Kinder v. Colvin
MEMORANDUM AND ORDER...Affirming the decision of the ALJ. Accordingly, Judgment will be entered separately in favor of Defendant inaccordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 3/30/17. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
) Case No. 1:16 CV 7 ACL
MEMORANDUM AND ORDER
Plaintiff Mark Kinder brings this action pursuant to 42 U.S.C. ' 405(g), seeking judicial
review of the Social Security Administration Commissioner’s denial of his application for
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act.
An Administrative Law Judge (“ALJ”) found that, despite Kinder’s multiple severe
impairments, he was not disabled as he had the residual functional capacity (“RFC”) to perform
jobs that exist in significant numbers in the national economy.
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is
presented in the parties’ briefs and is repeated here only to the extent necessary.
For the reasons discussed below, the decision of the Commissioner will be affirmed.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
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I. Procedural History
Kinder filed his application for SSI on August 19, 2012. (Tr. 148-49.) He alleged that he
became disabled on June 19, 2012, due to neck and back problems, anxiety, depression, possible
high blood pressure, right shoulder pain, numbness in his left leg and feet, general weakness in his
lower body, and “extreme pain all over.” (Tr. 148-49, 243.) Kinder’s claim was denied initially.
(Tr. 162-65.) Following an administrative hearing, Kinder’s claim was denied in a written
opinion by an ALJ, dated September 12, 2014. (Tr. 13-21.) Kinder then filed a request for
review of the ALJ’s decision with the Appeals Council of the Social Security Administration
(SSA), which was denied on November 18, 2015. (Tr. 9, 1-5.) Thus, the decision of the ALJ
stands as the final decision of the Commissioner. See 20 C.F.R. '' 404.981, 416.1481.
In the instant action, Kinder argues that the ALJ erred “in failing to provide an RFC
supported by substantial evidence in that the ALJ did not properly weigh the opinion of the treating
nurse practitioner and did not perform an adequate credibility analysis before discounting Kinder’s
reports of limitations.” (Doc. 17 at 8.)
II. The ALJ=s Determination
The ALJ found that Kinder had not engaged in substantial gainful activity since his
application date of August 17, 2012. (Tr. 15.)
In addition, the ALJ concluded that Kinder had the following severe impairments:
degenerative disc disease of the cervical and lumbar spine, anxiety, and migraine headaches. Id.
The ALJ found that Kinder did not have an impairment or combination of impairments that meets
or equals in severity the requirements of any impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id.
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As to Kinder’s RFC, the ALJ stated:
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity (RFC) to perform light
work as defined in 20 CFR 416.967(b) except he can occasionally
climb ramps and stairs, and crouch. He should never climb
ladders, ropes, or scaffolds, kneel or crawl. He should avoid
concentrated exposure to vibration and hazards such as unprotected
heights and dangerous machinery. He should avoid moderate
exposure to irritants such as fumes, odors, and strong chemicals and
fresh paint. He is capable of performing simple, routine tasks in a
low stress work environment, which is defined as where there is
only occasional contact with supervisors, co-workers, and the
general public, and only occasional workplace changes. He should
be able to sit or stand for 1-3 minutes every hour while remaining at
In determining Kinder’s RFC, the ALJ found that Kinder’s allegations regarding his
limitations were not entirely credible. (Tr. 18.) The ALJ also discredited the opinion of
Kinder’s treating nurse practitioner Kathleen Arnzen, FNP. (Tr. 19.)
The ALJ found that Kinder was unable to perform any past relevant work. (Tr. 20.) The
ALJ noted that a vocational expert testified that Kinder could perform jobs existing in significant
numbers in the national economy, such as electrical accessory assembler and bench assembler.
(Tr. 21.) The ALJ therefore concluded that Kinder has not been under a disability, as defined in
the Social Security Act, since August 17, 2012. Id.
The ALJ’s final decision reads as follows:
Based on the application for supplemental security income filed on
August 17, 2012, the claimant is not disabled under section
1614(a)(3)(A) of the Social Security Act.
