Ash v. Colvin
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiff's Complaint is DISMISSED with prejudice. A separate Judgment will accompany this Order. Signed by District Judge John A. Ross on 9/29/2016. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of Social
Security’s final decision denying Plaintiff Linda Ash’s (“Ash”) application for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.
Plaintiff Linda Ash filed an application for disability insurance benefits under Title II of the
Social Security Act, 42 U.S.C. §§ 401 et seq., on October 10, 2012. (Tr. 113-19) The Social
Security Administration denied Ash’s claim on November 30, 2012. (Tr. 11) Ash filed a request
for a hearing before an administrative law judge (“ALJ”), and following a video hearing, the ALJ
issued a written decision on January 24, 2014 upholding the denial of benefits. (Tr. 11-18) Ash
requested review of the ALJ’s decision by the Appeals Council, which the Appeals Council denied
on May 20, 2015. (Tr. 1-4) Thus, the decision of the ALJ stands as the final decision of the
Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).
Ash filed this appeal on July 20, 2015. (Doc No. 1) The Commissioner filed an Answer on
September 22, 2015. (Doc. No. 7) Ash filed a brief in support of her Complaint. (Doc. No. 9) The
Commissioner filed a Brief in Support of the Answer. (Doc. No. 10)
Decision of the ALJ
The ALJ determined Ash had not engaged in substantial gainful activity since September
20, 2010, the alleged onset date of disability. (Tr. 13) The ALJ found Ash had the following
severe impairments: arthralgias 1 and history of peripheral vascular disease. (Tr. 14) The ALJ
further found that Ash had the following non-severe impairments: irritable bowel syndrome
(“IBS”), diabetes, high blood pressure, and depression. (Tr. 13). The ALJ concluded that no
impairment or combination of impairments met or medically equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix I. (Tr. 14)
After considering the entire record, the ALJ determined Ash had the residual functional
capacity (“RFC”) to perform light work except that she can only occasionally perform all postural
activities. (Tr. 14)
The ALJ determined that Ash is able to perform her past relevant work as a loan clerk, and
this work does not require the performance of work-related activities precluded by Ash’s RFC. (Tr.
16) Thus, the ALJ found Ash not disabled within the meaning of the Social Security Act. (Tr. 17)
The following is a summary of the relevant evidence before the ALJ.
The ALJ held a hearing in this matter on January 14, 2014.
Ash testified and was
represented by counsel. (Tr. 23-41) Vocational expert Janice Hastert also testified at the hearing.
Ash was 64 years old at the time of the hearing. (Tr. 28) She last worked in 2010, and she
According to the Mayo Clinic, arthralgia is inflammation or pain from within a joint.
http://www.mayoclinic.org/symptoms/joint-pain/basics/definition/sym-20050668 (last visited September 15, 2016).
performed line title research. (Tr. 28) This job required her to travel to courthouses and pull books,
which required her to climb ladders.
