Durham v. Colvin

Filing 17

MEMORANDUM: For the reasons set forth above, the decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 3/7/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JOHNNY DURHAM,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 1:15 CV 203 DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of the
defendant Acting Commissioner of Social Security denying the application of plaintiff
Johnny Durham for disability insurance benefits and supplemental security income
benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401- 434, 13811385. The parties have consented to the exercise of plenary authority by the undersigned
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth
below, the final decision of the Commissioner is affirmed.

I. BACKGROUND
Plaintiff was born in 1962 and was 51 years old at the time of his hearing. (Tr. 55.)
He filed his applications alleging a June 1, 1997 onset date, later amended to September
30, 2011. (Tr. 54, 136-151.) In his Disability Report, he alleged disability due to asthma,
arthritis in his spine, chronic obstructive pulmonary disease (COPD), sleep apnea, and a

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this action. 42 U.S.C. § 405(g).

learning disorder. (Tr. 208.) His applications were denied initially, and he requested a
hearing before an Administrative Law Judge (ALJ). (Tr. 82-86.)
On April 28, 2014, following a hearing, the ALJ issued a decision concluding that
plaintiff was not disabled under the Act. (Tr. 35-45.) The Appeals Council denied his
request for review. (Tr. 1-6.) Thus, the decision of the ALJ stands as the final decision of
the Commissioner.

II. MEDICAL AND OTHER HISTORY
During 2011 plaintiff was seen on a monthly basis at the Steele Family Rural
Health Clinic (SFRHC) for back pain and other conditions. On August 10, 2011, plaintiff
was seen at SFRHC for back pain, which had improved since an injury, and was
prescribed Norco, for moderate to severe pain. (Tr. at 475.) On September 6, 2011,
plaintiff saw Judith Haggard, a family nurse practitioner (FNP), for acute sinusitis and was
prescribed Vicodin and antibiotics. (Tr. at 404-05.) He was seen again at SFRHC on
September 14, 2011 for an upper respiratory infection. (Tr. at 471-73.)
Plaintiff was seen at SFRHC on October 10 and 14, 2011, for a cough, asthma, and
lower back pain. He was continued on Norco. (Tr. at 469, 473.) He was seen again at
SFRHC on December 14, 2011, and diagnosed with osteoarthritis, asthma, and lower back
pain. (Tr. at 461.)
On January 1, 2012, plaintiff was seen as a walk-in at the emergency room at Twin
Rivers Medical Center for wheezing, chest pain, and congestion. (Tr. at 382-83.) He was
diagnosed with chronic asthmatic bronchitis and prescribed an antibiotic, a steroid inhaler,
and cough and cold medication. (Tr. at 381.)
In 2012, plaintiff was seen on a monthly basis for back pain, asthma, and
degenerative disc disease. He was prescribed Norco. (Tr. at 425-58.) On November 7,
2012, plaintiff saw Burl McKenzie, physician’s assistant (PA), for lower back pain after
reinjuring his back while helping his brother work on a tractor. He reported pain from the
injury for two weeks and had been unable to work. (Tr. at 423.) He was diagnosed with
-2-

lumbago, sciatica, chronic airway obstruction, chronic pain syndrome, osteoarthritis,
asthma, and COPD. He was prescribed Norco, Medrol, a corticosteroid hormone, and
Celebrex. (Tr. at 424-25.) Follow-up two days later indicated that his back pain had
improved and he needed a letter to return to work. (Tr. at 599.)
In a function report dated November 10, 2012, plaintiff reported no difficulty
performing self-care activities. He described fairly normal daily activities, including
preparing meals, watching television, and performing some household chores such as
taking out the trash, doing laundry, mowing the lawn with a riding mower, and checking
the mail. He could drive alone and left his home several times a day. His hobbies
included going for short nature walks, reading magazines, and listening to music. He
visited friends or family on a weekly basis. (Tr. 221-28.)
On November 19, 2012, plaintiff saw Nurse Practitioner Amanda Smallmon for
muscle cramps in the left side of his lower back. He received an injection of Ketorolac
Tromethamine, for short-term treatment of moderate to severe pain, and was prescribed
Ultram, a narcotic-like pain reliever, and ibuprofen. He was instructed to avoid straining
and heavy lifting for the next two weeks. (Tr. at 642-43.) On November 21, 2012,
plaintiff reported his back pain continued. Ms. Smallmon discussed the possibility of the
need for an MRI to evaluate the bulging disc in his back and which plaintiff said he could
not afford. (Tr. at 640.)
On December 7, 2012, plaintiff saw PA McKenzie and was diagnosed with chronic
airway obstruction, chronic pain syndrome, and asthma. He was prescribed Norco and
instructed to return in one month. (Tr. at 597-98.)
On January 7, 2012, plaintiff saw PA McKenzie for chronic back pain and asthma.
He was seen on February 7, 2013, for back pain, lumbago, chronic pain syndrome, and
osteoarthritis. He was treated for an ear infection on March 7, 2013. Plaintiff continued
on Norco. (Tr. at 585, 589, 593.)
On April 9, 2013, plaintiff saw Timothy W. McPherson, D.O. Plaintiff described
his pain as severe enough to cause him to walk with a limp and to cause “difficulty with
-3-