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III. Applicable Law
III.A. Standard of Review
The decision of the Commissioner must be affirmed if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). Substantial evidence is less than a
preponderance of the evidence, but enough that a reasonable person would find it adequate to
support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial
evidence test,” however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal
quotation marks and citation omitted). “Substantial evidence on the record as a whole . . .
requires a more scrutinizing analysis.” Id. (internal quotation marks and citations omitted).
To determine whether the Commissioner’s decision is supported by substantial evidence
on the record as a whole, the Court must review the entire administrative record and consider:
The credibility findings made by the ALJ.
The plaintiff’s vocational factors.
The medical evidence from treating and consulting physicians.
The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.
Any corroboration by third parties of the plaintiff’s
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
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Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (internal
citations omitted). The Court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999). However, even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner’s findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also have supported an
opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted). See also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th
Cir. 2003). 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).
III.B. Determination of Disability
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 that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
has a disability when 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 significant numbers either in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
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To determine whether a claimant has a disability within the meaning of the Social Security
Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see “whether the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343 F.3d 602,
605 (8th Cir. 2003). “An 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, 500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to
do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work
setting. Id. § 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291
(1987). “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 her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation
Third, if the claimant has a severe impairment, then the Commissioner will consider the
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medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled, regardless
of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d); see Kelley
v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of
the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or her physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. § 416.945(a)(3).
The Commissioner also will consider certain non-medical evidence and other evidence listed in
the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the
claimant is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is other
work that the claimant can do, given the claimant’s RFC as determined at Step Four, and his or her
age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir.
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2000). The Commissioner must prove not only that the claimant’s RFC will allow the claimant to
make an adjustment to other work, but also that the other work exists in significant numbers in the
national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find the claimant is not disabled. If
the claimant cannot make an adjustment to other work, then the Commissioner will find that the
claimant is disabled. 20 C.F.R. §416.920(a)(4)(v). At Step Five, even though the burden of
production shifts to the Commissioner, the burden of persuasion to prove disability remains on the
claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
The evaluation process for mental impairments is set forth in 20 C.F.R. '' 404.1520a,
416.920a. The first step requires the Commissioner to Arecord the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment@ in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. '' 404.1520a(b)(1),
416.920a(b)(1). If it is determined that a mental impairment exists, the Commissioner must
indicate whether medical findings Aespecially relevant to the ability to work are present or absent.@
20 C.F.R. '' 404.1520a(b)(2), 416.920a(b)(2). The Commissioner must then rate the degree of
functional loss resulting from the impairments in four areas deemed essential to work: activities
of daily living, social functioning, concentration, and persistence or pace. See 20 C.F.R. ''
404.1520a(b)(3), 416.920a(b)(3). Functional loss is rated on a scale that ranges from no
limitation to a level of severity which is incompatible with the ability to perform work-related
activities. See id. Next, the Commissioner must determine the severity of the impairment based
on those ratings. See 20 C.F.R. '' 404.1520a(c), 416.920a(c). If the impairment is severe, the
Commissioner must determine if it meets or equals a listed mental disorder. See 20 C.F.R. ''
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404.1520a(c)(2), 416.920a(c)(2). This is completed by comparing the presence of medical
findings and the rating of functional loss against the paragraph A and B criteria of the Listing of the
appropriate mental disorders. See id. If there is a severe impairment, but the impairment does
not meet or equal the listings, then the Commissioner must prepare an RFC assessment. See 20
C.F.R. '' 404.1520a(c)(3), 416.920a(c)(3).
Kinder argues that the RFC formulated by the ALJ is not supported by substantial evidence
because the ALJ did not properly consider the opinion of treating nurse practitioner Ms. Arnzen,
and failed to properly consider Kinder’s credibility. The undersigned will discuss these claims in
On December 30, 2013, Ms. Arnzen provided two opinions—a Medical Source
Statement-Physical (“Physical MSS”) and a Medical Source Statement-Mental (“Mental MSS”).
