Herren v. Colvin
MEMORANDUM AND ORDER re: 21 SOCIAL SECURITY CROSS BRIEF re 16 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin, 16 SOCIAL SECURITY BRIEF filed by Plaintiff Thresa Herren. IT IS HEREBY ORDERED that, the decision of the Commissioner is AFFIRMED. A separate Judgment shall be entered this day. Signed by Magistrate Judge John M. Bodenhausen on 10/5/16. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
THRESA MAE HERREN,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
No. 1:15 CV 195 JMB
MEMORANDUM AND ORDER
This action is before the Court, pursuant to the Social Security Act (“the Act”), 42 U.S.C.
§§ 401, et seq. The Act authorizes judicial review of the final decision of the Commissioner of
Social Security (the “Commissioner”) denying Plaintiff Thresa Mae Herren’s application for
Disability Insurance Benefits. All matters are pending before the undersigned United States
Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c). The matter is fully
briefed, and for the reasons discussed below, the Commissioner’s decision is affirmed.
Procedural History & Summary of Memorandum Decision
On January 31, 2013, Plaintiff filed an application for Disability Insurance Benefits
(“DIB”) under Title II of the Act. Plaintiff alleged a disability onset date of September 30, 2011.
(Tr. 16) 1 Plaintiff’s claim was denied initially on March 26, 2013. (Id.) Thereafter, Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”), which was held on April 22,
2014. Plaintiff and Janice Hastert, an independent Vocational Expert (“VE”), testified at the
hearing. (Tr. 29) On May 20, 2014, the ALJ issued a decision concluding that Plaintiff was not
disabled under the Act. (Tr. 16-25) The Social Security Administration Appeals Council denied
“Tr.” refers to the administrative record filed on behalf of the Commissioner.
Plaintiff’s request for review, leaving the ALJ’s decision as the final decision of the
Commissioner in this matter. (Tr. 1) Plaintiff filed the instant action on October 28, 2015.
(ECF No. 1) Accordingly, Plaintiff has exhausted her administrative remedies and the matter is
properly before this Court. Plaintiff has been represented throughout all relevant proceedings.
Although the ultimate issue before the Court is whether substantial evidence supports the
Commissioner’s decision, Plaintiff’s request for judicial review asks the Court to consider two
Whether the ALJ erred in resolving alleged inconsistencies among three
source opinions, and consequently, whether the ALJ’s determination of Plaintiff’s
Residual Functional Capacity (“RFC”) was supported by substantial evidence;
Whether the ALJ erred in assessing Plaintiff’s credibility.
After a thorough review of the record, the Court concludes that the Commissioner’s
decision is supported by substantial evidence. The differences between the source opinions were
adequately explained by the ALJ’s decision. The ALJ’s determination of Plaintiff’s RFC is
supported by the record and the ALJ’s decision fairly articulates a basis for that RFC. The ALJ
properly evaluated Plaintiff’s credibility and adequately explained the bases for finding
Plaintiff’s subjective allegations less than fully credible.
Administrative Record 2
At the time of her administrative hearing, Plaintiff was 51 years old. Prior to 2013,
Plaintiff had a fairly robust work history, having previously worked as a janitor and machine
operator. (Tr. 178, 221) Plaintiff represents that she has been disabled since September 30,
The undersigned has reviewed and considered the entire administrative record. Only
those portions of the record that are most pertinent to the Court’s decision are specifically
summarized and discussed herein.
2011, when she injured her knee while “she was going down some stairs with a bucket and …
missed a step.” (Tr. 239)
Plaintiff claims she is disabled due to mobility problems, mostly related to problems with
her left knee. Plaintiff also reported left arm numbness and a pinched nerve in her neck. (Tr.
166) According to Plaintiff, her injuries prevent her from standing or sitting for long periods of
time. (Tr. 173) Plaintiff’s 2011 knee injury resulted in two knee surgeries—the first in
December 2011 and the second in August 2012. Plaintiff returned to work after each surgery,
but was laid off in 2013. (Tr. 163)
In her Function Report – Adult, Plaintiff listed the following conditions that impact her
ability to work: lifting, squatting, bending, standing, walking, sitting, kneeling, and stair
climbing. (Tr. 199) Plaintiff represented that “stair climbing puts pressure on my knee and it
hurt[s]. I can only lift about 20 pound[s], and squatting, bending, standing, [or] kneeling makes
my knee hurt. Walking about 1 hour makes my knee swell up and I have to ice it down. Sitting
about 1 hour make[s] my knee start hurting [and I] have to raise [my] knee up on pillows and ice
[it] down.” (Id.)
Medical and Opinion Evidence
Dr. James Edwards, M.D.
As noted above, Plaintiff’s principle impairment relates to a left knee injury. Plaintiff’s
treating physician for her knee injury was Dr. James Edwards, M.D. Because Dr. Edwards’
treatment of Plaintiff and his opinions regarding her abilities are significant considerations in this
case, the undersigned will summarize Dr. Edwards’ treatment records in detail to provide greater
context to the Court’s decision.
