Burkett v. Astrue
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed, and plaintiffs Complaint is dismissed with prejudice. Signed by Magistrate Judge Frederick R. Buckles on 8/30/13. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES D. BURKETT,
CAROLYN W. COLVIN,1 Commissioner )
of Social Security,
Case No. 2:11CV94 FRB
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff James D.
Burkett’s appeal of an adverse decision of the Social Security
All matters are pending before the undersigned
United States Magistrate Judge, with
consent of the parties,
pursuant to 28 U.S.C. § 636(c).
Background and Procedural History
Insurance Benefits (“DIB”) pursuant to Title II, and Supplemental
Security Act, 42 U.S.C. §§ 401, et seq. (also “Act”), alleging that
he became disabled on April 2, 2007.
(“Tr.”) at 113-20).
Plaintiff’s applications were denied, and he
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should
therefore be substituted for Michael J. Astrue as the defendant
in this case. No further action needs to be taken to continue
this suit by reason of the last sentence of 42 U.S.C. § 405(g).
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requested a hearing before an administrative law judge (“ALJ”),
which was held on April 9, 2010.
the ALJ issued an unfavorable decision.
On August 17, 2010,
then sought review from defendant Agency’s Appeals Council, which
denied plaintiff’s request for review on November 8, 2011. (Tr. 15).
The ALJ’s decision thus stands as the Commissioner’s final
decision subject to review in this Court.
42 U.S.C. § 405(g).
Evidence Before The ALJ
administrative hearing, testified that he had lived with his wife
and teenage son in the same residence for the past eleven years.
He completed the eleventh grade, and received no
He had been the owner and operator of
a painting business, and had past work experience as a concrete
worker, a prep cook, a spool setter, and steel worker.
ALJ asked plaintiff whether, since his alleged onset date of April
2, 2007, he had “worked anywhere for anybody including any kind of
self-employment income,” and plaintiff replied, “[n]o, I haven’t,
In response to follow-up questions from
the ALJ, plaintiff denied doing anything for anyone in exchange for
compensation other than money, and denied that he had worked even
part time or even for just part of one day.
Plaintiff testified that he began having problems before he
He explained that he had pain going
down his legs and up his back, and that it was worse in his lower
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He testified that injections had not helped.
He testified that he was currently seeing Dr. Beckman but
was not taking pain medication because Dr. Beckman was concerned
about the addictive nature of it.
Plaintiff testified that he had sleep apnea and used a
“BiPap” machine every night, which was paid for by Medicaid.
Plaintiff initially testified that he had no problems during
the day that he attributed to sleep apnea.
upon questioning from his attorney, he testified that he felt tired
during the day, and was sometimes unable to use the BiPap machine
because it blew air into his eyes.
that he “had to go see a eye doctor to fix my eye now because the
mask isn’t working for me” and explained that the mask did not fit
properly and might cut off the blood stream to his brain, so he had
to wear it loose.
Plaintiff testified that he had back pain when he woke in
He testified that he could stand for thirty
minutes before experiencing numbness in his legs and swelling in
He testified that he sat in a recliner for
a couple of hours to relieve these symptoms.
that he could sit for 30 to 45 minutes before needing to lay down.
He testified that he spent six hours per day in a recliner
or lying down.
When asked “have you had problems with your
hands?” plaintiff replied “No, not - - no, I haven’t.
recently I have.”
When asked what he meant by “just
recently” plaintiff replied that his hands were “starting to swell
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up and - - .”
Plaintiff testified that he saw a specialist
“yesterday” who took x-rays but did not yet have results.
medication for bipolar disorder, but denied seeing a psychiatrist
for that condition.
Plaintiff testified that bipolar
disorder caused irritability, and that he could not “stand to be
around [his] wife or anybody because of that.
I just don’t want to be around nobody.”
When I hurt so bad
Plaintiff testified that he cooked for his family for
about 20 to 30 minutes, but did not do dishes because he could not
He testified that he did not do any house
cleaning or laundry, did not take out the garbage, did not do yard
work, did not shop, or engage in hobbies, and stated that he “quit
He drove “[a]t times” but stated
that his wife sometimes had to drive due to swelling in his back
and numbness in his legs.
Plaintiff was then asked how many
times he drove during the course of one week, and he replied: “I’d
say maybe three times a week because of my sleep apnea.
two wrecks almost because of it.”
He visited people for
short periods of time before returning home to lay down.
He belonged to a church but stopped going because of problems
sitting, explaining that “[o]nly about 45 minutes and I’m already
wanting to leave.”
He ate out “[e]very now and
He testified that he got along with people
better now than he did before, which he attributed to medication.
Plaintiff testified that, with medication, he did not
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have anxiety around other people, and stated “[a]ctually I feel a
lot better and my marriage is getting along a lot better.”
He attributed drowsiness to the medication.
keep up with his own appointments.
He was able to
He testified that his
wife helped him put on his socks and sometimes helped him wash in
Plaintiff testified that he “quit” using a computer
“because my hands they hurt so bad I can’t do it now.”
asked when he quit, plaintiff replied “[a]bout three years ago.”
When asked whether he had those hand problems three years
ago, plaintiff replied “[y]eah.
They were going numb on me.
He testified that he could use a cell phone but did
not text because he could not push a lot of little buttons.
declined over the past three years.
He testified that
his ability to walk was better about a year and one-half ago, but
not his ability to sit longer than 45 minutes or stand longer than
Additional evidence which was not before the ALJ was
submitted to and considered by the Appeals Council. This
evidence includes medical records from Dr. Beckmann, radiological
reports, and a statement from plaintiff. In the Administrative
Transcript, this evidence is designated as Exhibits 21F, 22F,
23F, 24F, and 11E, and found at pages 351-377, and 193-96). The
Court must consider these records in determining whether the
ALJ’s decision was supported by substantial evidence. Frankl v.
Shalala, 47 F.3d 935, 939 (8th Cir. 1995); Richmond v. Shalala,
23 F.3d 1441, 1444 (8th Cir. 1994). For the sake of continuity,
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On June 6, 2006, plaintiff saw Terry L. Thrasher, D.O.,
and it was noted that plaintiff’s history was “L leg goes Knumb [[sic] cold - tingles.”
An MRI was ordered.
Later that month, plaintiff underwent sleep studies at Moberly
Regional Medical Center, on the referral of Dr. Thrasher.
The impression was obstructive sleep apnea effectively
controlled with a BiPAP.
On February 28, 2007, plaintiff saw Jon R. Mattson, D.O.,
with complaints of low back pain after a fall onto concrete on the
right side of his body on February 14, 2007.
complained of pain radiating down his right leg.
sensation was okay. (Id.)