In the Physical MSS, Ms. Arnzen expressed the opinion that Kinder could lift or carry less than
five pounds; could stand or walk continuously for fifteen minutes, and could stand or walk a total
of less than one hour in an eight-hour day; could sit continuously for fifteen minutes, and could sit
a total of less than one hour in an eight-hour day; could push or pull a limited amount; could never
climb, balance, stoop, kneel, crouch, or crawl; could occasionally reach, finger, and see; should
avoid any exposure to extreme cold, weather, wetness or humidity, dust or fumes, vibration,
hazards, and heights; and should avoid moderate exposure to extreme heat. (Tr. 388-89.) She
also found that Kinder would need to lie down every fifteen minutes for ten to fifteen minutes
during an eight-hour work day to alleviate his symptoms. (Tr. 389.)
In her Mental MSS, Ms. Arnzen found that Kinder was extremely limited in his ability to
maintain attention and concentration for extended periods, perform activities within a schedule
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and maintain regular attendance; work in coordination with or proximity to others without being
distracted by them; complete a normal workday and workweek without interruption from
psychologically based symptoms and perform at a consistence pace without an unreasonable
number and length of rest periods; interact appropriately with the general public, accept
instructions and respond appropriately to criticism from supervisors, get along with coworkers or
peers without distracting them or exhibiting behavioral extremes, respond appropriately to
changes in the work setting, be aware of normal hazards and take appropriate precautions, and
travel in unfamiliar places or use public transportation. (Tr. 391-92.) She indicated that Kinder
was markedly limited in his ability to understand and remember detailed instructions, carry out
detailed instructions, sustain an ordinary routine without special supervision, ask simple questions
or request assistance, maintain socially appropriate behavior and adhere to basic standards of
neatness and cleanliness, and set realistic goals or make plans independently of others. Id.
Finally, Ms. Arnzen found that Kinder was moderately limited in his ability to remember locations
and work-like procedures, understand and remember very short and simple instructions, carry out
very short and simple instructions, and make simple work related decisions. (Tr. 391.)
The ALJ addressed Ms. Arnzen’s opinions as follows:
She may be sympathetic to the claimant (see Hofslien v. JoAnne Barnhart, 439
F.3d. 375, 7th Cir 2006), but that does not change the fact that her conclusions are
not linked to medical evidence; she builds no evidentiary bridge between her
medical findings (as opposed to simply a diagnosis) and a particular work related
limitation, and her conclusions are not supported by the actual medical findings of
mostly normal strength, sensory, etc. with only mild to moderate medical findings
(subjective complaints of pain, diminished range of motion and tenderness in the
neck and lumbar spine); as a result, the claimant has not met his burden of
demonstrating he would be unable to perform various mental and physical work
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The Social Security Administration separates information sources into two main groups:
“acceptable medical sources” and “other sources.” It then divides “other sources” into two
groups: “medical sources” and “non-medical sources.” “Acceptable medical sources” include
licensed physicians (medical or osteopathic doctors) and licensed or certified psychologists.
According to Social Security regulations, there are three major distinctions between acceptable
medical sources and the others: (1) only acceptable medical sources can provide evidence to
establish the existence of a medically determinable impairment, (2) only acceptable medical
sources can provide medical opinions, and (3) only acceptable medical sources can be considered
treating sources, Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007) (emphasis in original) (internal
citations omitted). “Other sources” include nurse practitioners, physician assistants, licensed
clinical social workers, naturopaths, chiropractors, audiologists, and therapists.” 20 C.F.R. §§
404.1513(d)(1), 416.913(d). “Information from these other sources cannot establish the existence
of a medically determinable impairment. Instead, there must be evidence from an “acceptable
medical source” for this purpose.” SSR 06-03P, 2006 WL 2329939. “[I]nformation from such
other sources, [however], may be based on special knowledge of the individual and may provide
insight into the severity of the impairment(s) and how it affects the individual's ability to function.”