The record indicates that, although Plaintiff injured her knee on September 30, 2011, her
first visit with Dr. Edwards was on November 7, 2011. (Tr. 239) Plaintiff reported that she
missed a step while she was going down stairs with a bucket. (Id.) Plaintiff had a twist injury,
with most of her pain on the medial (inside) part of her left knee, with a little pain in the anterior
(front) and posterior (back) portions as well. (Id.) X-ray images of Plaintiff’s knee showed “a
relatively well aligned joint with no obvious or acute abnormalities,” with “[w]ell maintained
joint space.” (Id.) Dr. Edwards ordered an MRI to rule out a medial meniscal tear, and
recommended no squatting or kneeling. (Tr. 240) Dr. Edwards indicated that Plaintiff could
return to work, but was limited to no bending, squatting, twisting, or kneeling. (Tr. 279)
Plaintiff had an MRI of her left knee on November 21, 2011 (Tr. 241), and a follow-up
visit with Dr. Edwards on November 28, 2011. At the follow-up, Plaintiff complained of pain.
Dr. Edwards’s clinical impression was a “high suspicion for a medial meniscal tear,” and that
Plaintiff “[m]ay have a component of lateral patella compression syndrome.” (Tr. 242) As a
result, on December 15, 2011, Dr. Edwards performed arthroscopic lateral release surgery on
Plaintiff’s left knee cartilage. (Tr. 237-38, 244) Dr. Edwards indicated that Plaintiff could return
to work, but she was limited to no bending, squatting, twisting, or kneeling. (Tr. 280)
On December 28, 2011, in Plaintiff’s first follow-up visit after her knee surgery, Dr.
Edwards noted that Plaintiff needed therapy twice per week for two weeks, and that she did not
require any pain medication. (Tr. 245)3 During a follow-up appointment on January 17, 2012,
Dr. Edwards noted that, “[o]verall she is doing very well.” Plaintiff was continued on physical
therapy, and allowed to return to work with restrictions of “no kneeling, squatting, or ladder
climbing.” (Tr. 246, 282)
Plaintiff returned to Dr. Edwards on January 30, 2012, after she “felt a pop.” (Tr. 248)
Plaintiff was given a corticosteroid (Depomedrol) injection and continued on therapy. Dr.
The copy of Dr. Edwards’ “Return to Work Record” for December 28, 2011, is of poor
quality. (Tr. 281)
Edwards continued the work-related restrictions of no kneeling, squatting, twisting, or ladder
climbing, and added a lifting restriction of not greater than five pounds. Dr. Edwards
specifically instructed that Plaintiff should not lift mop buckets. (Tr. 248, 283)
Plaintiff’s next follow-up visit with Dr. Edwards was on February 21, 2012. Dr. Edwards
was concerned that Plaintiff’s symptoms were greater than he would like to see at that point.
(Tr. 250) As a result, Dr. Edwards administered another corticosteroid injection. Plaintiff’s
therapy was discontinued but her work restrictions were to remain in effect. Dr. Edwards began
a course of treatment using Naprosyn (an NSAID anti-inflammatory drug). (Id.) During followup treatment on March 5, 2012, Dr. Edwards noted that Plaintiff continued to complain of
symptoms “when she is up.” Dr. Edwards continued Plaintiff’s work restrictions, and returned
her to physical therapy. (Tr. 251) Plaintiff returned to Dr. Edwards on March 26, 2012, still
complaining of pain. (Tr. 252) Dr. Edwards discontinued therapy, continued Plaintiff’s workrelated restrictions, ordered another MRI, and ordered a brace. (Id.)
Plaintiff had another MRI of her left knee on April 11, 2012, and a follow-up visit with
Dr. Edwards on April 23, 2012. (Tr. 254, 256) Dr. Edwards noted no evidence of any meniscal
pathology but some evidence of fibrosis. (Tr. 224-25) As a result, Plaintiff elected to have Dr.
Edwards perform an arthroscopic debridement procedure on her left knee. (Tr. 256) In the
meantime, Plaintiff received pain medication and her work-related restrictions remained in place.
(Tr. 256-67, 286-89)
On August 9, 2012, Dr. Edwards performed an arthroscopic “major debridement”
procedure on Plaintiff’s left knee. (Tr. 231-32, 268) During a follow-up visit on August 22,
2012, Plaintiff was “doing fairly well,” but was “non weight bearing.” Plaintiff was working on
her range of motion and continued on the same work restrictions “as far a sedentary only.” (Tr.
270, 290) During follow-up treatment on September 12, 2012, Dr. Edwards noted that Plaintiff
continued to “have some discomfort with extremes.” (Tr. 272) Dr. Edwards recommended
Plaintiff be “fairly aggressive” going forward with exercise therapy, with four weeks of therapy,
three-to-five times per week. (Id.) Dr. Edwards continued Plaintiff’s work-related restrictions,
including limiting her to sedentary work. (Tr. 272, 291) During follow-up treatment on
September 26, 2012, Dr. Edwards noted that Plaintiff was “getting some improvement” but she
also continued to have difficulty and discomfort. Dr. Edwards continued Plaintiff’s therapy and
sedentary work-related restrictions. (Tr. 274, 292)
On November 6, 2012, Plaintiff returned to Dr. Edwards for a follow-up appointment. At
that time, Dr. Edwards noted that Plaintiff was “[d]efinitely improving.” Dr. Edwards limited
Plaintiff’s physical therapy to avoid exercises that cause pain. (Tr. 276) Dr. Edwards also
indicated that he would like to return Plaintiff to work without restrictions, and see her again in
six weeks. (Tr. 276, 293) Plaintiff was to wear a brace when she was “up and about.” (Id.)