his activities of daily living.” Dr. McPherson observed that plaintiff had a very limited
range of motion in the lumbar spine, difficulty standing from a chair and sitting on a table,
with walking, and that he walked with an obvious limp. He was unable to bend and touch
his toes or do calf raises. (Tr. at 579-81.)
On April 9, 2013, Dr. McPherson completed a Medical Source Statement –
Physical form, stating that plaintiff was not capable of performing sustained work in
several categories on a regular and continuing basis. Dr. McPherson opined that plaintiff
could lift and/or carry frequently less than 5 pounds, lift and/or carry occasionally 10
pounds; stand and/or walk continuously for less than 1 hour, stand and/or walk throughout
an 8 hour day for less than 1 hour; sit continuously without a break for 30 minutes, sit
throughout an 8 hour work day for 2 hours; push and/or pull for an unlimited time. Dr.
McPherson believed that plaintiff could never climb, balance, stoop, or crouch, and that he
could occasionally kneel or crawl. He opined that plaintiff was capable of frequently
reaching, handling, fingering, feeling, seeing, speaking, and hearing. He should avoid any
exposure to extreme cold, dust/fumes, hazards, and heights, avoid moderate exposure to
extreme heat and wetness/humidity, and avoid concentrated exposure to weather and
vibration. Dr. McPherson believed that if plaintiff has pain, he should lie down for thirty
minutes at a time three times during an 8-hour work day to alleviate symptoms. Finally,
Dr. McPherson believed that plaintiff’s use of medication “did not cause a decrease in
concentration, persistence, or pace, or any other limitations.” (Tr. at 522-23.)
On April 24, 2013, Jennifer Lawrence, FNP, diagnosed plaintiff with asthma and
an adjustment disorder with mixed emotional features.

Plaintiff felt depressed and

anxious due to stress. He could not find a job, had been denied disability, and financial
concerns were “getting the best of him.” (Tr. at 634.) He was prescribed a steroid inhaler
and referred to a psychiatrist for consultation. (Tr. at 634-36.)
Plaintiff saw Dr. McPherson in May and June 2013 for chronic pain, low back
pain, and difficulty swallowing.

Dr. McPherson assessed thyroid enlargement, an

-4-

increased risk of diabetes, and a high probability of obstructive sleep apnea. (Tr. at 56978.)
On August 22, 2013, plaintiff underwent an initial psychiatric evaluation with Erica
Smith, M.D., a psychiatrist. He had lost his job at Wal-Mart seven months earlier and
thought his chronic back pain and asthma had played a role. He reported depressed mood,
decreased energy level, and change in appetite. His anxiety level was somewhat higher
than it is normally. He was taking Paxil, an antidepressant, prescribed by Ms. Lawrence,
but did not really have a response to it and wanted to try a similar medication to help with
mood and anxiety. (Tr. at 622.)
Plaintiff’s mental examination showed he was not in any acute distress. He had
good concentration, focus, and attention. He reported his mood was “okay.” Dr. Smith
noted his history of chronic back pain and asthma.