Id.; 20 C.F.R. §§ 404.1513(d), 416.913(d).
In this case, the ALJ considered Ms. Arnzen’s opinions, but accorded them little weight
because she found that the extreme physical and mental limitations were not explained and were
inconsistent with the medical evidence. (Tr. 20.) These findings are supported by the record.
Ms. Arnzen saw Kinder approximately monthly from April 2013 through May 2014. (Tr.
396-422.) On Kinder’s first visit in April 2013, his chief complaints were high blood pressure,
anxiety, and smoking cessation. (Tr. 421.) He also complained of arthritis in his neck. Kinder
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reported that he had always been anxious, he does not like large crowds, and he avoids going to
places like Wal-Mart. Id. Upon examination, Ms. Arnzen noted tightness in the paraspinal
muscles in the cervical spine, with no sensory or motor deficits. (Tr. 422.) She diagnosed
Kinder with tobacco use disorder, generalized anxiety disorder, and cervicalgia. Id. Ms. Arnzen
prescribed Buspar2 and medication to assist with smoking cessation. Id. On May 15, 2013, Ms.
Arnzen noted that Kinder appeared more “settled,” than his last appointment, and that the Buspar
was helping him. (Tr. 419.) On physical examination, Ms. Arnzen noted “limited range of
motion due to back pain.” (Tr. 420.) The next month, Kinder complained of nausea due to the
smoking cessation medication. (Tr. 417.) Upon physical examination, Ms. Arnzen noted
tightness in the paraspinal muscles in the lumbar spine and straight leg raise positive at thirty
degrees. (Tr. 418.) She diagnosed tobacco use disorder, cervicalgia, and back pain. Id. In
July 2013, Ms. Arnzen stated that Kinder had a history of anxiety and social phobias but was
“doing well on his current treatment.” (Tr. 415.) Upon physical examination, Ms. Arnzen noted
“good” range of motion of the shoulders, spine, hips, knees and ankle; no back pain; no leg pain;
no tenderness; and a normal neurologic exam. (Tr. 415-16.) She assessed anxiety and
prescribed Valium.3 (Tr. 416.) At Kinder’s next visit, in September of 2013, he complained of
recent onset of headache with occasional nausea. (Tr. 413.) Upon examination, Ms. Arnzen
noted “chronic back pain,” no sensory or motor deficits, and appropriate mood and affect. (Tr.
414.) She diagnosed migraine, anxiety, and allergic rhinitis. Id. In October of 2013, Kinder
complained of occasional severe headaches and anxiety. (Tr. 411.) Upon physical examination,
Ms. Arnzen noted “good” range of motion of the shoulders, spine, hips, knees, and ankles; no back
Buspar is indicated for the treatment of anxiety. See WebMD, http:// www.webmd.com/drugs
(last visited March 20, 2017).
Valium is indicated for the treatment of anxiety. See WebMD, http:// www.webmd.com/drugs
(last visited March 20, 2017).
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or leg pain; no tenderness; and a normal neurological exam. (Tr. 412.) She assessed anxiety and
migraines. Id. On November 11, 2013, Kinder complained of anxiety. (Tr. 409.) Upon
examination, Ms. Arnzen noted tightness in the paraspinal muscles in the lumbar spine, and
Kinder’s complaints of anxiety. (Tr. 410.) She diagnosed anxiety and tobacco use disorder. Id.
On December 9, 2013, weeks before Ms. Arnzen authored her opinions, Kinder complained of
anxiety, especially in social situations. (Tr. 407.) No musculoskeletal examination findings
were noted, and Ms. Arnzen noted only “admits to anxiety” under the psychiatric findings. (Tr.
The undersigned finds that the ALJ provided sufficient reasons for discrediting Ms.