She stated that she stayed at this job for
approximately six months. (Tr. 28) Ash had issues at this job due to her IBS, which would
sometimes prevent her from working a full day. (Tr. 29) She stated that she has unexpected issues
with her IBS about three times a week. (Tr. 30)
Prior to her employment as a title clerk, Ash worked for a payday loan company. (Tr. 40)
She had worked there for nine and a half years. (Tr. 40) At this job, she had to close the office
several times to go home to clean up due to her IBS, after which she would return to the office to
finish her work. (Tr. 40-41)
Ash’s employer dismissed her. (Tr. 40) According to Ash, she was
dismissed because the payday loan company told her she “couldn’t do the job.” (Tr. 40)
Ash testified that on a typical day, she takes pain medication first thing in the morning
before she makes coffee. (Tr. 32) She will lay down after making the coffee in order to allow for
the pain medication to take effect. (Tr. 32) She mows her grass and takes care of “all the upkeep”
of her house. (Tr. 33, 197) This upkeep includes daily cleaning, weekly laundry, and repairs as
needed, all presumably around Ash’s house. (Tr. 197) More specifically, Ash vacuums, mops the
floors, and cleans the toilet. (Tr. 33) However, Ash often takes breaks during her chores, during
which time she usually rests on her couch. (Tr. 34-35) For example, Ash can mow about half of
her front yard before she needs to take a break. (Tr. 38) As a result, Ash takes anywhere from
several hours to a day or two to mow her lawn. (Tr. 38) Ash also states that she does not leave her
home often, and if she does, it is usually in the morning. (Tr. 33) Physically, Ash can walk about
half a block before the pain “feels like [her] bones are rubbing together.” (Tr. 38) She can stand
about 5 to 10 minutes, but her back hurts if she tries to stand longer. (Tr. 32)
At the time of the hearing, Ash was receiving several medications for her conditions. Ash
was taking Lantus, Pedra, and Byetta for her diabetes. 2 (Tr. 31) Ash also checked her blood sugar
three times a day. Ash also takes Aleve and Tramadol in the morning for her pain and Welchol for
her IBS. (Tr. 32, 36)
Testimony of vocational expert
With respect to Ash’s vocational history, vocational expert Janice Hastert testified that
Ash’s past positions of loan clerk and title clerk were at the light exertional level. (Tr. 42)
For the first hypothetical, the ALJ asked Hastert to determine whether someone who is
limited to work at the light exertional level and who could occasionally perform various postural
activities could have done Ash’s past work. (Tr. 41-42) Hastert opined that the loan clerk and title
clerk fall within that criterion as defined by the Dictionary of Occupational Titles (“DOT”). (Tr.
42) Hastert added that the typical break schedule for those types of jobs is as follows: a 10 to 15minute break in the morning, half hour or hour-long lunch break, and a 10 to 15-minute break in the
afternoon. (Tr. 42)
The ALJ also asked Hastert whether the jobs of loan clerk and title clerk would allow an
individual to take additional, unscheduled breaks three or four times a week in order to changes
clothes or go home to change. (Tr. 42) Hastert opined that such a schedule would require
accommodations from most work settings. (Tr. 42) In addition, Hastert stated that typically for
most of these jobs, an employer would allow an employee to be absent eight to ten days a year, and
an employee would be unable to sustain such employment if he or she was missing a couple of days
every week. (Tr. 43)
The ALJ summarized Ash’s medical records at Tr. 14-16. Relevant medical records are
These medications were spelled phonetically by the court reporter.
discussed as part of the analysis.
The Social Security Act defines as disabled a person who is “unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see also Brantley v.
Colvin, 2013 WL 4007441, at * 2 (E.D. Mo. Aug. 2, 2013). The impairment must be “of such
severity that [the claimant] 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, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he
applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
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(a), 404.1520(a). “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)). First, the claimant must not be
engaged in “substantial gainful activity.” 20 C.F.R. §§ 416.920(a), 404.1520(a). Second, the
claimant must have a “severe impairment,” defined as “any impairment or combination of
impairments which significantly limits [claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 416.920(c), 404.1520(c). “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 v. Astrue, 484 F.3d
1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001).
Third, the claimant must establish that his or her impairment meets or equals an impairment
listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). 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. Id.
Before considering step four, the ALJ must determine the claimant’s residual functional
capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as “the most a claimant
can do despite [his] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20
C.F.R. § 404.1545(a)(1)). At step four, the ALJ determines whether the claimant can return to his
past relevant work, by comparing the claimant’s RFC with the physical and mental demands of the
claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv),
416.920(f); McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011). If the claimant can still perform
past relevant work, he will not be found to be disabled; if the claimant cannot, the analysis proceeds
to the next step. Id.
At step five, the ALJ considers the claimant’s RFC, age, education, and work experience to
see if the claimant can make an adjustment to other work in the national economy. 20 C.F.R.