She diagnosed depression, not

otherwise specified, and chronic back pain and asthma. Dr. Smith prescribed Zoloft, an
antidepressant, and instructed plaintiff to return in six weeks. (Tr. at 624.)
Plaintiff saw Dr. Smith again on October 1, 2013. He had stopped taking Zoloft
because it caused diarrhea and did not help his mood. He continued to experience
depressive symptoms, including decreased energy and appetite, and depressed moods. Dr.
Smith discontinued the Zoloft and prescribed Viibryd, another antidepressant. (Tr. at 61920.)
Plaintiff saw Dr. Smith again on October 3, 2013. He had stopped taking Viibryd
because it caused dizziness, and they discussed trying Lexapro instead. His symptoms
were the same. Dr. Smith discontinued Viibryd and started him on Lexapro. (Tr. at 61617.)
Plaintiff saw Dr. Smith again on October 28, 2013 and asked him to increase his
Lexapro, which had helped, but was not as effective now. Dr. Smith increased his
Lexapro dose from 10 to 20 mg. (Tr. at 613-15.) On December 4, 2013, plaintiff reported
to Dr. Smith that he was “still kind of down” and did not have enough energy. Dr. Smith
continued Lexapro and started Wellbutrin. (Tr. at 612.)
-5-

Plaintiff saw Dr. Smith on January 6, 2014, reporting that the Wellbutrin had
“helped some” but its effectiveness had decreased over time. He still had depressed
moods a few days per week. Dr. Smith increased his Wellbutrin and continued him on
Lexapro. (Tr. at 607-09.) On February 3, 2014, plaintiff reported he still had some days
of depressed moods and irritability. Dr. Smith continued his Wellbutrin and Lexapro and
started him on Abilify, an antipsychotic. (Tr. 604.)
In July 2013, plaintiff saw FNP Lawrence for follow-up on his asthma and was
continued on his medications. (Tr. at 631-33.) Plaintiff saw Dr. McPherson in August
and September 2013 for chronic pain in his hip and knee. (Tr. at 555-60.)
Plaintiff saw Dr. McPherson on November 19, 2013, describing back pain radiating
to his legs. He said that the pain was sharp, that he had suffered from pain for years, and
that it was interfering with his sleep. His pain was 7 on a 10-point scale. Dr. McPherson
diagnosed chronic pain syndrome, disc degeneration, asthma, and osteoarthritis. (Tr. at
547-48.) He saw Dr. McPherson again on December 17, 2013. (Tr. at 542.)
On February 5, 2014, plaintiff injured his lower back falling on ice. He saw
Physician’s Assistant Allison Jowers.

Plaintiff described worsening difficulty with

swallowing and severe and worsening pain in his shoulder and lower back. He was
diagnosed with (1) dysphagia or difficulty swallowing; (2) achalasia, a disease of the
esophagus that prevents relaxation of the lower esophagus; and (3) hypothyroidism or
underactive thyroid. (Tr. at 529-32.)
In follow-up with Dr. McPherson on February 18, plaintiff reported severe and
worsening pain in his shoulder and lower back. Dr. McPherson diagnosed chronic pain
syndrome and degeneration of lumbosacral intervertebral disc. (Tr. at 526-27.) On April
9, 2014, he underwent a procedure to examine the lining of his esophagus and stomach
that indicated that plaintiff had esophageal stricture and a hiatal hernia. He was instructed
to increase Prilosec, a heartburn medication. (Tr. at 644.)

-6-

On July 8, 2015, an MRI of plaintiff’s lumbar spine revealed modest degenerative
disc disease at multiple levels, modest loss of disc height at some levels, mild narrowing
of the central canal, and mild foraminal stenosis or narrowing. (Tr. at 12-13.)