Plaintiff returned to Dr. Edwards on December 13, 2012. Plaintiff reported that she was
doing better, but was having problems with therapy. (Tr. 277) Plaintiff indicated that she was
not having problems at work. (Id.) Dr. Edwards discontinued physical therapy and placed “[n]o
restrictions” on Plaintiff, requesting that she return in five weeks “to make sure that she
continues to improve.” (Id.) Dr. Edwards’ Return to Work Record indicates that Plaintiff could
return to work without restrictions. (Tr. 294)
On January 17, 2013, Plaintiff returned to Dr. Edwards for a follow-up visit. Plaintiff
reported intermittent symptoms. (Tr. 278) Dr. Edwards’ notes indicate that he found Plaintiff
had reached “MMI,” and noted that she was “at full duty without restrictions.” 4 (Tr. 278, 295)
Plaintiff was to take “an occasional anti inflammatory as well [as] migraine medicine for the
Based on context, the undersigned construes Dr. Edwards’ “MMI” notation to be an
abbreviation for maximum medical improvement.
knee pain. Otherwise I will see her back on an as needed basis.” (Id.)
Pemiscot Memorial Hospital
The administrative record before the Court indicates that Plaintiff received treatment at
Pemiscot Memorial Hospital. (Tr. 299-352) On January 28, 2013, Dr. Jim Hazel examined
Plaintiff relative to cervical spine pain. The treatment notes indicate no significant abnormality.
(Tr. 299) Most of the remaining notes from Pemiscot Memorial Hospital relate to Plaintiff’s
rehabilitation and physical therapy associated with her left knee pain and surgeries. (See, e.g.,
Caruthersville Clinic – Dr. Douglas Fitzwater, M.D.
Apart from her orthopedic treatment with Dr. Edwards, Plaintiff also received medical
treatment from Dr. Douglas Fitzwater and his clinic. (Tr. 355-65) These visits generally
concerned routine medical matters such as influenza and conjunctivitis. (See, e.g., Tr. 357, 359)
On January 28 and 31, 2013, Plaintiff was seen by Dr. Fitzwater due to complaints of hip pain
and an arm numbness problem. (Tr. 361-65) Plaintiff was treated with a limited course of
medication without any further intervention noted. (Tr. 364-65)
Southeast Missouri Health Network
Plaintiff also received treatment from providers at Southeast Missouri Health Network –
Portageville, Missouri. (Tr. 365-80) Plaintiff was seen for a variety of ailments and conditions,
including ankle pain, wrist issues, sinus problems, left arm numbness, congestion, adjustment
disorder, and back pain. Plaintiff routinely received conservative treatment, such as a short term
course of medication. (Id.)
Mid-America Rehab, P.C. – Vic Zuccarello
The administrative record includes documents from Mid-America Rehab, P.C. (Tr. 381412) These records include notes and forms associated with a Functional Capacity Evaluation
(“FCE”) completed by Occupational Therapist Vic Zuccarello, dated June 20, 2013, upon
referral from Dr. Edwards. In her identification information, Plaintiff indicated that, although
she had been laid off, she was looking for another job. (Tr. 412) The records also indicate that
Plaintiff provided a great deal of background information in connection with Mr. Zuccarello’s
FCE. Plaintiff rated her pain in seven areas of life, and described her pain primarily in
connection with her left knee.
Mr. Zuccarello concluded that Plaintiff had the following demonstrated impairments:
Mild decrease in terminal L knee flexion ROM. Moderately decreased L quad
strength. Mildly antalgic gait pattern consistent with guarding of LLE in climbing
and lower level postures. Decreased L calf girth. She does have valid
dysfunction but seems to have adapted to the changes it imposes on her current
After conducting what appears to be a thorough evaluation, Mr. Zuccarello concluded
that Plaintiff “display[ed] no overt functional limiting factors that would prohibit work in her
prior job. She had been working full duty up to the time of lay-off and would likely still be
working in that job despite some residual discomfort. She is looking for a job in the same
occupation presently.” (Tr. 396) Mr. Zuccarello opined that, based on his evaluation, Plaintiff
function on a full-time basis in the MEDIUM work demand level as follows:
no limitations per the employer job
Non-Material Handling: no limitations per the employer job
All findings were discussed with the work after the FCE.
These guidelines meet full duty requirements.
Orthopedic Consultant Services – Dr. Dwight Woiteshek, M.D.
Dr. Dwight Woiteshek, M.D., conducted an independent medical evaluation of Plaintiff
in April 2013. (Tr. 414-20) Dr. Woiteshek submitted a letter, dated April 10, 2013, which
documented his evaluation. Dr. Woiteshek reviewed Plaintiff’s medical history and conducted a
physical examination of Plaintiff. Plaintiff complained of “pain, stiffness, and weakness of her
left knee area.” (Tr. 416)
Dr. Woiteshek opined that Plaintiff had “not reached maximum medical improvement”
for her knee injury, and that there remained “a reasonable probability that [Plaintiff] will require
additional medical treatment related to [her knee injury] to give her comfort or relief if a cure is
beyond avail. This additional medical treatment will include but not be limited to continued
medication, physical therapy, pain management, and left total knee surgery.” (Tr. 418) Dr.
Woiteshek further opined that, if Plaintiff did not receive the additional medical treatment,
Plaintiff would be hindered in her ability to become reemployed as follows:
There is a 40% permanent partial disability of the lower extremity rated at the
knee level (160 weeks) due to the traumatic internal derangement of the left knee
s/p surgery on 12/15/11 by Dr. Edwards, the subsequent postoperative
arthrofibrosis seen on the MRI scan taken on 4/11/12 s/p a second surgery on
8/9/12 by Dr. Edwards, and the subsequent posttraumatic osteoarthritis reasonably
confirmed. The rating accounts for ongoing discomfort, stiffness, and weakness
in the left knee area.