The remainder of Dr. Mattson’s note is
Lumbar spine x-ray performed on March 9,
2007 revealed spondylosis, disk space narrowing, potential spinal
stenosis L5-S1, and questionable minimal compression deformity at
X-ray of plaintiff’s right hip, performed on March 9,
changes in each hip joint. (Tr. 199).
X-ray of plaintiff’s lumbar
spine performed on this same date revealed spondylosis, disk space
An MRI of plaintiff’s lumbar spine, performed on April
17, 2007, revealed disc protrusion at L5-S1 resulting in severe
discussion of these records is incorporated with that of the
records before the ALJ at the time of his decision.
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right-sided neuroforaminal narrowing and some mild central canal
narrowing, and disc dessication and disc space narrowing at L5-S1;
mild disc bulges at L3-L4 and L4-L5 without significant stenosis or
On May 7, 2007, plaintiff returned to Dr.
stating that he needed a refill of Vicodin, and also stating that
he wanted his dosage increased.
Dr. Mattson wrote that
plaintiff reported that he needed a higher dosage, was waiting to
see if he could get assistance for his problem, was in need of
surgery because of severe stenosis on his right side.
examination of plaintiff’s extremities, Dr. Mattson noted that
plaintiff had good pulses, moved his extremities well, had no motor
examination, Dr. Mattson noted no muscle atrophy, good strength,
and moderate lumbar spasm.
returned to Dr. Mattson on July 11, 2007
stating that he had an abscessed tooth and needed antibiotics.
Upon examination, Dr. Mattson noted that plaintiff had
abscess, and prescribed an antibiotic.
extremities was unremarkable, and there are no musculoskeletal
complaints noted in Dr. Mattson’s treatment note.
Rodriguez, M.D., for a Family Services Evaluation.
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Plaintiff complained of an onset of pain in March of 2007,
and complained of occasional and intermittent pain.
Plaintiff stated that he sometimes had some pain shooting into the
back of his legs, and sometimes not.
ice and heat, and took Vicodin.3
was a painter.
He stated that he used
Plaintiff reported that he
Upon examination, plaintiff was able to move
all four extremities, had no obvious gait abnormality, straight leg
raise testing was negative, he had a leg length discrepancy, normal
deep tendon reflexes, no abnormal sensation, and clicking in the SI
joint. (Tr. 219). Dr. Acosta-Rodriguez noted symmetrical range of
motion, and no radicular complaints.
Plaintiff had no new
pain after the examination, and Dr. Acosta-Rodriguez noted that he
got up and walked out normally.
radiculopathy, allegations of bulging discs and nerve pinch, and
suspect facet DJD and/or neural foraminal stenosis.
In his report, Dr. Acosta-Rodriguez wrote that plaintiff
asked “particular questions about going back to work or not” and
that plaintiff’s “behavior was unusually upbeat for a patient for
a county evaluation.”
Dr. Acosta-Rodriguez wrote “[a]t the
end of the evaluation, he was happy with what I diagnosed him with
and he gave me a pen from his business.”
Rodriguez wrote that he watched plaintiff walk out to the parking
Vicodin is a combination of the drugs Acetaminophen and
Hydrocodone, and is used to relieve moderate to moderately severe
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lot, and that plaintiff appeared to be doing fairly well with no
Dr. Acosta-Rodriguez wrote: “I did have
some concerns regarding some of his questioning regarding long term
complications and pain and disability for such a young male.
thought it was rather unusual to be focusing on these subjects.”
Plaintiff returned to Dr. Mattson on August 28, 2007 and
stated that his back pain had worsened, and that he had swelling
and a knot in his right thigh.
Upon examination, Dr.
Mattson noted that plaintiff was in no acute distress, had good
pulses, moved his extremities well, and had no motor deficits or
Dr. Mattson diagnosed plaintiff with low
back pain, herniated disk, and lumbar radiculopathy, and prescribed
On September 4, 2007, plaintiff saw Jason D. Zerrer,
M.D., with complaints of abdominal pain.
musculoskeletal system, and noted that examination of plaintiff’s
Plaintiff was in mild distress.
revealed a small kidney stone.
A CT of plaintiff’s abdomen
Plaintiff returned to Dr. Mattson on November 29, 2007
with complaints of right shoulder and neck pain.
examination, plaintiff had good shoulder range of motion, and some
biceps tendon pain.
X-ray was ordered, which revealed no
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evidence of fracture, dislocation or degenerative change, but some
evidence of granulomatous changes.
Plaintiff saw Dr.
Mattson on December 6, 2007 with complaints of bicep pain, and Dr.
Mattson noted bicep pain upon motion and palpation.
Dr. Mattson diagnosed biceps tendonitis.
Records from Terry L. Thrasher, D.O., indicate that
plaintiff was seen for complaints of back pain in January of 2008
treatment for these complaints through June 30, 2008.
On July 29, 2008, plaintiff was seen by Laurel Sommer,
M.D., stating that he wished to establish care.
Sommer noted that plaintiff was a painter.
complained of chronic low back and new onset of right shoulder pain
Plaintiff reported that, three months
ago, something “popped” in his right shoulder, and he now had
limited range of motion.
He stated that he was out of the
narcotics that his primary care physician prescribed, and he wanted
Upon examination, Dr. Sommer noted that
plaintiff was tender over the right SI joint.
Sommer wrote that plaintiff’s “pain response seemed exaggerated”
musculoskeletal examination. (Id.) Plaintiff had no tenderness to
palpation of the vertebrae, no swelling, normal muscle tone, no
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tenderness, no tenderness to palpation of the shoulder, intact
range of motion bilaterally (although plaintiff indicated that
movement was severely painful), and full shoulder strength.
Straight leg raise testing was negative bilaterally.
Sommer again wrote “[p]ain response seemed exaggerated.”
Dr. Sommer’s impression was low back pain, right shoulder
pain, decreased urinary flow, and elevated blood pressure, and she
prescribed medication and recommended MRI.
MRI of plaintiff’s right shoulder, performed on August 6,
2008, revealed degeneratie change in the AC joint with impingement.
On August 12, 2008, plaintiff saw orthopedist Dominic
Patillo, M.D., with complaints of right shoulder pain that started
in his neck and radiated all the way down into his hand, and was
accompanied by a numbness throughout his entire right hand.
Plaintiff stated that the pain was present during rest
and activity, but that certain positions caused the pain to wax or
He denied weakness.
plaintiff’s cervical spine showed globally mildly reduced range of
motion with some mild pain.