Arnzen’s opinions. First, as the ALJ noted, Ms. Arnzen did not connect any of her opinions to the
medical evidence. Rather, she provided opinions in a checklist form without citing to any of the
medical evidence. See Toland v. Colvin, 761 F.3d 931, 937 (8th Cir. 2014) (holding that an ALJ
may discount a conclusory medical opinion).
Second, Ms. Arnzen’s opinions are not supported by her treatment notes. The ALJ
pointed out that the medical findings reveal mostly normal findings on examination, with only
mild to moderate abnormalities noted. For example, Ms. Arnzen consistently noted no sensory or
motor deficits, and noted good range of motion of the spine and no back pain on two visits. Ms.
Arnzen’s findings of occasional tightness in the paraspinal muscles of the cervical spine, limited
range of motion due to pain on one occasion and chronic back pain on one occasion can accurately
be described as only mild to moderate findings. Although Ms. Arnzen did note a positive straight
leg raise test at thirty degrees on one occasion, in June 2013 (Tr. 418.), the next month Ms. Arnzen
found Kinder had “good” range of motion of the shoulders and spine, “no back pain,” no
tenderness, and a normal neurological exam (Tr. 415-16). As to Kinder’s mental impairments,
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Ms. Arnzen frequently noted Kinder’s complaints of anxiety, especially with regard to social
situations. She did not, however, note any findings on mental examination other than Kinder’s
reports of anxiety.
In sum, Ms. Arnzen’s treatment notes do not support the presence of extreme physical and
mental limitations. The ALJ adequately explained how the record did not support Ms. Arnzen’s
opinions. Thus, the ALJ did not err in granting little weight to these opinions.
The ALJ concluded that Kinder had the RFC to perform a limited range of light work.
Specifically, she found that Kinder had the following additional limitations: can occasionally
climb ramps and stairs, and crouch; should never climb ladders, ropes, or scaffolds; should never
kneel or crawl; should avoid concentrated exposure to vibration and hazards such as unprotected
heights and dangerous machinery; should avoid moderate exposure to irritants such as fumes,
odors, strong chemicals, and paint; can perform simple, routine tasks in a low stress work
environment with only occasional contact with supervisors, co-workers, and the general public;
only occasional workplace changes; and is able to sit or stand for one to three minutes every hour
while remaining at his workstation. (Tr. 17.)
The ALJ explained that the above RFC takes into consideration “the combined effects of
the claimant’s lumbar and cervical spinal disorder and his occasional headaches.” (Tr. 19.) She
stated that, by avoiding irritants, Kinder will be able to avoid potential triggers for headaches. Id.
Allowing him to stand or sit for one to three minutes each hour “will allow him to stretch his back
in case he gets any muscle tightness during the day.” Id. The ALJ further stated that “[l]imiting
an individual to light work presumes serious limitations; this limitation plus the other limitations in
the residual functional capacity take into consideration all the medical findings; and all opinions
have been considered.” (Tr. 20.)
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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.
Kinder argues the ALJ erred in giving little weight to Ms. Arnzen’s opinions, the only
opinion of record addressing Kinder’s limitations. He also argues that the ALJ improperly
discounted his subjective complaints. Kinder contends that the ALJ’s RFC assessment was not
based on substantial evidence. The Commissioner argues that specific medical opinion evidence
is not required to support an RFC determination, and that the ALJ performed a proper credibility
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
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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
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, including the findings of Ms.
Arnzen discussed above. The ALJ also discussed the results of imaging, and the findings on
examination of Kinder’s treating pain management physician, Alfredo S. Romero, M.D. (Tr.
Kinder underwent an MRI of the lumbar spine on October 18, 2011, which revealed mild
disc degeneration at L1-L2 to L4-L5; a bulging disc at L3-L4 with small left foraminal protrusion
without definite root impingement; a very small central L5-S1 protrusion with mild facet
hypertrophy; and disc bulging and facet hypertrophy at L4-L5. (Tr. 294.) Kinder underwent an
MRI of the cervical spine on January 8, 2013, which revealed broad left paracentral protrusion at
C6-7 with sac effacement and possible C7 root impingement; a small left central protrusion at
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C7-T1, with mild facet arthropathy and foraminal stenosis; central bulging disc at C4-5 and facet
arthropathy; and mild to moderate multilevel facet arthropathy. (Tr. 291.)