ALJ Hearing
On April 22, 2014, plaintiff appeared and testified to the following at a video
hearing before an ALJ. (Tr. 51-67.) He completed the twelfth grade. He lives in a house
with his wife. He last worked in January 2013 as a custodian at Walmart. He is no longer
able to work due to his lower back problems, specifically, bulging discs in his lower back,
which have worsened a bit over the years. His pain worsens if he does a lot of walking or
stands in one place at a time. He can walk 50 feet and stand for about one half hour
before needing to take a break. Hydrocodone provides pain management. He needs to lie
down on his side for half an hour, three to four times per day. (Tr. 55-59.)
He has been diagnosed with COPD. He uses a cane for pain on his right side,
although it was not prescribed by his doctor. He has also been diagnosed with depression
and takes Wellbutrin which helps some. He has three to four bad days per week. He can
do “very little” in the way of chores around the house because it hurts his lower back. He
is able to mow the lawn with a riding mower. His wife does the grocery shopping and he
sometimes helps bring the groceries in. His doctor has instructed him to not lift anything
more than 25 pounds. He does not get out much socially but goes to church sometimes
and visits his relatives. (Tr. 59-64.)
Vocational Expert (VE) Janice Hastert testified to a hypothetical individual who
was the same age and educational background as plaintiff. The individual retained the
capacity to occasionally lift 20 pounds and frequently lift 10 pounds. The individual
could walk or stand 6 hours in an 8-hour day and sit for 6 hours in an 8-hour day. The
individual could occasionally climb and stoop, should avoid prolonged exposure to
chemicals, dust, fumes, and noxious odors, and would be limited to jobs that do not
-7-

demand attention to detail or complicated job task instructions. The VE testified that the
hypothetical individual could not perform plaintiff’s past relevant work but could perform
other work that exists in the national economy, including injection mold machine tender,
bench assembler, and dessert cup machine feeder. The VE testified that if the individual
was limited to jobs that would allow him to lie down for thirty minutes at a time three to
four times per week, no competitive jobs would be available. (Tr. 64-66.)

III. DECISION OF THE ALJ
On April 28, 2014, the ALJ issued a decision finding that plaintiff was not disabled
under the Act. (Tr. 35-45.) The ALJ found, among other things, that plaintiff had severe
impairments: “disorder of the back and depression.” (Tr. 37.) However, the ALJ found
that he did not have an impairment or combination of impairments listed in or medically
equal to one contained in 20 C.F.R. part 404, subpart P, appendix 1. (Tr. 38.)
The ALJ determined that plaintiff retained the residual functional capacity (RFC)
to perform light work as defined by the Commissioner’s regulations. More specifically,
he found that plaintiff had the ability to lift and carry 20 pounds occasionally and 10
pounds frequently; walk or stand for 6 hours during an 8-hour workday; and sit for 6 hours
during an 8-hour workday. (Tr. 40.) Plaintiff could occasionally climb and stoop; needed
to avoid prolonged exposure to chemicals, dusts, fumes, and noxious odors; and,
secondary to reported chronic pain and affective/mood disorder, was limited to jobs that
do not demand attention to details or complicated job tasks or instructions. (Tr. 40.)
Based on this RFC, the ALJ concluded that plaintiff was unable to perform his past
relevant work. The ALJ found that plaintiff’s impairments would not preclude him from
performing work that exists in significant numbers in the national economy, including
work as an injection mold machine tender, bench assembler, and dessert cup machine
feeder. Consequently, the ALJ found that plaintiff was not disabled under the Act. (Tr.
44-45).

-8-

The ALJ gave “minimal” weight to the medical source statement completed by
treating source Dr. McPherson because it was not supported by the weight of the medical
evidence. (Tr. 42-43.)

V. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d
935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner's decision. Id. 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 be entitled to disability benefits, a claimant must prove he is unable to perform
any substantial gainful activity due to a medically determinable physical or mental
impairment that would either result in death or which has lasted or could be expected to
last for at least twelve continuous months.

42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A),

1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework is used to
determine whether an individual is disabled. 20 C.F.R. § 416.920(a)(4); see also Bowen
v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing five-step process); Pate-Fires, 564
F.3d at 942 (same).
Steps One through Three require the claimant to prove: (1) he is not currently
engaged in substantial gainful activity; (2) he suffers from a severe impairment; and (3)
his condition meets or equals a listed impairment. 20 C.F.R. § 416.920(a)(4)(i)-(iii). If
the claimant does not suffer from a listed impairment or its equivalent, the
-9-

Commissioner’s analysis proceeds to Steps Four and Five.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform his past
relevant work (PRW).

Id. § 416.920(a)(4)(iv).

The claimant bears the burden of

demonstrating he is no longer able to return to his PRW. Pate-Fires, 564 F.3d at 942. If
the Commissioner determines the claimant cannot return to PRW, the burden shifts to the
Commissioner at Step Five to show the claimant retains the RFC to perform other work
that exists in significant numbers in the national economy.