Plaintiff had full range of
motion of his right shoulder, full rotator cuff strength, full
bicep, tricep and wrist strength, intact sensation, and normal
findings in his hand. Cervical spine x-ray performed on August 12,
2008 was interpreted as normal, and cervical MRI showed evidence of
some tendinopathy. (Tr. 251, 256). Right shoulder x-ray performed
on that date revealed no fracture, dislocation or bony abnormality.
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Dr. Patillo’s assessment was right shoulder and arm
Dr. Patillo noted that plaintiff’s symptoms of
pain radiating down his arm and numbness could not be explained by
the MRI findings.
Dr. Patillo recommended that plaintiff
have his neck reevaluated, and that plaintiff could be seen on an
On September 2, 2008, plaintiff returned to Dr. Sommer
and noted that he had seen an orthopedist, and reported that his
“shoulder pain has almost completely resolved” but that he was now
having issues with exacerbation of back pain, which he described as
sharp right-sided low back pain.
of narcotic medication.
Upon examination, plaintiff was
tender to palpation of the right SI joint.
He requested refills
wrote: “pain response seemed exaggerated - started cursing and
grimacing.” (Id.) She noted that plaintiff indicated reproduction
of “burning” pain with palpation.
Plaintiff had normal
muscle tone, no swelling, no other tenderness, no edema, normal
straight leg raise testing was negative bilaterally. (Tr. 268-69).
Dr. Sommer recommended physical therapy, but plaintiff claimed that
such treatment would be cost-prohibitive and indicated he wanted an
MRI and surgery.
Dr. Sommer gave plaintiff a handout
on low back exercises and stated that she would refill his Vicodin
prescription while awaiting records from his previous physicians.
Dr. Sommer noted that she requested a urine drug screen from
plaintiff, but he was unable to provide a sample.
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Lumbar spine MRI performed on September 22, 2008 revealed
diffuse disc bulge with central disc protrusion at L5-S1, and mild
stenosis of bilateral neural foramina.
On January 24, 2009, Cara Falter, a Single DecisionMaker, completed a Physical Residual Functional Capacity form.
Ms. Falter opined that plaintiff could occasionally
lift and/or carry ten pounds, and frequently lift and/or carry less
She opined that plaintiff could stand and/or
walk for at least two hours in an eight-hour work day, and could
sit for six.
She opined that plaintiff’s ability to push
and/or pull was limited in the upper extremities.
occasionally perform all other postural maneuvers.
She opined that plaintiff’s ability to reach in all directions was
limited, but that plaintiff had no other manipulative limitations.
She opined that plaintiff should avoid concentrated
exposure to vibration and hazards, but had no other environmental
On February 24, 2009, plaintiff saw Joseph A. Beckmann,
M.D. with complaints of back and shoulder pain, and to establish
Dr. Beckmann noted that plaintiff had recently
established care with Dr. Sommers, and was “establishing it with me
today for reasons that are not clear.”
that pain was plaintiff’s main concern.
Dr. Beckmann noted
reviewed plaintiff’s chart and noted that the September 22, 2008
lumbar spine MRI showed L5-S1 disk herniation with mild stenosis,
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but “was otherwise pretty unremarkable.” (Id.) Plaintiff reported
that a pain specialist had recently performed an injection, but
that plaintiff was afraid of needles and would not undergo that
Plaintiff reported that he had pain in his
right shoulder, and told Dr. Beckmann that he was “a painter by
trade and has pain with any type of movement of the shoulder and
this is precluded [[sic] his ability to work on a regular basis.”
Dr. Beckmann noted the site of plaintiff’s complaints, and
noted that radiological testing of plaintiff’s right shoulder and
neck yielded normal findings, and that it was opined that the MRI
did not explain plaintiff’s symptoms.
Dr. Beckmann noted
that, when plaintiff last saw Dr. Sommers, he reported that his
shoulder pain had resolved, but that he wanted narcotics for his
Plaintiff reported chronic anxiety.
plaintiff “is married and is an employed painter.”
examination, Dr. Beckmann noted that, as plaintiff described his
demonstrating no deficits in range of motion.”
specific testing of the right shoulder, Dr. Beckmann could not
elicit motor weakness in any of the rotator cuff groups, and there
was no joint swelling or redness.
Upon examination of
plaintiff’s back, plaintiff’s gait appeared normal and he was able
to rise from a chair and climb onto the examination table with
Plaintiff could forward bend to 60 degrees
before stopping due to pain.
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Palpation over the spine
revealed tenderness in the paraspinous muscle groups bilaterally in
the lumbosacral region.
quadriceps strength was good.
Plaintiff could raise on his
Dr. Beckmann’s assessment was chronic low back pain “as
a manifestation of obesity and sedentary lifestyle,” right shoulder
pain without any evidence of deficit, morbid obesity, and history
of bladder outlet obstruction that had responded to medication.
Dr. Beckmann advised plaintiff to follow a regimen of diet
and exercise for weight loss and physical conditioning, and told
plaintiff that he would not prescribe narcotics.
Beckmann wrote that both plaintiff and his wife appeared upset but
made no comment.
On August 11, 2009, plaintiff returned to Dr. Beckmann
“with a stated concern of high blood pressure but then says that
his real concern is irritability,” which plaintiff said was getting
worse and affecting his marriage and other relationships.
Plaintiff reported a history of sleep apnea and reported
having used a CPAP machine, but stated that the mask broke six
months ago and he did not have the money for a replacement.
Dr. Beckmann’s assessment was irritability as a manifestation of
He recommended that plaintiff see a
psychiatrist but plaintiff declined, stating “I’m not crazy.”
Dr. Beckmann recommended that plaintiff return in one week.
significant improvement, which his wife confirmed. (Tr. 320). Dr.
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Beckmann wrote: “[h]e is much calmer and is functioning well in the
work environment, which is something new.”
expressed concern about infertility and an interest in fertility
On September 11, 2009, plaintiff saw Peter J. Koopman,
diagnosis of a bleeding hemorrhoid.
On September 29, 2009, plaintiff saw Dr. Burkett with
complaints related to sleep apnea, stating that he had used a CPAP
machine which had helped him until it broke six months ago, and
that, since then, he had typical symptoms of sleep apnea.
Plaintiff reported that the medication he had been taking
for bipolar disorder “helps him remain functional both at work and
in his home life.”
Dr. Burkett also noted that fertility
testing had revealed markedly abnormal results.
had no musculoskeletal complaints.