Dr. Romero treated Kinder for his back and neck pain from December 2012 through June
2014. (Tr. 306-82, 428-91.) Upon examination in December 2012, Dr. Romero noted a normal
gait and station, and stated Kinder was able to undergo exercise testing and participate in an
exercise program. (Tr. 376.) Kinder had mild to moderate tenderness of the cervical spine, with
normal muscle strength, reflexes, and sensation; moderate tenderness of the lumbar spine, with full
range of motion; and normal strength, reflexes, and sensation. (Tr. 376-77.) Dr. Romero
assessed lumbar intervertebral disc disorder without myelopathy; tobacco dependence; and
cervicalgia. (Tr. 377.) He prescribed Hydrocodone-Acetaminophen4 and Meloxicam.5 Id.
Dr. Romero’s findings remained unchanged in January 2013. (Tr. 379-81.) Dr. Romero
performed a medial branch block6 with steroids on January 31, 2013. (Tr. 364.) He noted that
Kinder’s history and physical examinations were consistent with facet pain and no neurological
deficit. Id. In February 2013, Dr. Romero noted moderate tenderness around the facet joints of
the cervical and lumbar spine, Kinder was “symptomatic” during range of motion testing of the
cervical spine, and reported mild pain with flexion and extension of the lumbar spine; but his gait
was normal, and his neurologic exam was normal. (Tr. 358.) Kinder reported that his physical
Hydrocodone-Acetaminophen, or Vicodin, is indicated for the relief of moderate to moderately
severe pain. See Physician’s Desk Reference (“PDR”), 1918 (70th Ed. 2016).
Meloxicam is a nonsteroidal anti-inflammatory drug indicated for the treatment of arthritis. See
WebMD, http:// www.webmd.com/drugs (last visited March 20, 2017).
A procedure in which an anesthetic is injected near small medial nerves connected to a specific
facet joint. The procedure is primarily diagnostic, meaning that if the patient has the appropriate
duration of pain relief after the medial branch nerve block, then he or she may be a candidate for a
subsequent procedure-called a medial branch radiofrequency ablation-for longer term pain relief.
See Spine-Health, http://www.spine-health.com/treatment/injections/medial-branch-nerve-blocks
(last visited March 20, 2017).
Page 17 of 23
functioning was “better,” his family relationships were normal, his social relationships were
“good,” his mood was “ok,” and his overall functioning was “better.” (Tr. 359.) Kinder
underwent a lumbar medial branch block on March 8, 2013. (Tr. 354.) On March 15, 2013, Dr.
Romero found that Kinder’s gait was normal, he had moderate tenderness to palpation of the
cervical spine and lumbar spine, was symptomatic during range of motion testing of the cervical
spine, had mild pain on range of motion of the lumbar spine, and his neurologic and psychiatric
exams were normal. (Tr. 350-51.)
Kinder underwent lumbar medial branch blocks on March
22, 2013, and April 5, 2013. (Tr. 347, 343.) On April 12, 2013, Kinder’s gait was normal; his
cervical range of motion was symptomatic, with no tenderness; mild pain was noted with flexion
and extension of the lumbar spine, and moderate tenderness around the facet joints was noted; and
his neurologic and psychiatric exams were normal. (Tr. 338-39.) Kinder’s physical functioning
was noted as “better,” his social relationships were “good,” his mood was “ok,” and his overall
functioning was “better.” (Tr. 339.) Dr. Romero indicated that Kinder’s medications were
helping and his pain was tolerable. Id. Kinder underwent a lumbar medial branch
radiofrequency ablation7 on May 2, 2013. (Tr. 334.) On May 10, 2013, Kinder’s gait was
normal; mild tenderness of the facet joints from C3-7 was noted, and Kinder was symptomatic
with left to right rotation of the cervical spine; moderate tenderness around the facet joints around
L1-L5 and mild pain with flexion and extension of the lumbar spine was noted; and Kinder’s
neurologic and psychiatric exams were normal. (Tr. 331-32.) His physical and overall
functioning were “better.” (Tr. 332.) Kinder underwent another medial branch radiofrequency
ablation procedure on May 30, 2013. (Tr. 327.) On June 7, 2013, Kinder’s examination findings
A minimally invasive procedure whereby heat generated by radio waves is used to target specific
nerves and temporarily interfere with their ability to transmit pain signals. See Spine-Health,
http://www.spine-health.com/treatment/injections/radiofrequency-ablation-procedure (last visited
March 20, 2017).