Dr. Woiteshek noted the following permanent work-related restrictions for Plaintiff:
She is advised to avoid repetitive stooping, squatting, crawling, kneeling,
and all impact maneuvers.
She should be cautious navigating steps on uneven surfaces and ladders,
especially if she must handle weight.
She should continue strengthening, stretching, and range of motion
She should walk, bike, or swim to tolerance daily for exercises.
She should consider glucosamine as a useful supplement to maintain
articular surface cartilage.
If she must be on her knees for any reason, she should have pads on the
surface of her knees.
She should limit prolonged weight-bearing including standing and walking
On April 22, 2014, the ALJ conducted a hearing on Plaintiff’s disability application. (Tr.
29-46) Plaintiff, who appeared with counsel, testified in response to questions posed by the ALJ
and counsel. Plaintiff was 51 years old at the time of the hearing. Among other things, Plaintiff
testified that she completed the twelfth grade, has never married, and was living with her
boyfriend. Plaintiff’s boyfriend and one of her two daughters help Plaintiff around the house.
Plaintiff explained that she became disabled as a result of a knee injury she sustained in
September 2011. Plaintiff represented that she continued to earn income after the injury because
she was paid to “come out to [her] workplace and sit in the cafeteria and sit there and look at four
walls, … eight hours a day.” (Tr. 35) Plaintiff explained that she was eventually laid off on
January 3, 2013.
Plaintiff described the limitations and pain she experienced as a result of her knee
problems. Plaintiff represented that she could no longer work because of knee pain. 5 Plaintiff
explained that, although she has already had two knee surgeries, she will eventually need a
complete knee replacement. Plaintiff further explained that she is on pain medication, muscle
relaxers, and anti-depression medication. She also described stomach, sinus, and allergy issues.
Plaintiff indicated that she had no side effects from her medications, and although they do not
relieve all of her symptoms, they allow her to get more rest.
In addition to knee issues, Plaintiff testified that her left ankle also hinders her activities.
According to Plaintiff’s testimony, sometimes she feels like a bone snapped in her ankle, and she
For example, Plaintiff testified that, “if I’m on my leg for more than 30 minutes or
actually 15 minutes, after 15 minutes I start … having pain in the knee. After about 30 [minutes]
it gets so bad I have to sit down for about 30 minutes.” (Tr. 35)
cannot walk for a couple of days. Plaintiff explained that her doctor told her to take a vitamin D
supplement to address her ankle problem.
Regarding her activities, Plaintiff testified that she was able to drive; she drove herself to
the hearing and drives herself to her medical appointments. Plaintiff explained that she cannot
do housework because she cannot get down on her knees or reach up. Plaintiff could shop for
groceries “and things like that,” and attend to minor cooking (e.g., “a hamburger or something
like that”) but not a big meal. (Tr. 38) Plaintiff was also able to do her own laundry. Plaintiff
visits her mother in a nursing home twice weekly. Plaintiff’s daughter assists her with many
other household tasks. Her boyfriend mows her lawn.
In addition to pain in her left knee, Plaintiff also experiences swelling. To relieve her
symptoms, Plaintiff uses a recliner to elevate her foot and an ice machine.
Vocational Expert (“VE”) Janice Hastert testified in response to questions posed by the
ALJ. The ALJ asked the VE to consider a hypothetical worker, with the same background as
Plaintiff, who retained the residual functional capacity (“RFC”) to occasionally lift 20 pounds;
frequently ten pounds; walk or stand six hours out of an eight hour day for 30 minutes at a time;
and sit for six hours out of eight hours. The hypothetical worker could occasionally climb stairs,
but should never climb ropes, scaffolds or ladders; she could never kneel, crouch or crawl; and
she would be limited to no pushing and pulling with the left lower extremity.
The VE opined that this hypothetical worker could not return to Plaintiff’s past relevant
work, but would retain the RFC to perform other jobs that existed in substantial numbers in the
national or regional economy, within the light, unskilled category, including officer helper,
shipping/receiving weigher, and photo copy machine operator.
This is a DIB case. Plaintiff alleged a disability onset date of September 30, 2011. Based
on Plaintiff’s past earnings history, the ALJ determined that Plaintiff met the insured status
through December 31, 2017. (Tr. 16, 18)
In assessing whether Plaintiff was disabled, the ALJ followed the required five-step
process laid out in the Commissioner’s regulations. At step one, the ALJ found that Plaintiff had
not engaged in substantial gainful activity after her alleged onset of disability. (Tr. 18) At step
two, the ALJ found that Plaintiff had the following severe impairment: “status post left knee
arthroscopy and subsequent debridement.” (Id.) The ALJ also found that Plaintiff had the
following non-severe impairments: rhinitis, and adjustment disorder. (Tr. 18-19) Regarding
Plaintiff’s adjustment disorder, the ALJ indicated that the condition had been treated by
Plaintiff’s primary care physician with Cymbalta, and that Plaintiff did not require any
specialized mental health treatment. (Tr. 19) Additionally, the ALJ considered the four broad
functional areas associated with evaluating mental disorders and found that Plaintiff’s mental
impairment caused not more than mild limitations, and she had experienced no episodes of
decompensation. (Id.) The ALJ also noted that there were references in the record to left arm
numbness and left ankle pain, but there were no “corresponding medical diagnoses from an
acceptable medical source.” (Tr. 19) Accordingly, the ALJ concluded that these latter
conditions were not “medically determinable impairments.” (Tr. 20) The ALJ noted, however,
that all impairments, severe and non-severe, were “taken into account in assessing [Plaintiff’s]
residual functional capacity.” (Id.)