See (Tr. 324-25).
noted that he would request plaintiff’s sleep study report and
review plaintiff’s CPAP settings, and prescribe another unit for
On October 7, 2009, plaintiff saw Dr. Beckmann with
complaints of severe diarrhea. (Tr. 327). Plaintiff reported that
he recently got a new CPAP machine and was now sleeping 12 hours
per night and that, with this and the psychiatric medication, his
revealed a normal gait.
Plaintiff was diagnosed with
diarrhea that was likely related to an antibiotic.
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On October 12, 2009, plaintiff saw Melinda Hecker, M.D.,4
with complaints of persistent diarrhea and abdominal cramping.
Plaintiff reported that he “[h]as actually had to
almost stay home from work from the cramping and pain of this.”
Plaintiff did not report any musculoskeletal complaints.
See (Tr. 330-31).
Upon examination, plaintiff was most tender in
Dr. Hecker recommended stool studies.
On October 19, 2009, plaintiff saw Dr. Beckmann with a
complaint of persistent diarrhea.
that he had “quite a bit of abdominal cramping along with multiple
episodes of fecal incontinence” that had been “bad enough that it
has prevented him from working.”
Dr. Beckmann noted
plaintiff’s history of treatment with Dr. Hecker, and noted that
stool studies were negative.
Under “Social History” Dr.
Beckmann noted that plaintiff was married and self-employed.
Upon musculoskeletal examination, Dr. Beckmann noted that
plaintiff had no joint pain, no joint swelling, and no morning
stiffness, and joint survey showed no evidence of active synovitis.
Dr. Beckmann recommended a colonoscopy.
On November 4, 2009, plaintiff returned to Dr. Beckmann
and reported lumbosacral pain with no radiation following a fall.
(Tr. 335). Plaintiff denied using any home remedies, ice, or heat,
Dr. Hecker and Dr. Beckmann are partners in the same
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and reported that he was able to walk “although it is quite painful
and he can’t work.”
Upon examination, Dr. Beckmann noted
that joint survey showed no active synovitis and no external
bruising in the lumbosacral area.
forward bend to 45 degrees before stopping due to pain, lateral and
lateral bending and rotary movements were severely restricted, and
he could raise on his toes and rock on his heels.
neurologic examination, sensorium was clear, there was no gross
motor deficit, and reflexes were normal and symmetrical.
Dr. Beckmann diagnosed plaintiff with a low back contusion and
strain and prescribed Vicodin.
On November 13, 2009, plaintiff underwent radiological
testing of his abdomen and chest at Moberly Regional Medical
Center, which revealed no bowel obstruction, granulomatous changes
in the lungs, kidney stones, and no acute abdominal process.
Plaintiff returned to Dr. Beckmann on November 24, 2009
and reported severe low back pain.
Dr. Beckmann noted
that he first saw plaintiff for this three weeks ago, and then
wrote: “[t]oday, he tells me that this pain actually started about
5 years ago when he was crushed in a car door of a slowly moving
vehicle” and that plaintiff’s “problem is that he can’t work like
The only thing he is trained to do is construction type work
and he is inquiring about his eligibility for disability.”
Plaintiff also reported right shoulder pain and irritability. (Tr.
He continued to refuse to see a psychiatrist.
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Musculoskeletal examination revealed no evidence of synovitis,
plaintiff rose from a chair and climbed onto the examination table
with “obvious, significant discomfort,” he was limited in forward
bending, his gait was antalgic, and muscle spasm was present.
He could still raise on his toes, and reflexes were
Dr. Beckmann assessed chronic low back pain
related to degenerative joint disease, and opined that plaintiff’s
back could improve with regular exercise and significant weight
loss “but I think his underlying psychiatric problem will preclude
any reasonable expectation of that.
I do support his application
interrogatory form indicating that he had been treating plaintiff
since August 11, 2009 for bipolar disorder, lumbar spondylosis with
reflux, chronic diarrhea, and bladder outlet obstruction.
In response to the interrogatory question “[i]f Mr. Burkett
has lower back pain would it be recommended that he lay down to
relieve that pain” Dr. Beckmann wrote “yes.”
On January 15, 2010, plaintiff saw Dr. Beckmann for
Dr. Beckmann wrote: “[w]ith regard to
concerns about bipolar disorder, both he and his wife indicates
that things are pretty well controlled.”
It is noted that
While this treatment note lists a “[r]esult date” of
February 15, 2010, the date of service was January 15, 2010.
(Tr. 341). In his decision, the ALJ correctly noted the date of
service as January 15, 2010. (Tr. 25).
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plaintiff’s mood was “pretty stable” although he easily became
excited about trivial things, and he was sleeping fine.
Plaintiff reported that he continued to be bothered by back pain,
and told Dr. Beckmann that he spent most of the day lying in bed or
on the couch because of this.
He reported that he had a
disability hearing scheduled soon.
He reported no
change in the quality or character of his symptoms, and denied
lower extremity numbness or weakness.
that his problems with diarrhea had resolved.
reported that he had gained quite a bit of weight recently, and
attributed this to being more sedentary due to back pain and
assessment included “presumed bipolar disorder, stable” with the
note that plaintiff “still declined psychiatric consultation,” and
chronic low back pain, stable.
plaintiff was seen by Daniel Jost, M.D. on April 8, 2010.
Plaintiff reported neck
and back pain, and stated that he had a bulging disc and injections
in his back, and also had shoulder pain for which injections were
Plaintiff complained of pain and swelling in
his hands, wrists,
shoulders, elbows, knees, ankles and feet
associated with four hours of morning stiffness.
rated his pain as a seven on a one-to-ten scale, and reported that
he was unable to dress himself including shoe laces and buttons.
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(Id.) He reported difficulty getting out of bed, walking, washing,
bending, getting out of a car, and stated that he could not walk
He reported that he was not presently working.
Plaintiff denied worries, but complained of anxiety,
temper, depression, agitation, and trouble staying asleep.
Plaintiff had diffuse tenderness in the joints of his
fingers and hands, full passive range of motion at the shoulder but
limitation to 90 degrees with active range of motion.
Rolling the hips caused back pain, and his knees were slightly
impression was diffuse polyarthralgias, and he recommended tests
for autoimmune diseases including rheumatoid arthritis, and x-rays
of the hands, wrists and feet.
Plaintiff returned to Dr. Jost on April 15, 2010 and
medication, but stated that his shoulders bothered him the most.
Plaintiff reported that his right shoulder pain had
increased and that he had excruciating pain in his left shoulder.
Plaintiff reported that he still had some discomfort in his
lumbar spine as well.