Id.; 20 C.F.R. §

416.920(a)(4)(v).

V. DISCUSSION
Plaintiff argues the ALJ erred in failing to give substantial weight to Dr.
McPherson’s opinions and in determining his residual functional capacity. This court
disagrees.

Treating Physician Timothy W. McPherson, D.O.
In his medical source statement dated April 9, 2013, Dr. McPherson checked boxes
that indicated plaintiff could lift and/or carry less than 5 pounds frequently and 10 pounds
occasionally, stand and/or walk for 15 minutes continuously and less than 1 hour total
during an 8-hour workday, and sit continuously for 30 minutes and for a total of 2 hours
over the course of an 8-hour workday. He indicated plaintiff could never climb, balance,
stoop, or crouch and only occasionally kneel and crawl. Plaintiff must avoid any exposure
to extreme cold, dust/fumes, hazards, and heights; moderate exposure to extreme heat and
wetness/humidity; and concentrated exposure to weather and vibration. Dr. McPherson
also indicated plaintiff needed to lie down for 30 minutes three times over the course of a
workday. (Tr. 522-23.)
The opinion of a treating physician is controlling if it is well supported by
medically acceptable diagnostic techniques and is not inconsistent with the other
- 10 -

substantial evidence. Prosch v. Astrue, 201 F.3d 1010, 1012-13 (8th Cir. 2012) (mirroring
language of 20 C.F.R. §§ 404.1527 and 416.927). The treating source’s opinion is not
inherently entitled to controlling weight, however. Blackburn v. Colvin, 761 F.3d 853,
860 (8th Cir. 2000). Even if the opinion is not entitled to controlling weight, it should not
ordinarily be disregarded and is entitled to substantial weight. Singh v. Apfel, 222 F.3d
448, 452 (8th Cir. 2000). However, a treating physician’s opinion may be disregarded in
favor of other opinions if it does not find support in the record. See Casey v. Astrue, 503
F.3d 687, 692 (8th Cir. 2007).
In assessing a medical opinion, an ALJ may consider factors including the length of
the treatment relationship and the frequency of examination, the nature and extent of
treatment relationship, supportability with relevant medical evidence, consistency between
the opinion and the record as a whole, the physician’s status as a specialist, and any other
relevant factors brought to the attention of the ALJ. See 20 C.F.R. §§ 404.1527(c)(1)-(6);
416.927(c)(1)-(6); Owens v. Astrue, 551 F.3d 792, 800 (8th Cir. 2008) (holding that when
a treating physician’s opinion is not entitled to controlling weight, the ALJ must consider
several factors when assessing the weight to give it). Although an ALJ is not required to
discuss all the factors in determining what weight to give a physician’s opinion, the ALJ
must explain the weight given the opinion and give “good reasons” for doing so. See 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
The ALJ gave good reasons here. The ALJ first noted that Dr. McPherson’s
medical source statement was inconsistent with the medical evidence as a whole. (Tr. 43.)
More than twenty examinations throughout the relevant period demonstrated essentially
normal medical findings relating to plaintiff’s spine and extremities, including normal
muscle/motor strength, intact sensory function, normal reflexes, and a normal gait. (Tr.
399, 402, 432, 444, 448, 453, 457, 465, 469, 473, 548, 552, 563, 571, 585, 597, 601, 604,
607, 610, 613, 616, 619, 629, 632, 635, 641, 643.) The examinations that revealed
positive findings were largely subjective in nature, with plaintiff reporting only tenderness
to palpation or limited range of motion secondary to pain. (Tr. 428, 440, 461, 527, 531,
- 11 -

