plaintiff’s activities and the independent medical
evidence that he was not totally disabled. The medical record shows that numerous treating
sources advised Plaintiff to increase his activity level.
Further, the Court has not found any examining physician’s treatment notes stating that
Plaintiff was disabled or unable to work, or imposing mental or functional limitations on his
capacity for work. See Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000) (significant that no
examining physician submitted medical conclusion that claimant is disabled or unable to work);
Edwards v. Secretary of Health & Human Servs., 809 F.2d 506, 508 (8th Cir. 1987) (examining
physician's failure to find disability a factor in discrediting subjective complaints). The presence
575, 579 (8th Cir. 2006) (the ALJ is not bound by the disability rating or determination of
another agency when he is evaluating whether the claimant is disabled for purposes of social
security benefits); 20 C.F.R. §§ 404.1504, 416.904.
8
Although this activity resulted in Plaintiff experiencing pain and receiving medical
treatment, the undersigned notes that this activity required a greater exertional level than
required to perform sedentary work.
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or absence of functional limitations is an appropriate Polaski factor, and “[t]he lack of physical
restrictions militates against a finding of total disability.” Hutton v. Apfel, 175 F.3d 651, 655 (8th
Cir. 1999).
The medical records are inconsistent with Plaintiff’s alleged exertional limitations. For
example, numerous treating sources encouraged Plaintiff to exercise, and they never imposed any
restrictions on Plaintiff’s activities. On May 27, 2010, Plaintiff stated “that he is much improved
since first being treated at this clinic” and “he had been able to increase his exercise regimen and
build his muscle and strength back up in the left upper extremity.” (Tr. 275, 516) One provider
noted that Plaintiff was able to undergo exercise testing and to participate in an exercise program
and encouraged him to increase his activity level. Also, Dr. Andreassen made findings that
Plaintiff’s pain had only a moderate interference with daily activities.
Additionally, “[a]n ALJ may discount a claimant’s subjective complaints if there are
inconsistencies in the record as a whole.” Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir.
2008). See also McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011) (inconsistencies in record
detract from a claimant’s credibility). As noted by the ALJ, Dr. Andreassen’s June 25, 2012,
treatment plan “included increased activity and weight loss.” (Tr. 15) In another example, a
DDS interviewer noted that Plaintiff walked with a cane, but the medical records do not support
this need for a cane inasmuch as the use of a cane was never prescribed. See Kriebaum v. Astrue,
280 Fed.App’x 555, 559 (8th Cir. 2008) (finding ALJ’s adverse credibility determination based
on, inter alia, claimant’s use of self-prescribed cane to be “supported by good reasons”).
Likewise, Plaintiff testified he has to take at least one to two naps a day, varying from one hour to
two hours in duration. There is no objective medical evidence substantiating Plaintiff’s need to

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lie down. The record does not reflect physician imposed restrictions thus Plaintiff’s restrictions in
daily activities are self-imposed rather than by medical necessity. See, e.g., Harris v. Barnhart,
356 F.3d 926, 930 (8th Cir. 2004) (whether there is a need to lie down is a medical question
requiring medical evidence; record did not contain any evidence that medical condition required
claimant to lie down for hours each day).
In reviewing the record in this case, therefore, the Court is satisfied that the ALJ complied
with the standards outlined in Polaski and did not err in finding Plaintiff’s subjective allegations
less than credible.
After engaging in a proper credibility analysis, the ALJ incorporated into Plaintiff's RFC
those impairments and restrictions found to be credible. See McGeorge v. Barnhart, 321 F.3d
766, 769 (8th Cir. 2003) (explaining that the ALJ "properly limited his RFC determination to only
the impairments and limitations he found credible based on his evaluation of the entire record").
The ALJ determined that the medical evidence supported a finding that Plaintiff could perform
the full range of sedentary work, “except he can occasionally climb, stoop, balance, kneel, crouch,
and crawl; he can occasionally reach overhead bilaterally; and he must avoid concentrated
exposure to vibration; and he is limited to unskilled work.” (Tr. 13) This conclusion is supported
by substantial evidence. Although the medical evidence showed some abnormalities, Plaintiff
experienced decreased pain level with conservative treatment. Plaintiff’s doctors found his pain
to be improving and well controlled on medication. As noted by the ALJ, no medical provider
ever suggested functional limitations more restrictive than the RFC he formulated, and the
medical records indicate his psychiatric symptoms were also stabilized by medications. The
ALJ’s RFC acknowledges that Plaintiff experienced some pain because he limited him to

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sedentary work. Cf. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (noting that a limitation
to sedentary work “in itself is a significant limitation.”) The ALJ also limited Plaintiff to the
performance of unskilled work taking into consideration the medical record and Plaintiff’s
testimony. The record does not clearly mandate any greater limitations than those found by the
ALJ.
An independent vocational expert testified in response to hypothetical questions that
incorporated the same limitations as the RFC, and opined that such individual could perform
work as an eyewear assembler, a circuit board screener, and a semiconductor bonder.
Furthermore, Plaintiff’s contention that the ALJ failed to consider how his pain interfered
with his ability to concentrate is without merit. First, the medical record is devoid of any
reporting of this limitation to any treatment provider by Plaintiff. No treatment provider noted
such a limitation. Second, as discussed above, the ALJ properly discounted Plaintiff’s subjective
complaints.
Therefore, the undersigned finds that the ALJ did, in fact, consider Plaintiff’s pain in
making his RFC determination. Although the lack of objective medical evidence supporting
Plaintiff’s subjective complaints may not be the sole basis for rejecting those complaints, it is a
proper consideration. See Ford v. Astrue, 518 F.3d 979, 982 (8th Cir. 2008). Finally, “‘[an] ALJ
may disbelieve subjective complaints if there are inconsistencies in the evidence as a whole.’”
McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011) (quoting Strongson v. Barnhart, 361 F.3d
1066, 1072 (8th Cir. 2004)). The record shows such inconsistencies to support the ALJ’s
decision to discount his subjective complaints regarding his ability to concentrate.
The undersigned finds, therefore, that the ALJ's RFC determination is supported by