§§ 416.920(a)(4)(v). If the claimant cannot make an adjustment to other work, then he will be found
to be disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v). Through step four, the burden
remains with the claimant to prove that he is disabled. Brantley, 2013 WL 4007441, at *3 (citation
omitted). At step five, the burden shifts to the Commissioner to establish that the claimant
maintains the RFC to perform a significant number of jobs within the national economy. Id. “The
ultimate burden of persuasion to prove disability, however, remains with the claimant.” Meyerpeter
v. Astrue, 902 F. Supp. 2d 1219, 1229 (E.D. Mo. 2012) (citations omitted).
The Court’s role on judicial review is to determine whether the ALJ's findings are supported
by substantial evidence in the record as a whole. Pate–Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.
2009). In determining whether the evidence is substantial, the Court considers evidence that both
supports and detracts from the Commissioner's decision. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir.
2007). As long as substantial evidence supports the decision, the Court may not reverse it merely
because substantial evidence exists in the record that would support a contrary outcome or because
the court would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d 1019, 1022
(8th Cir. 2002).
To determine whether the ALJ’s final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
The findings of credibility made by the ALJ;
The education, background, work history, and age of the claimant;
The medical evidence given by the claimant’s treating physicians;
The subjective complaints of pain and description of the claimant’s physical activity
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon prior hypothetical questions which
fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
Ash raises three issues in this appeal. First, she alleges that the ALJ failed to provide an
RFC supported by substantial evidence by not properly evaluating her IBS, which Ash alleges is
severe, because the ALJ did not find her testimony to be credible. Second, Ash alleges that the ALJ
erred in not affording enough weight to the testimony of Dr. Elliott, Ash’s treating physician.
Third, Ash alleges that the ALJ erred in relying on the opinion of a non-examining source, Dr.
Threlkeld, rather than the treating physician.
Ash challenges the ALJ’s finding that her IBS was considered a non-severe impairment. In
the Eighth Circuit, “[a]n impairment is not severe if it amounts only to a slight abnormality that
would not significantly limit the claimant’s physical or mental ability to do basic work activities.
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (citations omitted). The impairment must have
more than a minimal effect on the claimant’s ability to work. Id. In addition, the claimant has the
burden to establish that the impairment or combination of impairments is severe. Id. The ALJ
found that Ash had a non-severe impairment of IBS because he found that Ash’s claims were not
The Court will first consider the ALJ’s credibility determination, as the ALJ’s evaluation of
Ash’s credibility was essential to his determination of other issues. See Wildman v. Astrue, 596
F.3d 959, 969 (8th Cir. 2010) (“[The plaintiff] fails to recognize that the ALJ’s determination
regarding her RFC was influenced by his determination that her allegations were not credible.”);
Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005) (“The ALJ must first evaluate the claimant’s
credibility before determining a claimant’s RFC.”); Pearsall v. Massanari, 274 F.3d 1211, 1217
(8th Cir. 2002) (same).
In evaluating a claimant’s credibility, the ALJ should consider the claimant’s daily
activities; the duration, frequency, and intensity of the symptoms; precipitating and aggravating
factors; dosage, effectiveness, and side effects of medication; and functional restrictions. Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The claimant’s relevant work history and the absence
of objective medical evidence to support the complaints may also be considered, and the ALJ may
discount subjective complaints if there are inconsistencies in the record as a whole. Choate v.
Barnhart, 457 F.3d 865, 871 (8th Cir. 2006) (citing Wheeler v. Apfel, 224 F.3d 891, 895 (8th Cir.
2000)). The ALJ must make express credibility determinations and set forth the inconsistencies
which led to his or her conclusions. Id. (citing Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995)).
The Court will uphold an ALJ’s credibility findings, so long as they are adequately explained and
supported. Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005).
In this case, the ALJ found that Ash’s statements “concerning the intensity, persistence, and
limiting effects of these symptoms [were] not entirely credible.” (Tr. 15) An ALJ may view “[a]cts
which are inconsistent with a claimant’s assertion of disability” to “reflect negatively upon that
claimant’s credibility.” Chaney v. Colvin, 812 F.3d 672, 677 (8th Cir. 2016) (quoting Johnson v.
Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001)). In assessing her credibility, the ALJ found that Ash’s
ability to perform several household tasks undermined Ash’s claims as to the severity of her IBS
symptoms. Ash stated in her hearing that she is able to do some housework, including vacuuming,
mopping the floors, and cleaning the toilet. (Tr. 33). She also reported that she is able to mow her
lawn (at a slower than average pace). (Tr. 38) In addition, the record reflects one instance when
Ash had traveled to Texas. (Tr. 309). Ash’s function report sheds more light on the activities of
daily living that she is able to perform. (Tr. 195) On a typical day, Ash makes coffee, lets the dog
out, is able to dress, clean the kitchen, vacuum, dust, sweep, and prepare her own meals. (Tr. 19597) Ash also picks up her grandchildren from their bus stop three days per week and sometimes
takes them to their doctors’ appointments. (Tr. 196). Furthermore, Ash helps care for a small dog.
(Tr. 196) Ash’s hobbies include reading, watching TV, and completing puzzles. (Tr .199) Ash
also reports that she goes to her daughters’ homes and relatives’ homes on a regular basis. (Tr.
199) These activities of daily living in which Ash was able to participate regularly further diminish
her credibility as to the disabling nature of her IBS.
The ALJ noted that despite Ash’s claims regarding her IBS, she had not discussed her IBS
in detail with Dr. Elliott, even after seeing him over the course of 10 years, which suggests that her
symptoms were not as serious as she suggests. (Tr. 15). The Eighth Circuit has consistently
considered a patient’s history of obtaining conservative treatment when evaluating his or her
subjective complaints of disabling pain or symptoms. Kamann v. Colvin, 721 F.3d 945, 950-51
(8th Cir. 2012) (noting that the ALJ properly considered that the claimant was seen “relatively
infrequently for his impairments despite his allegations of disabling symptoms”); Casey v. Astrue,
503 F.3d 687, 693 (8th Cir. 2007) (noting that the claimant sought treatment “far less frequently
than one would expect based on the [symptoms] that [he] alleged”); Black v. Apfel, 143 F.3d 383,
386 (8th Cir. 1998).
The ALJ also noted that Ash appeared to work for many years with her condition. (Tr. 15);
Goff, 421 F.3d at 792 (claimant continuing to work with impairments demonstrated that
impairments were not disabling). During an office visit on September 16, 2009, Ash complained of
painful, urgent diarrhea that she “has had for years.” (Tr. 361) She was diagnosed with IBS (with
painful diarrhea) during an office visit on December 16, 2009 (Tr. 357) Ash testified to the ALJ
that she last worked in 2010. 3 (Tr. 28) Ash’s subjective claims as to the severity of her IBS are
inconsistent with her activities of daily living and ability to continue working as a title clerk.
Consequently, the ALJ found that the objective medical evidence of record did not support a
finding that Ash’s discomfort would be so disruptive that she could not work full-time.