At step three, the ALJ found that none of Plaintiff’s impairments, alone or in
combination, met or equaled a listed impairment. The ALJ expressly considered and rejected
Listing 1.02 (major dysfunction of a joint). (Tr. 20) 6
In her brief to this Court, Plaintiff does not contend that the ALJ erred in this regard at
At step four, the ALJ concluded that Plaintiff had the RFC to –
perform light work as defined in 20 CFR 404.1567(b), in that, she can lift and
carry 20 pounds occasionally and 10 pounds frequently, walk or stand 6 hours out
of an 8 hour work day and sit for 6 hours out of an 8 hour work day, except she
may occasionally climb stairs but should never climb ropes, scaffolds or ladders.
She should never crouch, kneel or crawl. She should never push or pull with the
lower left extremity.
In making this RFC determination, the ALJ also made an adverse determination
regarding Plaintiff’s credibility. In particular, the ALJ concluded that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of [her] symptoms [were] not entirely
credible ….” (Tr. 21)
The ALJ considered the opinions of Plaintiff’s orthopedic surgeon, Dr. Edwards, which
are discussed above. (Tr. 22) The ALJ gave significant weight to Dr. Edwards’ September 2012
opinion, wherein he released Plaintiff back to work, but restricted her to sedentary activities.
(Id.) The ALJ also gave significant weight to Dr. Edwards’ November 2012 opinion, wherein he
released Plaintiff to work without any further limitations. (Id.)
The ALJ also considered the records associated with the June 2013 functional capacity
evaluation completed at Mid-America Rehab. The ALJ gave significant weight to the conclusion
that Plaintiff had “demonstrated physical tolerances [that] placed her within the range of medium
exertion work, which was compatible with her past work.” (Tr. 22) The ALJ noted that the
weight given to the opinion was “reduced somewhat in deference to [Plaintiff’s] subjective
The ALJ also specifically considered the independent medical examination conducted by
Dr. Woiteshek, of Orthopedic Consultant Services. (Tr. 22-23) The ALJ gave only “little
weight” to Dr. Woiteshek’s disability rating in which he opined that Plaintiff had a “40 percent
permanent partial disability of the lower left extremity,” caused by Plaintiff’s September 2011
knee injury. (Tr. 23) The ALJ gave “some weight” to the functional limitations found by Dr.
Woiteshek, 7 in that these restrictions were consistent with the RFC identified by the ALJ. (Id.)
As a result of his RFC determination, and with the assistance of testimony from the VE,
the ALJ concluded that Plaintiff could not perform the duties of her past relevant work. (Tr. 24)
At step five, the ALJ relied on the VE’s testimony to support a conclusion that there
existed sufficient jobs in the national economy that Plaintiff could still perform, such as office
helper, shipping/receiving weigher, and photocopy machine operator. (Tr. 24-25) Accordingly,
the ALJ found that Plaintiff was not disabled under the Act. (Tr. 25)
Issues Presented for Review
Plaintiff raises two separate issues for review. First, Plaintiff contends that the ALJ erred
in assessing her RFC. Plaintiff argues that the ALJ gave significant weight to three different
opinions without resolving inconsistencies within those opinions. Plaintiff also contends that the
ALJ failed to provide a sufficient narrative explanation as to how the evidence supported a
conclusion that Plaintiff could perform light work. Accordingly, Plaintiff contends that the RFC
is not supported by substantial evidence. Second, Plaintiff contends that the ALJ’s adverse
credibility determination was flawed. According to Plaintiff, apart from Plaintiff’s activities of
daily living, the ALJ failed to explain what inconsistencies or discrepancies were relied upon in
discrediting Plaintiff’s subjective complaints. Additionally, Plaintiff contends that the ALJ
should have taken into account Plaintiff’s strong work history.
The ALJ summarized the consultant’s statement of Plaintiff’s functional limitations as
follows: (1) Plaintiff “should avoid repetitive stooping, squatting, crawling and kneeling;” (2)
she “should be cautious with stairs, uneven surfaces or ladders;” and (3) she “should limit
prolonged weight-bearing through standing or walking.” (Tr. 23)
The Commissioner has filed a brief in opposition, refuting Plaintiff’s allegations of error.
Standard of Review and Analytical Framework
To be eligible for DIB benefits, a claimant must prove that she is disabled within the
meaning of the Act. See Baker v. Sec’y of Health and Human Servs., 955 F.2d 552, 555 (8th
Cir. 1992); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Under the 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) and 1382c (a)(3)(A). A claimant will be found to have a
disability “only if [her] physical or mental impairment or impairments are of such severity that
[she] is not only unable to do [her] previous work but cannot, considering [her] 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) and 1382c(a)(3)(B). See also Bowen v. Yuckert,
482 U.S. 137, 140 (1987).
Per regulations promulgated by the Commissioner, the ALJ follows a five-step process in
determining whether a claimant is disabled. “During this process the ALJ must determine: ‘1)
whether the claimant is currently employed; 2) whether the claimant is severely impaired; 3)
whether the impairment is, or is comparable to, a listed impairment; 4) whether the claimant can
perform past relevant work; and if not 5) whether the claimant can perform any other kind of
work.’” Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015) (quoting Hacker v. Barnhart, 459
F.3d 934, 936 (8th Cir. 2006)). “If, at any point in the five-step process the claimant fails to
meet the criteria, the claimant is determined not to be disabled and the process ends.” Id. (citing
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)); see also Martise v. Astrue, 641 F.3d 909,
921 (8th Cir. 2011).