535-36, 540, 544, 567, 581, 593.) On those occasions, his motor strength and sensation
were intact and straight leg raising was generally negative. (Tr. 428, 440, 461, 527, 531,
535-36, 540, 544, 581, 593.) The normal to mild findings are inconsistent with Dr.
McPherson’s opinion suggesting that plaintiff could not perform even sedentary activity
and would have to spend a substantial portion of the day lying down. (Tr. 43.) See 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.”)
Dr. McPherson’s Medical Source Statement was also inconsistent with plaintiff’s
admitted daily activities. (Tr. 43.) Dr. McPherson indicated that plaintiff could never lift
more than 10 pounds and could frequently lift less than 5 pounds. The ALJ, however,
noted that plaintiff was working 30 hours a week during the relevant period and told the
agency that his work involved frequently lifting 25 pounds and occasionally lifting up to
50 pounds. (Tr. 43, 233, 522.) The job also required standing six hours a day, while Dr.
McPherson indicated plaintiff could only stand for less than an hour over the course of a
workday. (Tr. 233, 522.) See Turpin v. Colvin, 750 F.3d 989, 994 (8th Cir. 2014) (ALJ
may discredit a doctor’s opinion where the doctor states that plaintiff has more physical
limitations than he actually exhibits in his daily living).
The ALJ also noted that the only medical record documenting significant
functional restrictions was dated April 9, 2013, the same day plaintiff saw Dr. McPherson
to complete paperwork in support of his claim for disability. (Tr. 43, 579-82.) During
that exam, Dr. McPherson indicated that plaintiff had difficulty performing daily
activities. (Tr. 579.) However, subsequent notes from Dr. McPherson and others indicate
that plaintiff’s performance of daily activities was normal. (Tr. 555, 558, 574, 577.) At
the April 9 exam, Dr. McPherson also indicated plaintiff had difficulty standing from a
chair and walked with an “obvious” limp. (Tr. 581.) Those findings are contradicted by
observations of a normal gait during his other appointments. (Tr. 424, 428, 432, 436, 440,
444, 448, 453,457, 465, 469, 473, 527, 531, 548, 552, 563, 567, 571, 585, 589, 593, 597,
601,604, 607, 610, 613, 616, 619.)
- 12 -

The ALJ further noted that Dr. McPherson’s opinion was provided on a checklist
form and did not include an explanation or basis of support for the limitations described
therein. (Tr. 43.) See Cline v. Colvin, 771 F.3d 1098, 1103-04 (8th Cir. 2014) (while a
checklist evaluation can be a source of objective medical evidence, the ALJ may discount
the opinion where the limitations listed on the form stand alone, and were never
mentioned in the physician's treatment records or supported by any objective testing or
reasoning). For all of these reasons, the ALJ properly afforded little weight to Dr.
McPherson’s medical source statement. Therefore,

the ALJ’s use of Dr. McPherson’s

opinion was supported by substantial evidence in the record.

Residual Functional Capacity (RFC)
Plaintiff next argues that even if the ALJ properly weighed Dr. McPherson’s
opinion, he failed to provide medical evidence to support his RFC finding. This court
disagrees.
RFC is a medical question and the ALJ’s determination of RFC must be supported
by substantial evidence in the record. Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.
2001); Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001); Singh v. Apfel, 222 F.3d 448,
451 (8th Cir. 2000). RFC is what a claimant can do despite his limitations, and it must be
determined on the basis of all relevant evidence, including medical records, physician’s
opinions, and a claimant’s description of his limitations. Donahoo v. Apfel, 241 F.3d
1033, 1039 (8th Cir. 2001); 20 C.F.R. §§ 404.1545, 416.945(a). While the ALJ is not
restricted to medical evidence alone in evaluating RFC, the ALJ is required to consider at
least some evidence from a medical professional. Lauer, 245 F.3d at 704. An “RFC
assessment must include a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical
evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184, at *7
(1996).

- 13 -

In this case, the ALJ determined that plaintiff retained the residual functional
capacity to lift and carry 20 pounds occasionally and 10 pounds frequently; walk or stand
for 6 hours during an 8-hour workday; and sit for 6 hours during an 8-hour workday. (Tr.
40.) Plaintiff could occasionally climb and stoop; needed to avoid prolonged exposure to
chemicals, dusts, fumes, and noxious odors; and, based on his reported chronic pain and
affective/mood disorder, was limited to jobs that do not demand attention to details or
complicated job tasks or instructions. (Tr. 40.)
Plaintiff argues the ALJ erred in giving little weight to Dr. McPherson’s opinion,
the only opinion of record addressing physical limitations.