Dr. Jost noted that the September
2008 lumbar spine MRI revealed mild stenosis at L5-S1, and the
August 2008 right shoulder MRI showed degenerative change with
This visit occurred after the April 9, 2010 administrative
hearing, but the record of this visit was not submitted to the
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impingement and possibly a
partial tear of the supraspinatus
Upon examination, plaintiff was tender in his
hands, but his wrists and elbows were unremarkable, he had limited
abduction of his left shoulder, and his hips and knees were
Dr. Jost wrote that plaintiff may have mild
rheumatoid arthritis and a rotator cuff tear, and ordered an MRI.
The following medical records were submitted to the
On May 20, 2010, plaintiff saw Dr. Beckmann and
reported increased symptoms of agitation and irritability after
reported that he had some lower extremity edema at the end of the
rheumatoid arthritis, and stated that he was taking medication and
no lower extremity edema.
Upon examination, Dr. Beckmann noted
Dr. Beckmann’s assessment
was bipolar disorder, hypertension, chronic abdominal pain and
diarrhea, and a new diagnosis of rheumatoid arthritis.
Plaintiff returned to Dr. Beckmann on June 14, 2010 with complaints
of chest congestion and productive cough.
He was diagnosed with bronchitis.
Plaintiff returned to Dr. Beckmann on July 26, 2010 and
reported that “[t]wo days ago he was fixing some gutters on his
home” when a “metal gutter came away from the house and contacted
an electrical power line as it left the transformer” and plaintiff
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“was standing on a ladder at that time but did not fall” but was
unable to let go of the ladder for a brief period.
Plaintiff reported spending the past 48 hours in bed and continued
to have a lot of aching in his arms and shoulders and pain in his
Musculoskeletal examination revealed no joint
swelling or morning stiffness but some muscle aching as described,
no active synovitis, tenderness over the right quadriceps muscle
group but no redness or warmth, and muscle mass was symmetrical.
“Examination of the cervical spine revealed a good,
full range of motion with no pain or limitations.”
Motor exam showed normal bulk and tone throughout, and strength was
Gait and station were normal.
assessment was electrocution, and tests were ordered.
Plaintiff returned to Dr. Beckmann on August 19, 2010 and
reported he had fully recovered from the electric shock and that
his weight was his primary concern, and he was interested in
He reported that he had a CPAP
machine but found it difficult to use and therefore did not
consistently use it.
He was given contact information
for a bariatric surgery program. (Tr. 362). Plaintiff returned on
September 13, 2010 with concerns about right hand pain, but that
his primary concern was his progressive weight gain.
Dr. Beckmann noted that, although plaintiff expressed interest in
bariatric surgery, he did not present for the blood work that he
and Dr. Beckmann had planned last month.
lower extremity edema. (Id.) Musculoskeletal examination revealed
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some puffiness around the right wrist and MCP joints.
Dr. Beckmann saw plaintiff again in September for upper respiratory
MRI of plaintiff’s lumbar spine performed on February 8,
2011 revealed an apparent central herniated disk at L5-S1 that did
not lateralize, no spinal stenosis, and foraminal narrowing at L5S1, greater on the right.
X-ray of plaintiff’s right foot, performed on February
22, 2011, revealed a small plantar calcaneal spur and posterior
enthesophyte related to degenerative changes, and maintained joint
On March 2, 2011, plaintiff’s attorney sent a letter and
Medical Source Statement (also “MSS”) from Dr. Beckmann to the
In the letter, plaintiff’s attorney wrote that
the ALJ had disregarded Dr. Beckmann’s opinion due to the lack of
specific functional limitations, which the MSS included.
In the MSS, dated February 14, 2011, Dr. Beckmann indicated
that plaintiff could only occasionally lift five pounds, could
stand and/or walk continuously for 10 minutes, was limited in his
ability to push and/or pull, could never climb, balance or stoop,
could occasionally kneel, crouch and bend, and was limited in his
plaintiff was unlimited in all other areas and had no environmental
Dr. Beckmann left blank the sections of
the form that asked him to describe the ways in which the impaired
activities were limited, and to describe the principal clinical and
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laboratory findings and symptoms or allegations (including pain)
Dr. Beckmann checked boxes indicating
that had considered pain, discomfort, and/or other subjective
complaints, and that rest would be helpful to plaintiff.
Dr. Beckmann checked boxes indicating that he did not
consider it necessary for plaintiff to assume a reclining or supine
position, or prop up his legs, to help control existing pain or
The ALJ’s Decision
impairments of lumbar spondylosis with chronic back pain, stable;
right shoulder degenerative joint disease with impingement; mild
rheumatoid arthritis; hypertension; obesity, and obstructive sleep
apnea, (Tr. 19), but did not have an impairment or combination of
conducted an exhaustive analysis of the medical evidence of record
and concluded that plaintiff retained the residual functional
capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R.
§§ 404.1567(a) and 416.927(a) except that plaintiff was able to sit
for only about 30 minutes at any one time before having to stand at
the workplace for less than five minutes.
further determined that plaintiff was limited to only occasional
stooping, balancing and climbing of ramps and stairs, and should
never kneel, crouch, crawl, or climb ropes, ladders, or scaffolds.
The ALJ further determined that plaintiff should perform no
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heights, but was able to frequently but not constantly use his
Citing SSR 02-1P, the ALJ noted that the combined effects
of obesity with other impairments can be greater than the effects
of each of the impairments considered separately.
ALJ then wrote that he had considered the effects of plaintiff’s
obesity in determining RFC.
The ALJ determined that plaintiff was unable to perform
his past relevant work.
The ALJ considered plaintiff’s
residual functional capacity, age, education and work experience in
considered vocational expert testimony regarding the extent to
sedentary occupational base.
Based thereon, the ALJ
concluded that there were jobs that existed in significant numbers
in the national economy that plaintiff could perform.
ALJ concluded that plaintiff was not under a disability, as defined
in the Act, at any time through the date of the decision.
To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
- 26 -
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker
v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir.
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual
impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age,
substantial gainful work which exists in the national economy.” 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Commissioner engages in a five-step evaluation process.
C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
The Commissioner begins by deciding whether the claimant
is engaged in substantial gainful activity.
working, disability benefits are denied.
If the claimant is
Next, the Commissioner
combination of impairments, meaning that which significantly limits
his ability to do basic work activities.
If the claimant’s
Commissioner then determines whether the claimant’s impairment(s)
meet or equal any listed in 20 C.F.R., Subpart P, Appendix 1.
- 27 -
claimant’s impairment(s) is equivalent to a listed impairment, he
is conclusively disabled.
At the fourth step, the Commissioner
establishes whether the claimant can perform his past relevant
Commissioner evaluates various factors to determine whether the
claimant is capable of performing any other work in the economy.