The Eighth Circuit has repeatedly emphasized that a district court’s review of an ALJ’s
disability determination is intended to be narrow and that courts should “defer heavily to the
findings and conclusions of the Social Security Administration.” Hurd v. Astrue, 621 F.3d 734,
738 (8th Cir. 2010) (quoting Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001)). The
ALJ’s findings should be affirmed if they are supported by “substantial evidence” on the record
as a whole. See Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). Substantial evidence is “less
than a preponderance, but enough that a reasonable mind might accept it as adequate to support a
decision.” Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008); see also Reece v. Colvin, -F.3d --, 2016 WL 4446109 at *3 (8th Cir. Aug. 24, 2016); Wildman v. Astrue, 964 F.3d 959, 965
(8th Cir. 2010).
Despite this deferential stance, a district court’s review must be “more than an
examination of the record for the existence of substantial evidence in support of the
Commissioner’s decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The district
court must “also take into account whatever in the record fairly detracts from that decision.” Id.
Specifically, in reviewing the Commissioner’s decision, a district court is required to examine
the entire administrative record and consider:
The credibility findings made by the ALJ.
The claimant’s vocational factors.
The medical evidence from treating and consulting physicians.
The claimant’s subjective complaints relating to exertional and nonexertional activities and impairments.
Any corroboration by third parties of the claimant’s impairments.
The testimony of vocational experts, when required, which is based upon a
proper hypothetical question which sets forth the claimant’s impairment.
Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (citation
Finally, a reviewing court should not disturb the ALJ’s decision unless it falls outside the
available “zone of choice” defined by the evidence of record. Buckner v. Astrue, 646 F.3d 549,
556 (8th Cir. 2011). A decision does not fall outside that zone simply because the reviewing
court might have reached a different conclusion had it been the finder of fact in the first instance.
Id.; see also Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016); McNamara v. Astrue, 590
F.3d 607, 610 (8th Cir. 2010) (explaining that if substantial evidence supports the
Commissioner’s decision, the court “may not reverse, even if inconsistent conclusions may be
drawn from the evidence, and [the court] may have reached a different outcome”).
Analysis of Issues Presented
The Court first addresses the ALJ’s adverse credibility determination, as that decision
impacted the RFC the ALJ assigned to Plaintiff. See Wildman, 596 F.3d at 969 (explaining that
an “ALJ’s determination regarding [a claimant’s] RFC was influenced by [the ALJ’s]
determination that [claimant’s] allegations were not credible”) (citing Tellez v. Barnhart, 403
F.3d 953, 957 (8th Cir. 2005)).
“An ALJ has a ‘statutory duty’ to ‘assess the credibility of the claimant,’ and thus, ‘an
ALJ may disbelieve a claimant’s subjective reports of pain because of inherent inconsistencies or
other circumstances.’” Crawford v. Colvin, 809 F.3d 404, 410 (8th Cir. 2015) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 589-90 (8th Cir. 2004)). Moreover, the Eighth Circuit
has instructed that, in the course of making an RFC determination, the ALJ is to consider the
credibility of a plaintiff’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. The
factors identified in Polaski include:
(i) claimant’s daily activities; (ii) the duration, frequency, and intensity of
claimant’s pain; (iii) precipitating and aggravating factors; (iv) the dosage,
effectiveness, and side effects of medication; and (v) the claimant’s functional
Julin v. Colvin, 826 F.3d 1082, 1086 (8th Cir. 2016) (citing Polaski, 739 F.2d at 1322; 20 C.F.R.
An ALJ is not required to discuss each Polaski factor and how it relates to a plaintiff’s
credibility. See Partee v. Astrue, 638 F.3d at 860, 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”).
This Court reviews the ALJ’s credibility determination with deference and may not
substitute its own judgment for that of the ALJ. “The ALJ is in a better position to evaluate
credibility, and therefore we defer to [the ALJ’s] determinations as they are supported by
sufficient reasons and substantial evidence on the record as a whole.” Andrews, 791 F.3d at 929
(citing Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006)). See also Julin, 826 F.3d at 1086
(explaining that “[c]redibility determinations are the province of the ALJ” and the deference
federal courts owe to such determinations); 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”).
In this case, despite Plaintiff’s arguments to the contrary, the ALJ gave good reasons for
discounting Plaintiff’s credibility. Accordingly, the Court will defer to the ALJ in this regard.
Plaintiff’s brief suggests that the ALJ discounted her credibility on the basis of her
activities of daily living, and failed to explain how any other evidence detracted from her
credibility. 8 This is not correct. The ALJ considered the evidence, including the opinion
evidence, in both assessing Plaintiff’s credibility and identifying her RFC.
A brief review of the ALJ’s decision and relevant evidence is sufficient to demonstrate
that the ALJ’s credibility determination was not only adequately explained, but also supported by
substantial evidence in the record as a whole. For example, the ALJ noted that, after her second
surgery to clean up her knee, Plaintiff received relatively conservative treatment for her
symptoms. See Milam v. Colvin, 794 F.3d 978, 985 (8th Cir. 2015); cf. Buford v. Colvin, 824
F.3d 793, 797 (8th Cir. 2016); Lawson v. Colvin, 807 F.3d 962, 965 (8th Cir. 2015). In this
regard, the ALJ considered the November 2012 opinion of Plaintiff’s orthopedic surgeon, Dr.