On September 16, 2009, Ash complained to Dr. Elliott of painful, urgent diarrhea, which
Dr. Elliott noted she “has had for years.” (Tr. 361) Dr. Elliott diagnosed Ash with IBS with painful
diarrhea. (Tr. 362) But during an office visit on December 16, 2009, Dr. Elliott noted that Ash’s
bowels were better. (Tr. 355, 357) On February 11, 2011, she was seen by another doctor at the
Kneibert Clinic, where Dr. Elliott also worked, who listed “IBS (with painful diarrhea)” under
Ash’s current problems. (Tr. 296) However, Ash denied having gastrointestinal issues, including
nausea, vomiting, diarrhea, and constipation. (Tr. 298) Ash did not mention any gastrointestinal or
IBS-related issues during her office visit on March 19, 2011. (Tr. 305)
On July 18, 2011, Ash was given Loperamide after she was diagnosed with IBS and painful
diarrhea. (Tr. 312) During this visit, Ash complained that her bowels “periodically flare up and get
Ash’s work history report states that Ash worked as a title researcher from May 2010 to September 2011, and a
separate position of title researcher from 1994 to September 19, 2010. (Tr. 180)
hard to control.” (Tr. 309) However, during three subsequent visits to Dr. Elliott on November 11,
2011, February 25, 2012, and October 13, 2012, Ash did not mention gastrointestinal or IBS-related
symptoms. (Tr. 317, 327-29, and 341). During an office visit on March 11, 2013, Dr. Elliott noted
“LOTS of bowel urgency” under patient history. (Tr. 383) Furthermore, he listed “? of irritable
bowel syndrome” as a “problem” under his impression and recommendations. (Tr. 383-84) During
an office visit on August 8, 2013, Dr. Elliott observed that Ash’s bowels were “MUCH BETTER
on the Welchol.” (Tr. 378) (emphasis in original)
On October 10, 2013, Ash received an annual physical from Dr. Hickey, who worked at the
same clinic as Dr. Elliott. (Tr. 375). Dr. Hickey’s notes that Ash was “feeling well.” (Tr. 375) A
list of Ash’s medications included Loperamide HCL, which Ash received for “loose stools”. (Tr.
375) Dr. Hickey noted under “review of symptoms” that Ash was “well nourished, well hydrated,
no acute distress.” (Tr. 376) On a November 8, 2013 office visit, Dr. Elliott noted that Ash was
“well nourished, well hydrated, no acute distress.”
Under impression and
recommendations, Dr. Elliott diagnosed three conditions: type II diabetes, hyperlipidemia 4, and
back pain, but with no reference to IBS. (Tr. 372-73)
As shown above, the record contains inconsistencies between Ash’s testimony and the
objective medical evidence as to the severity of Ash’s IBS. Even though Ash contends that
significant deterioration was present in her case, the ALJ properly found that Ash’s contentions as
to her symptoms are not entirely credible because of these inconsistencies. The absence of an
objective medical basis to support the degree of subjective complaints is an important factor in
evaluating the credibility of the claimant’s testimony and complaints. Russell v. Sullivan, 950 F.2d
542, 545 (8th Cir. 1991); see also Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004) (lack of
According to the American Heart Association, hyperlipidemia is the condition of having too many lipids, or fats, in the
p#.V-GklDW_vPE (last visited September 20, 2016)
objective medical evidence is a factor an ALJ may consider). Ash’s medical history reflects only
occasional reports and diagnoses of IBS and/or painful diarrhea. (Tr. 309, 312, 362, 382-83). The
rest of her record shows either no mention of bowel symptoms or improvement of her IBS
symptoms with medication. (Tr. 305, 317, 327-29, 341, 355, 357, 378) In addition, Ash often went
months without visiting her physician, and when she did, she often did not mention her IBS. Id.
Furthermore, even if Ash’s IBS was considered severe, there is sufficient evidence in the record to
reflect that it was not disabling. See Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir. 2012)
(conditions which can be controlled by treatment are not disabling); Davidson v. Astrue, 578 F.3d
838, 846 (8th Cir. 2009); Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009); 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). Dr. Elliott observed that Ash’s condition improved after she was
prescribed Welchol for her IBS. In addition, Ash did not mention her IBS during two subsequent
In sum, the ALJ’s credibility determination is supported by good reasons and substantial
evidence on the record. The Court also finds that the ALJ properly concluded that the record
contained a number of inconsistencies which diminished Ash’s credibility, and thus appropriately
found that Ash’s IBS was not considered a severe impairment under the Social Security Act.
Because the ALJ’s determination is supported by substantial evidence on the record as a whole, the
Court defers to his determination.