If not, the claimant is declared disabled and becomes entitled to
The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.
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).
evidence is less than a preponderance but enough that a reasonable
person would find adequate to support the conclusion.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”
Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks
and citation omitted).
The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision.
498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir.
administrative decision, this Court must affirm that decision even
if the record also supports an opposite decision.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
- 28 -
marks and citation omitted); see also Jones ex rel. Morris v.
Barnhart, 315 F.3d 974, 977 (8th Cir. 2003); see also Pearsall, 274
F.3d at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000) (In the event that two inconsistent conclusions may be drawn
supported by substantial evidence on the record as a whole).
In the case at bar, plaintiff claims that the ALJ’s RFC
determination is not based upon substantial evidence.
plaintiff argues that the ALJ’s rationale for disregarding evidence
from Dr. Beckman and adopting the opinion of Dr. Acosta-Rodriguez
has no basis in the record.
Plaintiff also challenges the ALJ’s
observation regarding the timing of Dr. Beckmann’s December 17,
Beckmann’s MSS, generated after the ALJ’s decision and submitted to
disregarding Dr. Beckmann’s earlier evidence.
states that the Appeals Council must consider evidence that is new,
Plaintiff also contends that the ALJ did not discuss the
impact of obesity upon plaintiff’s other medical
accordance with SSR 02-1P.
In response, the Commissioner contends
that substantial evidence supports the ALJ’s decision.
Plaintiff challenges this assessment for the reasons
Review of the ALJ’s RFC determination reveals no
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Residual functional capacity is defined as that which a
person remains able to do despite his limitations.
20 C.F.R. §§
404.1545, 416.945, Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir.
The ALJ must assess a claimant’s RFC based upon all
records, the observations of treating physicians and others, and
the claimant’s own description of his symptoms and limitations. 20
C.F.R. § 404.1545; Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.
1995); Goff, 421 F.3d at 793.
A claimant’s RFC is a medical question, and there must be
some medical evidence, along with other relevant, credible evidence
in the record, to support the ALJ’s RFC determination.
Hutsell v. Massanari, 259 F.3d 707, 711-12 (8th Cir. 2001); Lauer,
245 F.3d at 703-04; McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
Although an ALJ must determine the claimant’s RFC based
upon all relevant evidence, the ALJ is not required to produce
evidence and affirmatively prove that a claimant can lift a certain
weight or walk a certain distance.
Pearsall, 274 F.3d at 1217 (8th
Cir. 2001); McKinney, 228 F.3d at 863.
supported by some medical evidence, “the burden of persuasion to
prove disability and demonstrate RFC remains on the claimant.”
Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010).
cannot meet this burden on his statements alone.
There must be
medical signs and laboratory findings showing an impairment which
- 30 -
could reasonably be expected to produce the symptoms alleged and
which, when considered with all of the other evidence, would lead
to the conclusion that the claimant is disabled.
20 C.F.R. §§
While plaintiff challenges the ALJ’s RFC determination,
he does not set forth any argument specifically challenging the
ALJ’s credibility determination.
Because the ALJ must first
evaluate a claimant’s credibility before determining his RFC,
undersigned conducted a full analysis of the ALJ’s credibility
determination and concludes that it is supported by substantial
evidence on the record as a whole.
In his decision, the ALJ wrote that he had considered all
symptoms and the extent to which they could reasonably be accepted
evidence, based on the requirements of 20 C.F.R. §§ 404.1529 and
416.929, and SSRs 96-4p and 96-7p.
The ALJ then noted several
inconsistencies in the record that detracted from the credibility
of plaintiff’s subjective complaints.
For example, the ALJ noted
evidence in the record that plaintiff was working in September and
October of 2009.
There is also evidence in the record that
plaintiff was working during a period he alleged total disability
allegations of symptoms precluding all work. Dunahoo v. Apfel, 241
F.3d 1033, 1038-39 (8th Cir. 2001) (seeking work and working at a
- 31 -
job while applying for benefits are activities inconsistent with
complaints of disabling pain); Comstock v. Chater, 91 F.3d 1143,
1147 (8th Cir. 1996) (claimant’s work activities during claimed
disability period held inconsistent with subjective complaints).
The evidence that plaintiff was performing some type of work is
also directly inconsistent with his hearing testimony.
above, the ALJ repeatedly asked plaintiff about his work activity
since April 2, 2007, and plaintiff repeatedly denied performing any
and all work since that date.
The ALJ was entitled to consider
credibility. See Simmons v. Massanari, 264 F.3d 751, 756 (8th Cir.
2001) (the ALJ’s adverse credibility determination was supported by
evidence that the claimant had given inconsistent statements,
including lying about his age to enter military service); Ply v.
Massanari, 251 F.3d 777, 779 (8th Cir. 2001) (an ALJ is entitled to
consider a claimant’s inconsistent statements in determining his
Similarly, the ALJ noted that Dr. Sommer observed, on
more than one occasion, that plaintiff’s pain response seemed
The ALJ was entitled to consider this evidence as
detracting from plaintiff’s credibility.
See Jones v. Callahan,
122 F.3d 1148, 1152 (8th Cir. 1997) (noting that ALJ may consider
evidence that a claimant has exaggerated his or her symptoms when
evaluating claimant’s subjective complaints).
plaintiff’s symptoms could not be explained by MRI findings.
- 32 -
ALJ’s observation is supported by the record, and is consistent
with the balance of the medical information of record, which the
ALJ exhaustively discussed in his decision.
As the foregoing
summary of this medical information indicates, objective testing
documented largely mild results or results that did not account for
plaintiff’s symptoms, and examination revealed mostly normal or
mild findings. While the lack of objective medical evidence is not
dispositive, it is an important factor, and the ALJ is entitled to
consider the fact that there is no objective medical evidence to
404.1529(c)(2), 416.929(c)(2); Kisling v. Chater, 105 F.3d 1255,
1257-58 (8th Cir. 1997); Cruse v. Bowen, 867 F.2d 1183, 1186 (8th
Cir. 1989) (the lack of objective medical evidence to support the
degree of severity of alleged pain is a factor to be considered);
see also Choate v. Barnhart, 457 F.3d 865, 871 (8th Cir. 2006) (ALJ
properly discredited the plaintiff’s testimony regarding selflimitation
inconsistent with the medical records).
The ALJ also noted that, when plaintiff saw Dr. Jost on
April 8, 2010, his present medication list included no prescription
inconsistent with allegations of disabling impairments.
Apfel, 195 F.3d 427, 430 (8th Cir. 1999).