Edwards, who released Plaintiff back to work without restrictions. The ALJ explained that Dr.
Edwards’ opinion was “consistent with the contemporaneous medical evidence ….” (Tr. 22)
The ALJ further explained that, as of January 2013, although Plaintiff’s knee had reached its
maximum, medical improvement, and Plaintiff still had “complaints of intermittent symptoms.
She addressed those symptoms by using occasional anti-inflammatory medication.” According
to the ALJ, “[t]hat admission ... belies her allegations of disability because disabling pain would
require much more than [such] intermittent treatment.” (Id.)
As another example, the ALJ stated the following regarding a June 2013 functional
[Plaintiff] reported her left-knee pain to range from 3/10 to 6/10 when performing
a broad range of activities of daily living and work-related activities. On that
scale, 10/10 was described as completely disabled. [Plaintiff] reported her pain in
the last month had reached 7/10 only, at its worst. This admission, when viewed
in context of the pain scale, directly contradicts her allegations of disability and
weighs negatively against her credibility.
Plaintiff avers that, “[w]hile the ALJ did discuss Herren’s activities of daily living, after
that discussion, the ALJ provided a summary of the evidence but failed to subsequently explain
how such information damaged Herren’s credibility.” (ECF No. 16 at 14)
(Tr. 22, emphasis supplied) Similarly, the ALJ accurately noted that functional testing placed
Plaintiff’s physical tolerances “within the range of medium exertion work.” (Tr. 22, 396)
As Plaintiff acknowledges, the ALJ concluded that Plaintiff’s daily activities, while not
conclusive proof of an ability to work, were “not limited to the extent one would expect given
[Plaintiff’s] complaints of disabling symptoms and limitations.” (Tr. 21) This was a proper
consideration relative to Plaintiff’s credibility. See Perks v. Astrue, 687 F.3d 1086, 1093 (8th
Cir. 2012) (noting that the claimant’s normal activities were inconsistent with complaints of
disabling pain) (citing Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir. 2009)). See also McDade
v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (citing Perks).
Finally, while the record supports a conclusion that Plaintiff had a good work history
prior to her knee injury, the fact that the ALJ did not specifically mention that history in making
his credibility determination is not fatal to the decision. An ALJ may still discount a claimant’s
credibility despite a good work history. See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir.
2007); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008); Partee, 638 F.3d at 865
(explaining that an ALJ is not required to discuss each Polaski factor); Samons, 497 F.3d at 820
(same). Any failure to more thoroughly discuss Plaintiff’s work history amounts to, at most, an
“arguable deficiency in opinion-writing technique,” that would not require this Court to reverse
the ALJ’s decision in this matter. Hepp, 511 F.3d at 806.
In summary, the ALJ gave good reasons for discounting Plaintiff’s subjective complaints.
Thus, the ALJ’s decision in this regard will not be disturbed. 9 See Julin, 826 F.3d at 1086
Perhaps it is worth noting that the ALJ did not completely discredit Plaintiff’s
subjective complaints. In fact, the ALJ credited her subjective complaints in limiting her to light
work, rather than a more strenuous level. For example, although the ALJ gave significant weight
to Dr. Edward’s November 2012 conclusion that Plaintiff could return to work without
restrictions, he included additional limitations in Plaintiff’s RFC “in deference to [her] subjective
complaints.” (Tr. 22) Similarly, although Plaintiff’s physical tolerances arguable place her
(noting the deference due to an ALJ’s credibility determination); Gregg, 354 F.3d at 713.
RFC and Opinion Evidence
Plaintiff contends that the ALJ’s RFC is not supported by substantial evidence because
the ALJ failed to resolved inconsistencies in the evidence, and failed to provide a sufficient
narrative discussion regarding how the evidence supports the ALJ’s conclusion that Plaintiff
could perform light work. Plaintiff contends, in substance, that the ALJ’s finding that Plaintiff
was capable of performing light work, albeit with additional restrictions, was inconsistent with
the fact that the ALJ gave significant weight to Dr. Edwards’ opinion that, as of September 2012,
Plaintiff was limited to only sedentary work. (ECF No. 16 at 11-12) Again, Defendant takes
issue with Plaintiff’s characterization of the ALJ’s decision.
A claimant’s RFC is the most that claimant can do despite her limitations. See 20 C.F.R.
§ 404.1545(a)(1). In determining a claimant’s RFC, the ALJ should consider “all the evidence in
the record, including the medical records, observations of treating physicians and others, and an
individual’s own description of [her] limitations.” Krogmeier v. Barnhart, 294 F.3d 1019, 1024
(8th Cir. 2002) (internal quotations omitted). While the RFC determination occurs at step four,
where the claimant has the burden of proof, the Eighth Circuit has explained that the ALJ has
primary responsibility for determining the RFC. Id.