He argues the ALJ

summarized the evidence, discounted plaintiff’s statements, and arbitrarily concluded that
plaintiff had the ability to perform a limited range of light work. He argues that the ALJ’s
RFC assessment was flawed because without Dr. McPherson’s opinion and plaintiff’s
statements, there is no record evidence to explain how his physical impairments impacted
his ability to function in a work setting. He argues that the ALJ’s finding that back pain
and use of narcotic medication would “reasonably limit him to light work” is insufficient
as a medical basis to support the RFC. The Commissioner contends that specific medical
opinion evidence is not required to support an RFC determination.
The Eighth Circuit has considered whether the “some medical evidence” that is
required to support an RFC finding must include a medical opinion that specifically
addresses the claimant’s work-related limitations. See Flynn v. Astrue, 513 F.3d 788, 793
(8th Cir. 2008) (rejecting argument that ALJ improperly concluded “on her own” that the
claimant could lift 20 pounds occasionally and 10 pounds frequently because the record
did not include supporting medical opinion; instead finding physicians’ observations that
claimant had normal muscle strength and mobility constituted “substantial medical
evidence” supporting the RFC finding). Although an RFC must be based upon “some
medical evidence,” there is no requirement that the RFC align with, or be based upon, a
specific medical opinion of record. See Martise v. Astrue, 641 F.3d 909, 927 (8th Cir.
2011) (observing that ALJ is not required to rely entirely on a particular physician's
- 14 -

opinion or choose between the opinions of any of the claimant's physicians); Halverson v.
Astrue, 600 F.3d 922, 933–34 (8th Cir. 2010) (holding that medical opinion evidence was
not necessary to support the RFC where the ALJ considered the medical records, the
claimant's statements, and other evidence in making the RFC determination); Cox v.
Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (even though RFC assessment draws from
medical sources for support, it is ultimately an administrative determination reserved to
the Commissioner). The ALJ is required to rely upon medical evidence, but not medical
opinion evidence. See Martise, 641 F.3d at 927.
The ALJ in this case properly relied on “some medical evidence” to support his
RFC finding. The ALJ considered the record evidence as a whole, which as discussed
above, revealed very few positive findings.

(Tr. at 41.)

Despite his allegations of

disabling back pain, plaintiff’s motor and sensory functioning was consistently intact. (Tr.
41, 399, 402, 432, 444, 448, 453, 457, 465, 469, 473, 548, 552, 563, 571, 585, 597, 601,
604, 607, 610, 613, 616, 619, 629, 632, 635, 641, 643.) In addition, despite his allegations
of difficulty walking, the record evidence documented a normal gait. (Tr. 424, 428, 432,
436, 440, 444, 448, 453,457, 465, 469, 473, 527, 531, 548, 552, 563, 567, 571, 585, 589,
593, 597, 601,604, 607, 610, 613, 616, 619.) Straight leg raising, used to determine
whether a patient has a herniated disk, was also negative on all but two occasions,
indicating that plaintiff did not have long-term radiculopathy or nerve root symptoms.
(Tr. 41, 424, 428, 461, 581, 589, 593, 601.) Despite frequent treatment, there was no
record evidence of objective studies such as x-rays showing any evidence of severe
degenerative changes. The ALJ lawfully noted that the record evidence did not document
that plaintiff’s impairments resulted in any persistent motor, sensory, reflex, or strength
deficits. (Tr. 41.) The ALJ nevertheless considered plaintiff’s complaints of pain and use
of pain medication and limited his RFC to a restricted range of light exertional activity.
(Tr. 40-41.)
The ALJ also properly considered plaintiff’s subjective reports in determining his
RFC in accordance with Social Security Ruling (SSR) 96-8p and 20 C.F.R. §§ 404.1529
- 15 -