Of some additional note is the fact that, when seeking
consistently complain of the same severe musculoskeletal pain he
- 33 -
described during the hearing.
Stephens v. Shalala, 46 F.3d 37, 38
(8th Cir. 1995) (per curiam) (discrediting later allegations of
back pain when no complaints made about such pain while receiving
The undersigned also notes that Dr. Acosta-
Rodriguez observed, on August
2007, that plaintiff asked
“particular questions about going back to work or not,” that his
evaluation,” that Dr. Acosta-Rodriguez had “some concerns regarding
some of his questioning regarding long term complications and pain
and disability for such a young male” and “thought it was rather
contribute to an adverse credibility determination when, as here,
other factors cast doubt upon the claimant’s credibility.
v. Barnhart, 292 F.3d 576, 581 n. 4 (8th Cir. 2002).
Where adequately explained and supported, credibility
findings are for the ALJ to make. See Tang v. Apfel, 205 F.3d 1084,
1087 (8th Cir. 2000).
The undersigned has carefully reviewed the
record, and believes that the ALJ’s finding that plaintiff’s
explained, and was supported by substantial evidence on the record
as a whole.
See Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir.
2003) (ALJ properly discredited claimant’s allegations of disabling
impairments based upon numerous inconsistencies in the record;
including the lack of objective medical evidence, and evidence that
claimant gave different accounts at different times).
- 34 -
Challenging the ALJ’s RFC assessment, plaintiff argues
that there is no basis in the record for ALJ’s decision to
disregard evidence from Dr. Beckmann. Review of the ALJ’s decision
reveals no error.
A treating physician’s opinion is generally entitled to
substantial weight, but it does not automatically control, because
the ALJ must evaluate the record as a whole.
Davidson v. Astrue,
501 F.3d 987, 990 (8th Cir. 2007) (citing Charles v. Barnhart, 375
F.3d 777, 783 (8th Cir. 2004)). When an ALJ discounts a treating
physician’s opinion, he should give “good reasons” for doing so.
Davidson, 501 F.3d at 990 (citing Dolph v. Barnhart, 308 F.3d 876,
878 (8th Cir. 2002)).
According to the Regulations and to Eighth
Circuit precedent, a treating physician’s opinion must be wellsupported
diagnostic techniques to be entitled to controlling or substantial
20 C.F.R. §§ 404.1527(d)(3), 414.927(d)(3); Reed
Barnhart, 399 F.3d 917, 920 (8th Cir. 2005). If justified by
substantial evidence in the record as a whole, the ALJ can discount
the opinion of an examining physician or a treating physician. See
Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997); Ward v.
Heckler, 786 F.2d 844, 846 (8th Cir. 1986).
As the ALJ observed, on November 24, 2009, Dr. Beckmann
disability.” (Tr. 339).
On December 17, 2009, in response to
interrogatories, Dr. Beckmann listed plaintiff’s diagnoses and, in
response to a question whether plaintiff should lay down if he
- 35 -
experienced back pain, wrote “yes.”
The ALJ wrote that
Dr. Beckmann’s opinions were entitled to little weight because they
laboratory diagnostic techniques, and they were inconsistent with
and unsupported by the medical evidence of record, including Dr.
Beckmann’s own treatment notes.
The ALJ properly considered Dr.
Dr. Beckmann’s opinion evidence fails to document any
medically acceptable clinical and laboratory diagnostic techniques
that would tend to support the opinions he offered.
were therefore not entitled to controlling or substantial weight.
20 C.F.R. §§ 404.1527(d)(3), 414.927(d)(3); Reed, 399 F.3d at 920.
Given the absence of objective medical evidence and, as discussed
supra, the fact that Dr. Beckmann’s treatment notes most often
documented essentially normal examination results, it seems most
likely that his opinions were largely based upon plaintiff’s
An ALJ may discount an opinion that is
based largely on a claimant’s subjective complaints rather than
objective medical evidence.
Kirby v. Astrue, 500 F.3d 705, 709
(8th Cir. 2007); Vandenboom v. Barnhart, 421 F.3d 745, 749 (8th
Cir. 2005) (an ALJ was justified in giving less weight to a
treating physician’s opinion where the physician failed to document
(affirming ALJ’s assessment of treating physician’s opinion as
unsupported by objective medical tests or diagnostic data and not
- 36 -
conclusive in disability determination; the weight given to even a
treating physician’s opinion is limited if it is only a conclusory
inconsistent with the medical evidence in the record as a whole.
Multiple physical examinations, including Dr. Beckmann’s, contained
very little in the way of objective findings of musculoskeletal
abnormalities, and most consistently documented that plaintiff had
normal range of motion, normal strength, normal reflexes, normal
gait, no edema, no joint stiffness, no muscle atrophy or spasm, no
other neurologic or motor deficits, and negative straight leg raise
(Tr. 219, 222-25, 228, 246, 255, 268-69, 278-79, 318,
325, 329, 328-31, 333-34, 342, 352, 358).
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. Beckmann’s opinion evidence is also inconsistent with
his own treatment records. As noted above, Dr. Beckmann repeatedly
documented little to no musculoskeletal findings upon examination.
In addition, as the ALJ observed, Dr. Beckmann’s January 15, 2010
treatment note (dated one month after Dr. Beckmann’s interrogatory
responses) was inconsistent with the opinion evidence.
treatment note, despite plaintiff’s complaints of back pain so
severe that he spent most of the day in bed, Dr. Beckmann’s
examination of plaintiff yielded nothing in the way of objective
findings, and he diagnosed plaintiff simply with “chronic low back
- 37 -
(Tr. 27, 342).
Plaintiff contends that this
treatment note supports Dr. Beckmann’s opinion evidence inasmuch as
Dr. Beckmann observed that plaintiff was lying in bed all day due
to back pain.
However, Dr. Beckmann was not stating his opinion
that plaintiff’s condition required him to lay in bed all day.
Instead, Dr. Beckmann was merely documenting plaintiff’s subjective
contains nothing in the way of objective findings to support the
conclusion that plaintiff’s condition rendered him bedridden. See
Choate v. Barnhart, 457 F.3d 865, 871 (8th Cir.
discredited when they are inconsistent with treatment records). In
addition, in an earlier treatment note, Dr. Beckmann observed that
plaintiff, while describing his debilitating shoulder pain, “moved
both shoulders through a full, wide arc demonstrating no deficits
in range of motion.”
When a treating physician’s
treatment notes are inconsistent with his opinion evidence, the
residual functional capacity assessment.