Dr. Elliott submitted a medical source statement-mental and a medical statement regarding
diabetes for Ash’s Social Security claim. (Tr. 391-93) In Ash’s medical source statement-mental,
Dr. Elliott stated that Ash is either “not significantly limited” or “moderately limited” in the
following categories: understanding and memory; sustained concentration and persistence; social
interaction; and adapt. (Tr. 391-92) Dr. Elliott also states that Ash can work 2 hours a day, stand
for 15 minutes at a time, sit for 30 minutes at a time, occasionally lift 10 pounds, and frequently lift
10 pounds. (Tr. 393) Dr. Elliott’s medical statements were given in checklist format. (Tr. 391-93)
The ALJ gave the opinion of Dr. Elliott little weight because it was inconsistent with the
objective medical evidence. (Tr. 15-16) Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (“If
the doctor’s opinion is inconsistent with or contrary to the medical evidence as a whole, the ALJ
can accord it less weight.”) A treating physician's opinion is generally entitled to substantial weight
but does not automatically control. Brown v. Astrue, 611 F.3d 941, 951-52 (8th Cir. 2010) (quoting
Heino v. Astrue, 578 F.3d 873, 880 (8th Cir.2009) (internal quotations and citation omitted). “An
ALJ may credit other medical evaluations over that of the treating physician when such other
assessments are supported by better or more thorough medical evidence.” “Whether the ALJ grants
a treating physician's opinion substantial or little weight, the regulations provide that the ALJ must
‘always give good reasons’ for the particular weight given to a treating physician's evaluation.”
Andrews v. Colvin, 2014 WL 2968815, at *2 (E.D.Mo. July 1, 2014) (quoting Prosch v. Apfel, 201
F.3d 1010, 1013 (8th Cir.2000)).
The ALJ also gave little weight to Dr. Elliott’s opinion because it was inconsistent with the
record as a whole. (Tr. 391-93) Despite Dr. Elliott’s conclusions as to Ash’s physical capabilities,
Ash reported at the hearing that she is able to mow her grass, vacuum, mop the floors, and clean the
toilet. (Tr. 33-34) Ash apparently traveled to Texas sometime in July 2011, which would further
contradict Dr. Elliott’s conclusion as to Ash’s physical limitations. (Tr. 309) Ash’s function report
also detailed several additional activities of daily living in which Ash was able to engage on a
Further, “[i]t is appropriate to give little weight to statements of opinion by a treating
physician that consist of nothing more than vague, conclusory statements.” Swarnes v. Astrue, Civ.
No. 08–5025–KES, 2009 WL 454930, at *11 (D.S.D. Feb. 23, 2009) (citation omitted); see also
Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir .2010) (finding that the ALJ properly discounted a
treating physician's opinion where it consisted of checklist forms, cited no medical evidence, and
provided little to no elaboration). The ALJ also considered the sporadic nature of Ash’s complaints
about her IBS and/or diarrhea to Dr. Elliott. (Tr. 15) Due to the inconsistency present between Dr.
Elliott’s opinion that Ash is severely limited, the conclusory nature of Dr. Elliott’s findings, Ash’s
own testimony before the ALJ, and the objective medical evidence in the record, the Court finds
that the ALJ properly weighed Dr. Elliott’s medical opinion.
Ash relies on Wagner v. Astrue, 499 F.3d 842 (8th Cir. 2007), and Samons v. Astrue, 497
F.3d 813 (8th Cir. 2007), for her contention that Dr. Elliott’s opinion should be afforded
controlling, if not at least substantial, weight. (Doc. No. 9, at 11) However, the Eighth Circuit has
held that the ALJ “may reject the conclusions of any medical expert, whether hired by the claimant
or the government, if they are inconsistent with the record as a whole.” See Wagner, 499 F.3d at
848; see also Travis, 477 F.3d at 1041 (“The ALJ is required to assess the record as a whole to
determine whether treating physicians’ opinions are inconsistent with substantial evidence on the
record.”) (citation omitted). In this case, the ALJ properly considered and gave little weight to Dr.