and 416.929. (Tr. 41-42.) The ALJ noted that there were a number of inconsistencies
between plaintiff’s alleged limitations and the record evidence. The ALJ noted that
plaintiff alleged disability beginning on September 30, 2011. However, there was no
record evidence indicating a new impairment or worsening of any preexisting condition at
that time. See Turpin v. Colvin, 750 F.3d 989, 994 (8th Cir. 2014) (ALJ may discount
complaints of pain if they are inconsistent with the evidence as a whole). On September
14, 2011, shortly before his alleged onset date, plaintiff was seen for a cough and
congestion and medication management. (Tr. 471.) At his next appointment on October
14, 2011, two weeks after his alleged onset date, plaintiff again sought treatment for a
runny nose and skin peeling on his right thumb, not for disabling back pain. (Tr. 467.)
Additionally, plaintiff initially alleged a June 1, 1997 onset date even though he was
employed for many years thereafter. (Tr. 35.) The ALJ properly discounted plaintiff’s
subjective reports based on inherent inconsistencies in the record. See Eichelberger v.
Barnhart, 390 F.3d 584, 589 (8th Cir. 2004) (an ALJ may disbelieve a claimant’s
subjective reports of pain because of inherent inconsistencies or other circumstances).
The ALJ also noted that despite plaintiff’s reports of disabling back pain since his
alleged onset date, plaintiff worked as a janitor 25 to 30 hours per week from February
2012 to January 2013, and while performing this work, plaintiff reported lifting up to 50
pounds and frequently lifting 25 pounds, activity that exceeded Dr. McPherson’s medical
source statement and the ALJ’s RFC determination. (Tr. 42, 56, 232-33, 254.) See
Medhaug v. Astrue, 578 F.3d 805, 816 (8th Cir. 2009) (working generally demonstrates an
ability to perform substantial gainful activity).

Therefore, plaintiff’s part-time work

during the relevant period weighs against his claim of disability. Moreover, his level of
activity while working was also inconsistent with his subjective reports and supported the
ALJ’s determination that he retained the ability to perform light work.

These

inconsistencies suggested his symptoms were not as limiting as he alleged.
The ALJ also noted that plaintiff’s appearance and demeanor were inconsistent
with his reported limitations. (Tr. 43.) Despite his reported inability to focus for more
- 16 -

than one minute, the ALJ did not observe that plaintiff had attention difficulties at his
administrative hearing. (Tr. 42.) Plaintiff also used a cane at the hearing even though it
was not prescribed by a medical provider and plaintiff was regularly reported as not
needing an assistive device. (Tr. 42, 59-60, 506, 523, 563, 585, 597, 601.) Cf. Johnson v.
Apfel, 240 F.3d 1145, 1147-48 (8th Cir. 2001) (ALJ’s personal observations of claimant’s
demeanor at administrative hearing is proper in making credibility determinations).
Finally, the ALJ noted that plaintiff’s daily activities were inconsistent with his
subjective reports. (Tr. 42.) In a function report dated November 10, 2012, plaintiff
reported no difficulty performing self-care activities. He described fairly normal daily
activities, including preparing meals, watching television, and performing some household
chores such as taking out the trash, doing laundry, mowing the lawn with a riding mower,
and checking the mail. He could drive alone and left his home several times a day. His
hobbies included going for short nature walks, reading magazines, and listening to music.
He visited friends or family on a weekly basis. (Tr. 221-28.) While a claimant’s ability to
engage in personal activities such as chores and hobbies do not preclude a find of
disability, the extent of plaintiff’s daily activities in this case and the corresponding
medical evidence, was properly considered by the ALJ in discrediting the opinion of
plaintiff’s treating physician. See Milam v. Colvin, 794 F.3d 978, 984 (8th Cir. 2015)
Plaintiff argues this case is similar to Gordon v. Astrue, 801 F. Supp.2d 846 (E.D.
Mo. 2011). However, in Gordon the ALJ failed to either credit two medical opinions or
offer grounds for discounting the opinions. See id. at 859-60. This case is distinguishable
because the ALJ here clearly set forth his reasons, supported by the record, for discounting
Dr. McPherson’s medical source statement. (Tr. 42-43.) In Gordon the ALJ also failed
to evaluate the claimant’s subjective complaints.

Id. at 862.

Again, the ALJ here

delineated his reasons for discounting plaintiff’s subjective reports. (Tr. 41-42.)
This court concludes the ALJ lawfully determined plaintiff retained the RFC to
perform a limited range of light work. The ALJ’s RFC determination was supported by

- 17 -

substantial evidence despite the fact that it did not rely upon any medical opinion
evidence.

VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social
Security is affirmed. An appropriate Judgment Order is issued herewith.

S/ David D. Noce
f
UNITED STATES MAGISTRATE JUDGE

Signed on March 7, 2017.

- 18 -