See Hacker v. Barnhart,
459 F.3d 934, 937 (8th Cir. 2006); Davidson v. Astrue, 578 F.3d
838, 842 (8th Cir. 2009) (“It is permissible for an ALJ to discount
an opinion of a treating physician that is inconsistent with the
physician’s own clinical treatment notes”).
Plaintiff takes great issue with the ALJ’s statements
responses and Dr. Beckmann’s findings when he next saw plaintiff.
- 38 -
In the context of noting inconsistencies between Dr. Beckmann’s
opinion evidence and his treatment records, the ALJ observed that
Dr. Beckmann’s December 17, 2009 interrogatory responses were dated
just one month before his examination of plaintiff yielded nothing
in the way of
objective clinical findings.
this observation on page 28 of the administrative transcript, the
ALJ mistakenly listed the date of that subsequent examination as
December 15, 2009, which is actually two days before the date of
Plaintiff strenuously argues that the ALJ’s
treatment note as dated February 15, 2010, argues that the ALJ
(Docket No. 18 at 21-23).
Review of the
ALJ’s decision reveals no error.
Earlier in his decision, the ALJ observed the proper date
of the subsequent treatment note as “January 15, 2010 (date of
service),” one month after Dr. Beckmann’s interrogatory responses.
The ALJ’s later observation that the treatment note was
dated two days before the interrogatory responses is obviously a
typographical error, in that the ALJ first correctly listed the
date of the subsequent treatment note, correctly observed the date
of the interrogatory responses, and correctly observed that Dr.
Beckmann saw plaintiff one month after completing the interrogatory
As noted above, while the “[r]esult date” of the treatment
note is indeed February 15, 2010, the date of service is clearly
listed as January 15, 2010. (Tr. 341).
- 39 -
See Quaite v. Barnhart, 312 F. Supp. 2d 1195, 1199-1200
(E.D. Mo. 2004) (whether misstatement is typographical error is to
There is no error in the ALJ’s findings concerning the
timing of Dr. Beckmann’s interrogatory responses in relation to his
subsequent treatment note.
Plaintiff also contends that Dr. Beckmann’s February 14,
2011 MSS, generated nearly six months after the ALJ’s decision and
submitted to the Appeals Council, supports his applications and
corrects the deficiencies that the ALJ cited in discrediting Dr.
Beckmann’s other opinion evidence.
Plaintiff’s arguments are
Judicial review under 42 U.S.C. § 405(g) is confined to
the evidence before the Commissioner at the time of his decision.
42 U.S.C. § 405(g).
While additional evidence may in limited
circumstances form the basis for remand, a claimant must show that
the new evidence is material, and that there was good cause for the
failure to incorporate that evidence into the record before the
Mouser v. Astrue, 545 F.3d 634, 63637 (8th Cir.
2008) (quoting 42 U.S.C. § 405(g)).
To be material, new evidence
must be non-cumulative, relevant, and probative of a claimant’s
condition during the time period for which benefits were denied,
and there must be a reasonable likelihood that it would have
changed the Commissioner’s determination.
294 F.3d 1019, 1025 (8th Cir. 2002).
Krogmeier v. Barnhart,
“Where, as here, the Appeals
Council considers new evidence but denies review, [the reviewing
- 40 -
court] must determine whether the ALJ’s decision was supported by
substantial evidence on the record as a whole, including the new
Davidson v. Astrue, 501 F.3d 987, 900 (8th Cir. 2007).
In his brief, plaintiff focuses upon Dr. Beckmann’s MSS.
However, the MSS satisfies none of the foregoing requirements, and
in no way undermines the ALJ’s decision.
There is no evidence that
Dr. Beckmann’s MSS is probative of plaintiff’s condition during the
relevant time period, and plaintiff does not demonstrate good cause
for failing to incorporate the MSS into the record earlier.
MSS is dated February 14, 2011, and contains nothing to indicate
that it describes plaintiff’s condition during the time period for
which benefits were denied.
The MSS does not remedy any of the
deficiencies the ALJ observed when discounting Dr. Beckmann’s
opinion evidence, and there is no reasonable likelihood that the
MSS would have changed the ALJ’s decision.
In the MSS, Dr.
Beckmann included no clinical or laboratory findings to support the
assessed restrictions, despite the fact that the MSS form included
a separate question specifically soliciting this information.
Had the ALJ reviewed the MSS, he would most likely have
treated it in the same manner as Dr. Beckmann’s other opinion
None of the evidence submitted to the Appeals Council,
Plaintiff also states, in conclusory fashion, that the
ALJ erred by giving weight to Dr. Acosta-Rodriguez’s opinion that
plaintiff’s impairment might preclude some types of work, but not
- 41 -
Review of the ALJ’s decision reveals no error.
Commissioner correctly argues, Dr. Acosta-Rodriguez formed his
See 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1) (opinions
of examining sources are generally given more weight).
Beckmann’s opinions, Dr. Acosta-Rodriguez’s opinion is consistent
with and supported by the balance of the evidence in the record as
See 20 C.F.R. §§ 404.1527(d)(4), 416.927(d)(4) (opinions
that are consistent with the record as a whole will generally be
given more weight).
Finally, the ALJ did not rely exclusively on
Dr. Acosta-Rodriguez’s opinion, but instead formulated plaintiff’s
RFC after fully considering and properly weighing all of the
medical and other evidence in the record as a whole.
Plaintiff also suggests that the ALJ failed to properly
consider the effects of his obesity in combination with his other
impairments in accordance with SSR 02-1P.
There is absolutely no
merit to the suggestion that the ALJ in this case failed to
properly consider plaintiff’s obesity.
obesity was a severe impairment.
The ALJ determined that
The ALJ referred to
treatment notes indicating that plaintiff was obese.
The ALJ cited SSR 02-1P, quoted passages therefrom, and wrote:
“[t]he effects of the claimant’s obesity have been considered in
determining the above-stated residual functional capacity for the
The ALJ also limited plaintiff to sedentary
work and included other significant restrictions on his mobility.
- 42 -
Review of the ALJ’s RFC determination reveals that he
properly exercised his discretion and acted within his statutory
authority in evaluating the evidence of record as a whole.
reviewed the ALJ’s decision with the requisite deference, the
undersigned concludes that it is supported by substantial evidence
on the record as a whole.
For all of the foregoing reasons, on the claims that
Commissioner’s decision is supported by substantial evidence on the
record as a whole, and should therefore be affirmed.
is substantial evidence to support the decision, reversal is not
different outcome, or because another court could have decided the
Cir.2001); Browning, 958 F.2d at 821.
Commissioner is affirmed, and plaintiff’s Complaint is dismissed
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 30th day of August, 2013.
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