The ALJ afforded more weight to a non-examining source, Dr. Kevin Threlkeld. (Tr. 16)
Dr. Threlkeld found that Ash could occasionally lift and/or carry 20 pounds, frequently lift and/or
carry 10 pounds, stand and/or walk (with normal breaks) for a total of about six hours in an eighthour workday, and sit (with normal breaks) for a total of about six hours in an eight-hour workday.
(Tr. 49) Dr. Threlkeld found that Ash has the following postural limitations: she can occasionally
climb ladders, ropes, and scaffolds; balance; stoop; kneel; crouch; and crawl. (Tr. 50)
Opinions of non-examining sources are generally given less weight than those of examining
sources. Willcockson v. Astrue, 540 F.3d 878, 880 (8th Cir. 2008). In addition, when evaluating a
non-examining source’s opinion, the ALJ must evaluate the degree to which the source provides
supporting evidence for his or her opinion and the degree to which these opinions consider the
opinions of treating and other examining sources. 20 C.F.R. § 1527(c)(3). However, “the more
consistent an opinion is with the record as a whole, the more weight [the ALJ] will give to that
opinion.” 20 C.F.R. § 1527(c)(4).
Dr. Threlkeld’s medical evidence and conclusions were based on a review of Ash’s medical
history and treatment notes. (Tr. 46-52) Dr. Threlkeld referred to specific treatment notes and
provided extensive support for his conclusions in his report. Id. Based on Ash’s activities of daily
living, current treatment, and other precipitating and aggravating factors, Dr. Threlkeld found Ash
to be partially credible. (Tr. 49) Furthermore, Dr. Threlkeld’s findings are consistent with the
record when taken as a whole. The ALJ therefore properly weighed Dr. Threlkeld’s medical
opinion and conclusion.
Ash contends that the ALJ failed to properly consider Ash’s IBS when assessing her RFC.
A claimant’s RFC is defined as the most an individual can do despite the combined effects of all of
his or her credible limitations. Moore, 572 F.3d at 523. The ALJ must determine a claimant’s RFC
based on all of the record evidence, including the claimant’s testimony regarding symptoms and
limitations, the claimant’s medical treatment records, and the medical opinion evidence. See Myers
v. Colvin, 721 F.3d 521, 527 (8th Cir. 2013) (RFC must be determined based on all relevant
evidence, including medical records, observations of treating physicians and others, and claimant’s
“Because a claimant’s RFC is a medical question, an ALJ’s assessment of it must be supported by
some medical evidence of the claimant’s ability to function in the workplace. However, there is no
requirement that an RFC finding be supported by specific medical evidence.” Hensley v. Colvin,
No. 15-2829, 2016 WL 3878219, at *3 (8th Cir. July 18, 2016) (internal quotations and citations
In finding that Ash is able to perform a range of light work, the ALJ properly considered the
available medical evidence, Ash’s credibility, her activities of daily living, and her work history in
determining her RFC. The ALJ specifically referred to Ash’s hearing testimony and Dr. Elliott’s
and Dr. Threlkeld’s medical opinions. More specifically, the ALJ considered the wide variety of
activities that Ash is able to do. The record shows that Ash is capable of performing a wide variety
of household tasks and other activities of daily living. These activities include cleaning, caring for
pets, preparing meals, yardwork, and socializing with family and relatives. The ALJ declined to
adopt Dr. Elliott’s finding as to Ash’s RFC after he properly found Ash’s claims on the severity of
her IBS symptoms to be not entirely credible based on the evidence available to the ALJ in the
record, including Ash’s own recollections on her daily activities. The Court therefore finds that the
ALJ properly made the RFC determination based on medical evidence and substantial evidence in
the record as a whole.
For these reasons, the Court finds there is substantial evidence in the record as a whole to
support the denial of benefits and, therefore, the Commissioner’s decision should be affirmed.
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED with prejudice. A separate Judgment will accompany this
Dated this 29th day of September, 2016.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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