Substantial evidence supports the ALJ’s consideration of the various source opinions, as
well as his determination of Plaintiff’s RFC. Plaintiff’s argument rests on an incomplete
recitation of the record and the ALJ’s decision. Plaintiff is correct in noting that the ALJ gave
“significant weight” to the September 2012 opinion of Dr. Edwards that Plaintiff was restricted
to a sedentary level of activity. But that was Dr. Edwards’ opinion during a snapshot in time—
within the medium exertion level, the ALJ gave some deference to her subjective complaints in
limiting her to light work. (Id.)
shortly after he performed debridement surgery on Plaintiff’s knee. (Tr. 22, 274) What Plaintiff
does not fully consider is that Dr. Edwards’ opinion regarding Plaintiff’s limitations changed
over the next couple of months, as Plaintiff’s condition improved following surgery. As such,
the ALJ also gave significant weight to Dr. Edwards’ November 2012 opinion in which he
concluded that Plaintiff could return to work without restrictions. (Tr. 22, 276) In fact, during
later follow-up visits, Dr. Edwards continued to report that Plaintiff could return to work without
restrictions. (Tr. 277, 278)10
It must be remembered that Dr. Edwards was Plaintiff’s treating orthopedic surgeon.
Arguably, the ALJ could have granted controlling weight to Dr. Edwards’ opinion that Plaintiff
was capable of returning to work without any restrictions. See Reece, 2016 WL 44446109 at *3.
The ALJ, however, gave Plaintiff some benefit of the doubt regarding her subjective complaints.
As such, the ALJ concluded that Plaintiff was capable of only light work, with the additional
limitations noted in the RFC. 11
Finally, when Dr. Edwards’ opinions are considered in their entirety and full context, the
remainder of Plaintiff’s argument regarding an alleged failure to harmonize the various opinions
unwinds. The ALJ’s decision adequately and fairly discharges his duty of resolving the various
opinions. See Finch, 547 F.3d at 936 (“The ALJ is charged with the responsibility of resolving
conflicts among medical opinions.”). Further, the ALJ gave sufficient and good reasons for
weighing the evidence as he did. See Reece, -- F.3d at --, 2016 WL 44446109 at *3 (citing
Dr. Edwards’ January 17, 2013 notes indicate that Plaintiff “is at full duty without
restrictions,” and that she could take “an occasional anti inflammatory as well [as] migraine
medication for the knee pain. Otherwise I will see her back on an as needed basis.” (Tr. 278,
Plaintiff has not articulated any specific and meaningful errors regarding the additional
limitations in Plaintiff’s RFC. Accordingly, the undersigned will not address those limitations
Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008); 20 C.F.R. § 404.1527(d)(2)).
In addition to Dr. Edwards’ opinions, the ALJ considered records from the 2013
functional capacity evaluation at Mid-America Rehab, and the opinions of Dr. Woiteshek, a
The results of a functional capacity evaluation placed Plaintiff within the range of
medium-level work. 12 The ALJ gave that conclusion significant weight. While it is true that
medium-level is work more restrictive than Dr. Edwards’ latter opinions (which placed no
restrictions on Plaintiff), it was less restrictive than the light-level ultimately assigned to
Plaintiff’s RFC. Thus, to the extent there is an unexplained conflict between opinions, the ALJ
resolved that conflict in Plaintiff’s favor by limiting Plaintiff to light work. Therefore, any error
in this regard would be harmless. See Hepp, 511 F.3d at 806.
Turning next to Dr. Woiteshek, the fact that he found Plaintiff to have a “40 percent
permanent partial disability” is not particularly relevant. The ALJ was justified in not crediting
that opinion at all to the extent it impinged upon the province of the Commissioner. See Perkins
v. Astrue, 648 F.3d 892, 898 (8th Cir. 2011); House v. Astrue, 400 F.3d 741, 745 (8th Cir. 2007)
(citing Krogmeier, 294 F.3d at 1023). Additionally, Dr. Woiteshek’s opinion was specifically
premised on the fact that Plaintiff’s condition would likely improve with additional treatment.
(Tr. 418) Dr. Woiteshek’s opinions applied only if Plaintiff did not receive the additional
treatment. (Tr. 419)
The ALJ gave ultimately “some weight” to the functional limitations found by Dr.
Woiteshek. (Tr. 22-23) In particular, the ALJ credited Dr. Woiteshek to the extent the
As noted above, the occupational therapists concluded that Plaintiff “display[ed] no
overt functional limiting factors that would prohibit work in her prior job,” and that Plaintiff
could function on a full-time basis at the medium work demand level. (Tr. 396)
limitations were consistent with the RFC the ALJ identified. Given the fact that the ALJ gave
significant weight to Dr. Edwards’ opinion that Plaintiff could work without restrictions, there is
nothing inherently inconsistent with the ALJ’s weighing of Dr. Woiteshek’s opinion regarding
Plaintiff’s functional limitations.
In summary, the ALJ properly considered and weighed the relevant medical source
opinions. Plaintiff’s arguments in this regard can only succeed if one completely ignores Dr.
Edwards’ latter opinion that Plaintiff could return to work without restriction. The ALJ,
however, expressly and properly considered that opinion in determining Plaintiff’s RFC.
Although the ALJ ultimate found Plaintiff to be more restricted than did Dr. Edwards, that
difference did not operate to Plaintiff’s material detriment.
For the foregoing reasons, Plaintiff’s contention that the ALJ erred in formulating her
RFC cannot be sustained. The ALJ’s decision regarding Plaintiff’s RFC is supported by
substantial evidence, and because that decision falls within the reasonable “zone of choice,” it
will not be disturbed. See Buckner, 646 F.3d at 556.
IT IS HEREBY ORDERED that, the decision of the Commissioner is AFFIRMED. A
separate Judgment shall be entered this day.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
United States Magistrate Judge
Dated this 5th day of October , 2016.
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