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substantial evidence on the record as a whole. "It is not the role of [the reviewing] court to
reweigh the evidence presented to the ALJ or to try the issue in this case de novo." Wiese v.
Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (citation omitted). "If after review, [the court] find[s] it
possible to draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner's findings, [the court] must affirm the denial of benefits." Id.
(quoting Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996)). Accordingly, the decision of the
ALJ denying Plaintiff's claims for benefits should be affirmed.

B.

ALJ’s Failure to Develop the Record

Plaintiff also contends the ALJ failed to fully and fairly develop the record. Plaintiff
argues that the ALJ should have recontacted his treating physician to ask for his opinion on
Plaintiff’s ability to perform work-related functions. Plaintiff’s argument appears to rest on a
passage in the ALJ’s decision in which the ALJ concluded that “there is no medical source
statement from any source that suggests functional limitations more restrictive than the [RFC]
found in this decision, and no medical source statement of functional limitations from any treating
source.” (Tr. 15) As explained below, the lack of an opinion from Plaintiff’s treating source does
not, in this case, necessitate a finding that the ALJ failed to properly develop the record.
“A social security hearing is a non-adversarial proceeding, and the ALJ has a duty to fully
develop the record.” Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005). "If the ALJ [does] not
believe ... that the professional opinions available to him were sufficient to allow him to form an
opinion, he should ... develop[] the record to determine, based on substantial evidence, the degree
to which [Plaintiff's] ... impairments limited [her] ability to engage in work-related activities."

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Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001) (citation omitted). This can be done by
recontacting medical sources and by ordering additional consultative examinations, if necessary.
See 20 C.F.R. § 404.1512; Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004). "The
regulations do not require the Secretary or the ALJ to order a consultative evaluation of every
alleged impairment. They simply grant the ALJ the authority to do so if the existing medical
sources do not contain sufficient evidence to make a determination." Matthews v. Bowen, 879
F.2d 423, 424 (8th Cir. 1989). "[I]t is reversible error for an ALJ not to order a consultative
examination when such an evaluation is necessary for him to make an informed decision."
Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000) (alteration in the original).
Although it is an ALJ’s duty to develop the record; it is the claimant’s duty to prove his
RFC. See Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). Moreover, “[t]he ALJ does not
‘have to seek additional clarifying statements from a treating physician unless a crucial issue is
undeveloped.’” Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (quoting Stormo v.
Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). “‘The Commissioner’s regulations explain that
contacting a treating physician is necessary only if the doctor’s records are inadequate ... to
determine whether [the claimant] is disabled such as when the report from [the] medical source
contains a conflict or ambiguity that must be resolved....’” Jones v. Astrue, 619 F.3d 963, 969
(8th Cir. 2010) (quoting Goff, 421 F.3d at 791). In this case, a crucial issue was not undeveloped;
rather, it was resolved unfavorably to Plaintiff. See, e.g. Steed v. Astrue, 524 F.3d 872, 876 (8th
Cir. 2008) (finding that claimant’s failure to provide medical evidence supporting her allegations
of work limitations “should not be held against the ALJ when there is medical evidence that
supports the ALJ’s decision”); Samons, 497 F.3d at 819 (finding the ALJ need not have contacted

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claimant’s treating physician after finding that physician’s opinion was inadequate to establish
disability when the opinion was not inherently contradictory or unreliable). “Ultimately, the
claimant bears the burden of proving disability and providing medical evidence as to the
existence and severity of an impairment.” Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013).
Plaintiff failed to do so.
In the instant case, there was sufficient medical evidence, as well as Plaintiff’s own
testimony, for the ALJ to determine that although Plaintiff had pain, it was not disabling pain.
The medical records evidenced improvement with consistent, conservative treatment. Further,
neither the medical records nor the treating doctors suggested any significant functional
limitations. The record provides a sufficient basis for the ALJ’s decision, and he was not required
to further develop the record.
VI.

Conclusion
For the foregoing reasons, the ALJ’s decision is supported by substantial evidence on the

record as a whole. Although Plaintiff articulates why a different conclusion might have been
reached, the ALJ’s decision, and, therefore, the Commissioner’s, was within the zone of choice
and should not be reversed for the reasons set forth above. An ALJ’s decision is not to be
disturbed “‘so long as the ... decision falls within the available zone of choice. An ALJ’s decision
is not outside the zone of choice simply because [the Court] might have reached a different
conclusions had [the Court] been the initial finder of fact.’” Buckner v. Astrue, 646 F.3d 549, 556
(8th Cir. 2011) (quoting Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008)). Accordingly,
the decision of the ALJ denying Plaintiff’s claims for benefits should be affirmed.
IT IS HEREBY ORDERED that the decision of the Commissioner be AFFIRMED. A

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separate Judgment in accordance with this Memorandum and Order is entered this same date.

Dated this

2nd

day of September, 2015.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE

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