Page 18 of 23
remained unchanged. (Tr. 321-22.) Kinder underwent a cervical epidural injection on June 20,
2013. (Tr. 318.) On July 8, 2013, Dr. Romero noted that Kinder’s medications were helping and
managing his pain, and were improving his daily functioning, physical activities, and sleep. (Tr.
316.) Kinder underwent a second cervical epidural injection on July 18, 2013. (Tr. 313.) On
August 6, 2013, Kinder’s gait was normal; he had mild tenderness to the facet joints of the cervical
spine, and was symptomatic with left to right rotation of the cervical spine; he had moderate
tenderness around the facet joints around L4-L5 to the right side, and pain with extension of the
lumbar spine; and his neurologic and psychiatric exams were normal. (Tr. 309-10.) Kinder’s
physical functioning and overall functioning were described as “better.” (Tr. 310.) On
September 6, 2013, Dr. Romero stated that Kinder’s medications were helping and managing his
pain; and were improving his daily functioning, physical activities, and sleep. (Tr. 307.) Dr.
Romero continued to note similar findings on examination, and continued to treat Kinder’s pain
with cervical medial branch blocks and cervical medial branch radiofrequency ablations through
June 2014. (Tr. 428-91.)
Despite Kinder’s allegations of difficulty standing and walking, Dr. Romero found that he
had a normal gait on examination. Dr. Romero noted mild to moderate pain or tenderness in the
cervical and lumbar spine on examination. The ALJ pointed out that imaging did not reveal any
significant cervical or lumbar nerve root impingement, and that Dr. Romero suggested Kinder had
findings consistent with facet pain rather than nerve root compression. (Tr. 18.) Dr. Romero
also consistently noted Kinder’s neurologic examination was normal. In addition, the ALJ
pointed out that Dr. Romero reported that Kinder’s medication was effective in relieving his pain
and improving his ability to function. Id. The ALJ nevertheless considered Kinder’s complaints
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of pain and use of pain medication and limited his RFC to a restricted range of light exertional
With regard to Kinder’s mental impairments, the ALJ noted that Ms. Arnzen and Dr.
Romero both routinely found that Kinder’s mental status examination was normal. (Tr. 19.) The
ALJ adequately accounted for Kinder’s complaints of anxiety and difficulty being around people
in limiting him to simple work in a low stress environment with only occasional workplace
changes; and with only occasional contact with supervisors, co-workers, and the general public.
The Court concludes that the ALJ did not err in finding that Kinder retained the RFC to
perform a limited range of light work. The ALJ’s RFC determination was supported by
substantial evidence despite the fact that it did not rely upon any medical opinion evidence.
The ALJ also properly considered the credibility of Kinder’s subjective complaints in
determining his RFC. 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.
Page 20 of 23
The ALJ first noted that there were inconsistencies between Kinder’s allegations of total
disability, and the medical record evidence. (Tr. 18.) An ALJ may consider the lack of objective
medical evidence supporting a plaintiff’s subjective complaints as one factor in assessing
credibility. Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004). While some medical evidence
in the record supports Kinder’s complaints of back and neck pain, the medical evidence as a whole
belies Kinder’s allegations to the extent he claims disabling limitations. As previously noted,
physical examinations revealed a normal gait, mild to moderate pain and tenderness, no sensory or
motor deficits, and normal neurologic examinations. (Tr. 18.) The ALJ pointed out that imaging
revealed degenerative changes but no significant nerve impingement. Id.
The ALJ also stated that Kinder’s medication is effective in relieving his pain and
improving his ability to function. (Tr. 18.) This finding is supported by the records of Dr.
Romero discussed above. Conditions which can be controlled by treatment are not disabling.
See Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir. 2012) (quoting Brown v. Astrue, 611 F.3d
941, 955 (8th Cir. 2010)); 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).
With regard to Kinder’s mental impairments, the ALJ stated that Ms. Arnzen noted
Kinder’s complaints of anxiety, but both Ms. Arnzen and Dr. Romero found that he had a normal
mental status exam. (Tr. 19.) He pointed out that Ms. Arnzen found that Kinder was anxious on
only one occasion, in January of 2014. (Tr. 405.) The ALJ also stated that the medication Ms.
Arnzen prescribed for Kinder was effective in controlling his anxiety. (Tr. 19, 415, 419.)
The ALJ further found that Kinder’s work record was characterized by breaks in reported
income and minimal income during periods in which he did not allege disability. (Tr. 19.)
Page 21 of 23
Fredrickson v. Barnhart, 359 F.3d 972, 976 (8th Cir. 2004) (claimant’s credibility lessened when
considering sporadic work record reflecting relatively low earnings and multiple years with no
reported earnings). Although Kinder had a fairly steady work record prior to 2006 (Tr. 222), he
testified that he quit working in 2006 due to “a reduction in force.” (Tr. 35.) Thus, the ALJ
accurately found that Kinder’s work record detracted from his credibility. See Medhaug, 578
F.3d at 816–17 (it is relevant to a claimant’s credibility that she stopped working for reasons other
than her medical condition).
The ALJ discussed Kinder’s daily activities. (Tr. 18.) Kinder testified that he lived by
himself, he tries to perform some “light housework,” prepares meals, and shops for groceries, but
does not do much else. (Tr. 16, 46-48.) Kinder further testified that he does not like being
around people or being in crowds. (Tr. 50.) The ALJ found that, although Kinder described
activities that were fairly limited, this degree of limitation could not be verified. (Tr. 18.) She
further stated that it was difficult to attribute that degree of limitation to Kinder’s medical
condition in light of the medical findings previously discussed. (Tr. 18-19.) Kinder argues that
the ALJ improperly found that his testimony regarding his daily activities could not be verified.
The ALJ, however, explained that Kinder’s limited daily activities were outweighed by the other
factors discussed in his credibility analysis, such as the lack of objective findings to support
disabling limitations, Kinder’s work record, and the effectiveness of his medications. (Tr. 19.)
In sum, the ALJ’s credibility findings were consistent with Polaski and supported by
substantial evidence in the record as a whole. A review of the entire record demonstrates that the
ALJ did not rely solely upon any one of the factors in the credibility analysis. Rather, the ALJ
considered several factors in evaluating Kinder’s credibility, and found that Kinder’s testimony
regarding disabling limitations was not entirely credible. “If the ALJ discredits a claimant’s
Page 22 of 23
credibility and gives a good reason for doing so, [the court] will defer to its judgment even if every
factor is not discussed in depth.” Perkins v. Astrue, 648 F.3d 892, 900 (8th Cir. 2011).
For all of the foregoing reasons, Kinder’s allegations that the ALJ erred are unavailing.
Kinder was afforded a full and fair opportunity to present his claims, and the ALJ’s ultimate
decision did not fall outside the available “zone of choice.” Buckner, 646 F.3d at 556. It must
therefore be affirmed. Accordingly, Judgment will be entered separately in favor of Defendant in
accordance with this Memorandum.
Dated: March 30, 2017
UNITED STATES MAGISTRATE JUDGE
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